The arbitral award handed down last week by a tribunal convened under the Permanent Court of Arbitration on the South China/West Philippine Sea dispute presented in his first week of office an immediate and consequential test for President Rodrigo Duterte. In my view, the new Philippine President passed the initial test. So far there is calm in the seas in dispute and more importantly calm in the streets of Beijing and Manila.
Slam dunks are spectacular but if the aerial artist lands badly, it would not be remembered. Indeed, in the West Philippine Sea, the Philippines won a legal slam dunk; thankfully, the soft landing so far preserves that win.
But the next steps are critical.
Regardless of any possible policy changes still unfolding from the Aquino-Duterte transition, the court’s decision is legally binding on both the Philippines and China. And although international law comes with few direct enforcement mechanisms, the world and our country are not entirely without remedies. Justice Antonio Carpio, who has brilliantly provided much of our thinking around this dispute, has written in the Wall Street Journal that, in some ways, the arbitral decision is self-enforcing. Now that the legal status of the SC/WPS maritime zones are clear —high seas for a significant part, exclusive economic zones for many of the countries with little overlap given the finding that the region has more rocks than islands—maritime powers can act accordingly whether is it refusing to abide by no-fly zones imposed by China or using sea passages allowed in high seas as well as exclusive economic zone.
For the Philippines, the constitutional and legal implications are clear. The areas of the SC/WPS that are our exclusive economic zone are reserved solely for Filipinos. We must bear that in mind when contemplating any joint development agreement. In addition, even if a legal framing that is constitutionally compliant can be found, such development must be approached with caution. As Professor Diane Desierto, one of the world’s and the country’s top international legal expert and scholar, has observed and articulate in a Facebook post: “Make no mistake about ‘joint development agreements’ for petroleum and natural gas resources in the South China Sea. Those who are most vocal in proposing it for the Philippines, know exactly that multibillion dollars are at stake—and the big question is whether those billions actually go to real Philippine development that will be sustainable and accountable. Entering into these agreements also makes the Philippines vulnerable to disputes over contract or treaty claims of foreign investors. There is a Philippines-China bilateral investment treaty with compulsory investor-State arbitration. The Philippines should be careful that it does not end up being taken to multibillion dollar arbitration by patriotic Chinese investors.”
How then can we move forward?
China boycotted the legal proceedings from the beginning and has long said that it would not abide by the court’s decision. We should not expect Beijing to simply decamp from the artificial islands it has just built, so it will fall to concerned states to reinforce the legitimacy of this decision.
What is important is that we have succeeded in defending our legal rights over the disputed islands. We should continue our diplomatic initiatives, securing the support of our Asean partners, United States, Japan, India, the European Union, and other countries. They are neutral on the region’s sovereignty disputes and are firmly supportive of the legal process, engaging in their own public diplomacy effort bolstering the decision. China of course has been engaged in coalition-building efforts of its own—with less success, it seems.
Although the Philippines was optimistic in winning the arbitration, few expected such a total victory, winning all our major points. Legally, it is the best scenario that could be imagined. But such a complete victory also poses it own challenge. Now that the ruling has arrived, as one observer pointed out, the Philippines and our new President have been thrown a geopolitical curveball.
Foreign Affairs Secretary Perfecto Yasay has been criticized for his somber demeanor when he spoke before the press after the arbitral award was released. His call for “all those concerned to exercise restraint and sobriety” was interpreted as a sign of weakness. Worse, some even described Secretary Yasay as being saddened by our victory. This is hogwash in my view.
Secretary Yasay’s statement and his tone were in fact exactly just right. Unpopular at first, his words and actions were the most reasonable to take. Indeed, as I immediately said when the decision came out, the next step for us is to do nothing. In fact, we should hope that all those concerned should, at least for the next several weeks, do nothing.
As Inquirer’s John Nery observed, “One thing Filipinos will watch out for is the rhetoric that will come out of Beijing. It is good that calls for war are being censored. It is not unexpected that Chinese officials will repeat the standard line about “ancient rights” and “indisputable sovereignty.” It is only logical to expect the new Chinese facilities, built on reclaimed land in the Spratlys, to remain in place, and for Beijing to defend its presence and purpose as civilian in nature. It is entirely likely that China will once again raise the possibility of imposing an air defense identification zone, or take the United States to task for conducting naval patrols in or near disputed areas. But as long as the language we’ve heard before is the same language we will hear in the next several weeks, the Philippines will see this as encouraging. It is the nearest equivalent to China doing nothing.”
In the meantime, we should prepare for re-engaging with China on both bilateral and multilateral fronts. This time, we have the arbitral tribunal’s decision as leverage. Hopefully, former President Fidel V. Ramos will lend his gravitas to this important mission. He is the right man for the job as he knows the meaning of win-win solutions. For the moment, we should forget about joint development or commercial agreements with China on the resources of the West Philippine Sea. Let’s start instead with something so doable and also urgent—bilateral cooperation on the protection of the marine environment. This is non-controversial, within the Constitution, and can rebuild trust. As I will write in the next couple of columns, the arbitral tribunal ruled that China has not done well by the marine environment. Perhaps, they can rectify this by cooperating with us to rehabilitate the fisheries, reefs and other ecosystems affected by their actions. Among others, the Philippines, China and other countries can take up the suggestion of Justice Tony Carpio (which was also suggested earlier by environmental lawyer Tony Oposa) to make the whole area a marine peace park for a hundred years.
Yes, from a slam dunk to a soft landing, the West Philippine Sea conflict can be resolved in a win-win manner.
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