Sui Generis

Memo for next president

Marites Dañguilan Vitug
Memo for next president
Towards a multilateral strategy for the South China Sea

If there’s one word that could describe President Duterte’s China policy, it is this: bereft. Bereft of political will. Bereft of a creative and bold multilateral approach to keep China at bay in the South China Sea.

“Duterte should have taken the lead in ASEAN in asking member countries for support,” Thailand’s former foreign minister, Kasit Piromya, recently said. He was referring to the 2016 Philippine victory over China in its maritime dispute in the South China Sea (SCS). “We in ASEAN need to stand together.”

The Philippines has missed out in working with its neighbors, at least some of them, to ease tension in the contentious waters and send strong signals to China that it cannot treat the SCS as its own lake.

We’ve not been lacking in ideas. Since 2016, when the Philippines basked in its historic win in the international arbitral tribunal, numerous proposals for dealing with China have been put on the table.

Last week, a think tank, the Center for Liberalism and Democracy (CLD), revived calls for a multilateral strategy to uphold the country’s sovereign rights as well as those of other coastal states in the SCS. In a webinar, the CLD gathered thinkers from the region, including former government officials from Thailand, Indonesia, and the Philippines, to talk about concrete steps countries could take.

As always, Antonio Carpio, former Supreme Court senior justice, laid out a clear template which is, in effect, a memo for the next president. “The clear and practical solution is for other coastal states to peacefully enforce the Arbitral Award themselves by state practice, and this is how it can be done,” Carpio said.

Here goes:

      “ First, the ASEAN coastal states prejudiced by China’s nine-dash line – namely the Philippines, Vietnam, Malaysia, Brunei, and Indonesia – can enter into a Convention adopting two salient features of the Arbitral Award to which they all now agree, namely: one, that none of the high-tide geologic features in the Spratlys is entitled to an EEZ but only  to a 12-NM [nautical mile] territorial sea; two, beyond the territorial sea  of these high-tide features is the EEZ of the adjacent coastal state – be it the Philippines, Vietnam, Malaysia, Brunei or Indonesia. The Convention will be open to accession by all other coastal states, like the US, UK, France, Japan, and Australia. The effect of the Convention is to adopt peacefully by state practice, and thus enforce, the Arbitral Award.

      “Second, the ASEAN coastal states prejudiced by China’s nine-dash line can agree to jointly patrol each other’s EEZ. Under UNCLOS, a coastal state has the right to patrol its EEZ to prevent foreign poachers from taking fish and foreign survey vessels from undertaking seismic surveys for oil, gas and other mineral resources within its EEZ. These joint patrols will enforce peacefully the Arbitral Award…

      “Third, the Philippines and Malaysia can delineate the boundary of their adjacent EEZ between Borneo and Palawan, unimpaired by China’s nine-dash line. The Philippines, Vietnam and Malaysia can also delineate the median line as the boundary of their overlapping ECS [extended continental shelf] claims off the coast of Borneo and Palawan, unimpaired by China’s nine-dash line.

      “Fourth, the Philippines and Indonesia can file their respective ECS  claims in the South China  Sea, unimpaired by China’s nine-dash line.  Vietnam, Malaysia and Brunei have already filed their ECS claims in the South China Sea… All this will peacefully enforce the Arbitral Award because an ECS claim assumes the existence of an EEZ, unimpaired by China’s nine-dash line.

     “Fifth, the ASEAN coastal states can join the US and its allies in conducting FONOPS [freedom of navigation operations] in the EEZs of these ASEAN coastal states. In the Philippine EEZ in the West Philippine Sea [WPS], the Philippine Navy can join the navies of the US, UK, France, Japan and Australia in conducting naval drills. These naval drills forcefully demonstrate to China that, in the WPS, there is an EEZ belonging to an adjacent coastal state, the Philippines.”

Vietnam, Indonesia

Professor Nguyen Hong Thao of the Diplomatic Academy of Vietnam pointed out the need for regional coast guards and maritime enforcement agencies to cooperate. This is vital, and so is the upgrading of coast guards in the region.

For her part, Indonesia’s Susi Pudjiastuti, former minister of maritime affairs and fisheries, said that coastal countries in the region should forge an agreement on sustainable fishing, including banning trawlers from China. Susi is known for seizing Chinese boats poaching in Indonesian waters when she was with the Cabinet of President Joko Widodo.

What she suggested brought to mind the longstanding proposal of Deo Onda, a marine scientist at the University of the Philippines. He has urged countries with claims in the South China Sea to work together to declare marine protected areas and address environmental degradation in the area.

He has repeatedly said that this is one way to ensure food security and protect the livelihood of fishermen who work in the area and in nearby coastlines.

Multilateralism, really, is the way to go. As we know, China prefers the bilateral approach so it could use its economic power to influence leaders in Southeast Asia.

Duterte’s love for China has made him toe the bilateral line. But this love has been unrequited as we have seen how Chinese vessels have swarmed the West Philippine Sea. But this is another story.

Marites Dañguilan Vitug

Marites is one of the Philippines’ most accomplished journalists and authors. For close to a decade, Vitug – a Nieman fellow – edited 'Newsbreak' magazine, a trailblazer in Philippine investigative journalism. Her recent book, 'Rock Solid: How the Philippines Won Its Maritime Case Against China,' has become a bestseller.