More than a month after the arbitral tribunal set up under the United Nations Convention on the Law of the Sea decided in favor of the Philippines in its arbitration case against China on disputes in the South China Sea, both countries are looking for a way to end their impasse.
China has rejected the ruling as invalid, but it faces international opprobrium as an outlier who doesn’t live by global norms. An accord with Manila on issues that don’t touch Chinese core interests, such as fisheries, is seen as one way of salvaging its image.
The Philippines, while reveling in its legal triumph, realizes that there is no way to enforce the ruling of the tribunal in The Hague.
So, for both countries, it is worth holding exploratory discussions to see what they might be able to agree on without either side compromising on territorial claims.
The preliminary contacts last week in Hong Kong evidently went well. Former President Fidel Ramos, who led the Philippine team, said after the discussions that he had talked about fishing rights. The Chinese side, he said, simply noted the Philippine concerns while agreeing on the need for further talks to build confidence and lower tensions.
Interestingly, Ramos included Vietnam as another country with historic fishing rights in the disputed waters. This could be significant given China’s reliance on history for its territorial claims.
The Chinese team was jointly led by Fu Ying, former vice foreign minister and now head of the foreign affairs committee of China’s National People’s Congress, and Wu Shicun, president of the National Institute for South China Sea Studies, a think tank.
Both sides said these were not official negotiations, but simply meetings of “old friends.” As it happens, Fu Ying was appointed Chinese ambassador to the Philippines in 1998, Ramos’ last year as President.
Neither side mentioned the fact that it was in 1994-95, while Ramos was President, that the China-Philippine dispute erupted into the open when China occupied Mischief Reef, which was submerged at high tide, and started to build structures on stilts, claiming that they were shelters for fishermen. Today, the reef has been converted into a 5.5 million square meter artificial island, complete with a landing strip for planes.
The Mischief Reef incident eventually blew over and Ramos, after his retirement, became known as a friend of China. He, together with former leaders of Australia and Japan – Bob Hawke and Morihiro Hosokawa – proposed the establishment of the Boao Forum, which nowadays is often referred to as the Davos of Asia.
Fu and Wu recently co-authored a lengthy article, which appeared in the May 9 issue of The National Interest magazine called “South China Sea: How We Got to this Stage.”
In the article, they argue that Chinese sovereignty claims were unchallenged by the international community before the 1930s and says that China, as a country that had been the victim of imperialism, “wants first and foremost to protect its sovereignty.” The same reasoning can be applied, in spades, to the Philippines.
At the end of the Hong Kong discussions, a statement was signed by Ramos, Fu and Wu, which said that, in addition to marine conservation and fishing rights, the two nations should cooperate on tourism, investment and cracking down on drugs and corruption. All these are non-sensitive issues and the two sides should be able to make progress on them.
Looking into the future, the Fu-Wu article provides some clues. For one thing, it indicates that while China claims virtually all land features in the South China Sea and considers their “occupation” by other countries to be illegal, it does not plan any action to change the status quo.
More significantly, the article indicates a Chinese willingness to return to a policy of joint development first espoused in the 1990s. This policy of “shelving disputes and seeking joint development,” Fu and Wu said, is “for the sake of cooperation and regional stability.”
An agreement on joint development logically should be the aim of all claimants in the South China Sea. However, joint development, while fine in theory, is extremely difficult to achieve. It was China’s stated policy on the Diaoyu/Senkaku Islands dispute with Japan in the 1970s but no accord was ever reached.
For now, the Philippines and China should aim for lower-hanging fruit. An accord on fishing rights or even on marine conservation, while less sexy, should be welcomed as a big step forward. The next step is official talks, probably in Beijing.