West Philippine Sea and SONA: Don’t forget the real fight

Thanks to our legalistic culture, the Philippines’ arbitration case at The Hague has garnered unprecedented attention in the public sphere and mainstream media.

I never thought I would be spending much of July explaining, in various television and radio programs here and abroad, the nuts and bolts of the ongoing, protracted legal battle between the Philippines and China. 

Over the past year, in preparation for my book “Asia’s New Battlefield,” I had the privilege of exchanging views with one of the world’s leading legal scholars from across the United States, Asia, and Europe, and even had a chance to solicit the views of top legal experts at the United Nations. Some of these experts were in fact direct participants in the negotiation of the UN Convention on the Law of the Sea (UNCLOS). 

The more I delved into the legal aspects of the West Philippine Sea disputes, the more I appreciated the relevance of law as the best possible arbiter for the resolution of inter-state conflicts. As one legal scholar succinctly put it, law is perhaps the best equalizer in international affairs.

Given the tremendous power asymmetry between us and Beijing, I have, in principle, supported our government’s decision to take our grievances against China to the court. After all, we have to make sure modern, prevailing international law – not obscure, questionable claims of “historical rights” dating back to the age of empires – will serve as the primary basis for generation and determination of territorial claims.

Nonetheless, we have to acknowledge the limits of our legal strategy against China, and recognize the greater relevance of defending our claims inch by inch on the ground in the West Philippine Sea. Not long ago, the Philippines was at the forefront of consolidating its territorial claims in the Spratly chain of islands. We were among the first countries to build an airstrip in the area, intelligently investing in tangible means to defend our claims against half a dozen other nations in the West Philippine Sea. 

Nothing underscores the urgency of this matter more than the fact that while the arbitration proceedings have been slowly grinding in the past two years, China in the meantime has reportedly reclaimed 810 hectares across the area, which, in the words of a top defense official, is tantamount to “more than all other claimants’ [construction activities] combined…and more than in the entire history of the region.” 

We aren’t going to be able to effectively defend and consolidate our claims in the area with rusty ships, decaying airstrips, and underdeveloped naval and coast guard capabilities.

Obviously, the real fight is the scramble on the ground, not in the courts. In his final State of the Nation Address, I fervently hope Aquino will explain how he has and seeks to tangibly defend our claims against China’s expansionism. 

Legal warfare 

The Philippines has been praised for audaciously taking China (under Art. 287 and Annex VII of UNCLOS) to the court. Though China has refused to engage the legal proceedings, claiming “inherent and indisputable” sovereignty over almost the entire South China Sea, the UNCLOS (under Art. 9, Annex VII) has not barred the resumption of the arbitration efforts, which kicked off in early 2013.

Beijing knows it would be very difficult for it to justify its notorious Nine-Dashed-Line doctrine before international law. As Professor Alexander Proelß, a leading European maritime law scholar, told me on the sidelines of a recent conference in Hanoi: “I do not believe that China will manage to provide the necessary evidence concerning all territorial features and marine areas” it is seemingly claiming across the West Philippine Sea. 

Not only will China have an uphill battle in justifying “historical rights” way beyond its coastal waters, but it also has little evidence to show that (a) it has continuously exercised effective occupation over disputed features in the area and (b) other claimant states have acquiesced to its sweeping claims. To begin with, European colonial powers were the ones, which exercised dominance in the area in recent centuries, while most neighboring countries, which only gained independence in the mid-20th century, have not only refused to acquiesce to Chinese claims, but they have also stubbornly defended their claims in the area, particularly (South and later united) Vietnam and the Philippines. 

So China has tried to undermine the Philippines case by nipping the legal challenge in the bud.

First of all, China points out that the UNCLOS and arbitration bodies under its aegis don’t have the mandate to address sovereignty-related disputes, which is the purview of the International Court of Justice (ICJ), but both the Philippines and China have turned down that option. Moreover, China argues that compulsory arbitration is premature and inadmissible, since the Philippines has circumvented bilateral negotiation channels, while China (under Art. 298) has absolved itself of compulsory arbitration regarding territorial/sovereignty disputes. 

So the challenge for the Philippines is to prove that its memorial transcends sovereignty-related questions and that compulsory arbitration is the way forward. There is a good chance that the Arbitral Tribunal will exercise jurisdiction on our arguments against the validity of China’s sweeping claims and the necessity to clarify (under Art. 121) the status of disputed features and their corresponding maritime entitlement zones. 

Game of Thrones 

Obviously, there is a chance that the Tribunal will turn down jurisdiction on all of our arguments, and instead call for perhaps the establishment of a “conciliation commission” (under Annex V of UNCLOS) to provide advisory, non-binding opinion on Philippine-China disputes.  Even if we clear the jurisdiction hurdle, we are looking at protracted legal proceedings. 

The Tribunal has refused to expedite the arbitration proceedings by addressing both the merits of our arguments and the jurisdiction question simultaneously, and will most likely continuously prolong the arbitration proceedings by repeatedly giving China an opportunity to respond to each stage of hearings. As Columbia University Professor Matthew C. Waxman puts it, the Tribunal is likely concerned with being “ignored, derided and marginalized by the biggest player [China] in the region.” 

Ultimately, the Tribunal doesn’t also have the mechanism to enforce any unfavorable outcome against China, which has identified its claims in the West Philippine Sea as a “core interest”. In short, the legal approach has serious limitations, despite the fact that our government has been pouring significant funds for the proceedings (note: China is not contributing to the expenses at all) and hiring of top-notch lawyers, and, of course, recently sending top leaders from all branches of the government to The Hague. 

Meanwhile, China has been altering the geological and strategic landscape across the West Philippine Sea and beyond, thanks to its massive reclamation activities, expanded para-military patrols and military exercises, and establishment of a sprawling network of military and civilian bases. As I have been warning for months, China may soon have the ability to choke off the supply-lines of the Philippines and other claimant countries, which have tenuously maintained a presence in the Spratly chain of islands. 

Vietnam, which is a poorer country than the Philippines with a comparable population, controls the most number of features in the Spratly chain of islands, and —  together with Malaysia and Taiwan — it has consistently fortified and upgraded its installations and outposts in the area. Meanwhile, the Philippines has struggled to catch up with the scramble on the ground, despite the fact that we were among the first countries to develop a full-fledged airstrip in the area. 

But why? How could we abandon our initial advantage in this crucial battle? 

In exchanges with Roilo Golez, the former Philippine National Security Adviser, he lamented how our planning in the West Philippine Sea was for long “dominated by internal defense officers who looked inward and ignored the China threat in spite of repeated warning,” so no wonder then “nothing was achieved by way of minimum deterrence during the 1990s and the 2000s.” Our military modernization funds, Golez explained, went to “minor items” that “were useless” for defending the country’s claims in the area (see my detailed analysis of the minimum deterrence challenge for Center for Strategic and International Studies, entitled “Catch-Up in Manila for Minimum Deterrence”).

Last year, in order to maintain our supposed “moral high ground” amid our arbitration case against China,  our government decided to postpone the refurbishment of our facilities – a perfectly legal move – in Thitu Island (Pag-Asa). It proved how naively we placed most of our eggs in the legal basket. