MANILA, Philippines – Three years after winning against China in an international court, the Philippines is achieving the exact opposite of its legal victory over the South China Sea.
President Rodrigo Duterte recently said he allowed China to fish in the West Philippine Sea, part of the South China Sea that is exclusive to the Philippines.
Duterte also said he is planning to use his upcoming State of the Nation Address to defend China's right to fish in exclusive Philippine waters. He raised this issue after a Chinese ship sank a Filipino fishing boat in Recto Bank (Reed Bank) in the West Philippine Sea, fueling discontent about Duterte's China policy.
This was unimaginable 3 years ago. This was because the ruling by a Hague tribunal on July 12, 2016, invalidated China's claim over the entire South China Sea, and upheld the Philippines' rights over its 200-nautical mile exclusive economic zone (EEZ) under the United Nations Convention on the Law of the Sea (UNCLOS).
Duterte however decided to shelve this ruling in exchange for loans and grants from Beijing.
By shelving the ruling, Manila is now losing to Beijing.
In fact the Duterte government did not celebrate or say a single word on the anniversary of the Hague ruling on Friday.
Only the usual faces – Supreme Court Senior Associate Justice Antonio Carpio, former foreign secretary Albert del Rosario, former ombudsman Conchita Carpio Morales, and lawyer Chel Diokno – marked the event through a forum organized by the Stratbase Albert del Rosario Institute at the University of the Philippines in Bonifacio Global City, Taguig.
"The present administration has done absolutely nothing to enforce the award," Carpio said in a speech on Friday.
Referring to the Duterte government, Carpio added, "It has committed acts, intentionally or unintentionally, that risk waiving or diminishing the arbitral award."
"We are weakening our position by agreeing that China can fish in our exclusive economic zone," said the justice, one of the leading advocates of the West Philippine Sea. (READ: Carpio warns Duterte vs defending China in SONA 2019)
Del Rosario, under whose watch the Philippines sued China, slammed Duterte's verbal fishing deal with Chinese President Xi Jinping. "Is this to be viewed as a successful Chinese invasion without a shot being fired?"
"The problem we face today is that the award we won has been shelved, resulting in more unlawful acts of intimidation and bullying in the South China Sea," Del Rosario said.
China has, in fact, complied with only two of 11 parts of the Hague ruling, according to the Washington-based Asia Maritime Transparency Initiative (AMTI) of the Center for Strategic and International Studies (CSIS).
First, the AMTI said China allowed Filipinos to fish along the exterior of Panatag Shoal (Scarborough Shoal). This complied with the aspect of the ruling that China "illegally blocked traditional Filipino fishing at Scarborough Shoal."
"By late 2016, in an apparent gesture of goodwill to the Duterte government, China coast guard vessels stationed at Scarborough began to allow Filipino fishing vessels to operate along the exterior of the reef, though they were not permitted to fish inside the lagoon," said the AMTI.
"Nonetheless, this is the one aspect of the arbitral award with which China is most clearly in compliance," said the think tank.
Second, the AMTI said China technically stopped destroying the marine environment in the South China Sea – because its island building is over.
"China completed its dredging and landfill work in the Spratly Islands by late 2016, and its last documented island building anywhere in the South China Sea was in the Paracels in mid-2017," said the AMTI.
It added, "But having run out of space for new landfill, China is now technically in compliance with the bulk of this section of the ruling. That could change, however, should China launch new dredging or landfill work at Scarborough Shoal or elsewhere."
China, however, has not complied with the following portions of the Hague ruling, according to the AMTI:
Getting China to comply
China's noncompliance is bad enough. What's worse is the Philippines' refusal to enforce the Hague ruling.
It came to a point that the United States, Australia, and Japan had to urge the Philippines in August 2017 to abide by its own legal victory against China over the South China Sea.
Why? Duterte often mentions China's supposed threat of war if the Philippines brings up the arbitral award. Experts have debunked Duterte's claim, saying China cannot afford to wage war against the Philippines.
