Compromise needed in the Philippines over its South China Sea policy
Mark J. Valencia says the Philippines needs to find some balance in its South China Sea claims – both with Beijing and in its own domestic politics, to prevent the dispute between idealists and realists from paralysing the country
Philippines domestic politics is currently racked by a polarising debate over its policy on China’s claims in the South China Sea. Both sides’ arguments have merit and hopefully an interim compromise can be reached, though it will be difficult.
The Philippines, under then president Benigno Aquino, brought the dispute before an international arbitration panel set up under the auspices of the UN Convention on the Law of the Sea (UNCLOS). In July 2016, the panel ruled overwhelmingly in the Philippines’ favour. However, the new Philippines president, Rodrigo Duterte, abruptly pivoted foreign policy away from the United States, and did not seek to take immediate advantage of the panel’s ruling. Instead, he forged better relations with China, gaining Beijing’s political cooperation and economic largesse. But this policy shift outraged international and domestic legal idealists, as well as Philippine Americanophiles and nationalists, sparking bitter opposition and a polarising domestic dispute.
According to the July 2016 arbitration decision, China’s “nine-dash line” historic claim to a large part of the South China Sea and its resources is not in consonant with UNCLOS and thus legally invalid. This means the Philippines’ claims to resources within its claimed maritime zones – like the fisheries outside the territorial sea around Scarborough Shoal and any oil or gas under the Reed Bank – are its alone.
But China disagrees. It refused to participate in the arbitral proceedings or to accept the result. That means China’s claims to the area and the features and resources within it still stand, and it has made clear it will defend them to the full – against the Philippines and anyone else. Indeed, its recent actions and words regarding the South China Sea directly defy the arbitration decision and rival claims. In sum, China – like big powers before it – has showed it can and will defy international law.
The Philippines domestic dispute has become emotional, with some calling Duterte’s position “appeasement”. Supreme Court Justice Antonio Carpio, a member of the team that brought the question of the validity of China’s claims to international arbitration, said: “Let it not be said by future generations of Filipinos that today’s generations ... slept while China seized the West Philippine Sea”.
He argues that anything short of China’s presumably public recognition of Philippine claims and sovereignty over the area would violate the Philippine constitution.
But Carpio also acknowledges that “war is not an option”, and clings to the hope that domestic and international opprobrium will change China’s policy, which is not realistic in an age when norms and institutions like international law are in flux. The alternative to Duterte’s policy would probably be no access to its own resources and crippling economic, political and even military punishment by China.
Duterte foresaw the consequences of immediately pressing the issue and decided the costs to the Filipino people would far outweigh the theoretical benefits. He probably reckoned that the Philippines’ future lies in Asia, that the Philippines is militarily weak and that no country – including the US – is likely to come to its aid against China. So he sought a temporary compromise.
In practice, the two sides may not be amendable to compromise. Idealists maintain that implementation of international law – the arbitration decision – China’s prior recognition of it, and Philippine sovereignty, are sine qua non. Realists – the Duterte administration – see the situation as requiring deft hedging and the art of delay until time is more ripe for resolution within existing international law. They do not see the need for such recognition to be immediate and overt.
Perhaps clever lawyers, analysts and decision-makers can devise an interim solution acceptable to both sides domestically and to both countries. They bear some responsibility because they got the Philippines into this jam by achieving a legal victory while ignoring the consequences. But both sides must countenance a less than legally pure interim political solution. Recognition of international law in this situation is a goal that should not be surrendered. But it can be delayed.
For the time being, Duterte is trying to negotiate shared access to the resources. The result so far has been continued access to the fisheries for Filipino fishermen and the possibility of “joint development” of any oil and gas. However, critics fear – with justification – that “joint development” may have different meanings for each country and the arrangement could be interpreted as implicitly recognising the validity of China’s claim. Moreover, according to prominent Philippine international relations analyst Herman Kraft, “If we enter into a joint development agreement without the joint development agreement actually taking into consideration the contents of the arbitral award, then we are basically saying the arbitral award is not something we’d like to recognise.”
Certainly, any joint development arrangement must contain a clause that nothing in the agreement constitutes recognition of the validity of each others’ claim.
Nevertheless, the Duterte administration should be careful not to prejudice its claims or rights. It should continue to protest privately or publicly when it believes China has violated any understanding or the details of the arbitration result itself. It should avoid making any official statement or taking any action that undermines its claims, including acknowledging or even implying that any area that legally belongs to it is “disputed”. Doing so could, in the long term, legally weaken its claim and the status of the arbitration ruling itself. However, the arbitration panel’s ruling is now part of international law and not likely to change easily or quickly.
The two schools of thought should meet and discuss possible ways to resolve this conundrum. This would be better than allowing the problem to split the Filipino political class to the core. Doing so would be domestically dysfunctional and counterproductive, and would provide an opportunity for outsiders to interfere in the Philippine political system.
All concerned should not – in Voltaire’s wise words – “make perfect the enemy of the good”.
Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China