The other complication is, there is no international police to enforce the Hague ruling.
But there is a way, said the Philippines' lead counsel against China, Paul Reichler.
"How do you get a big and powerful state to comply with its obligations especially if you are a much smaller and much less powerful state? It has to be by joining forces with other states that have similar interests in encouraging China, in pressuring China, to comply with international law and to respect their sovereign rights," Reichler told Rappler.
He said the Philippines, for instance, can join forces with Indonesia, Vietnam, and other Southeast Asian states "that have identical interests with the Philippines."
"I think China is so big and so powerful that it can only be confronted by a group of states acting together," Reichler said.
Carpio shared similar insights on Friday. He said freedom of navigation operations (FONOPS) of naval powers, such as the United States, the United Kingdom, and Japan "enforce the arbitral award" in the South China Sea.
"These FONOPS are the most robust enforcement of the arbitral award," he said. Unfortunately, the Duterte government "has distanced itself from these FONOPS."
Most Filipinos back proposals like these, according to a recent survey by the Social Weather Stations (SWS). The SWS said 84% of Filipinos believe "it is right for the government to form alliances with other countries that are ready to help us in defending our security in the West Philippine Sea."
A multilateral approach is seen as a deterrent to China's aggressive behavior in the South China Sea. The Asian giant detests being shamed in multilateral settings, and prefers bilateral talks with its less powerful neighbors.
Reichler said the Philippines as a sovereign state has the right to choose the best approach toward China.
"One would hope that there would be a way, however, to obtain the economic benefits from China without minimizing the sovereign rights that the Philippines has, and has expended a lot of effort to win in the waters of the West Philippine Sea or South China Sea," he said.
Despite the Duterte government's approach, the men and women behind the Hague ruling remain hopeful.
Does Reichler, for instance, sometimes think or feel their efforts went to waste?
Reichler answered, "Never. Never."
The lawyer pointed out "very positive benefits" from the Hague ruling, such as Filipino fishermen fishing again at Scarborough Shoal. "The law is now very clear: The rights of the Philippines are clearly and firmly and forever established in the West Philippine Sea or South China Sea."
"Governments come and go, but the state survives forever, and the state of the Republic of the Philippines, whoever occupies the government, will enjoy these rights under law permanently," Reichler said.
He said China, too, will eventually change its leadership, and "we may see an evolution in China toward a state that is more respectful of international law."
He said the Philippines, through whatever words or actions, can't waive the arbitral award.
"That can't be waived. That case is over, the award is there, it's a permanent fixture in the international legal system. It's a different question whether the Philippines decides to enjoy or how to enjoy the rights that it had vindicated under that award," Reichler said.
The lawyer said the Philippine government, based on his understanding, "has not waived any rights under the award." But the Philippines "may not be exercising" these rights to the full extent possible, and this "might be creating a vacuum which China is only too happy to fill."
"So it might make it more different in the future to assert these rights and to exercise these rights, but they haven't been waived. The rights will always be the rights of the Philippines and it will be up to the Philippines when and how to exercise and strengthen them," Reichler said.
Duterte's approach shows the wisdom of the Aquino government's move to bring China to court. Under the Aquino administration, government officials said they filed a case against China to secure a permanent legal victory that cannot be altered no matter who the next Philippine president is.
Reichler said, "This is a judgment that will last forever, and whose effects will not disappear, regardless of the short-term policy of any particular government."
Duterte has 3 years left in office.
On the 3rd anniversary of the Hague ruling, defenders of the West Philippine Sea said it now depends on the people, not their government.
"It's time for us all to wake up," Diokno said.
After all, said Morales, "the West Philippine Sea belongs to Filipinos, not to Duterte, not to China." – Rappler.com
Paterno R. Esmaquel II is a senior reporter leading Rappler’s coverage of religion and foreign affairs. He finished MA Journalism in Ateneo and MSc Asian Studies (Religions in Plural Societies) at RSIS, Singapore. For story ideas or feedback, email him at firstname.lastname@example.org.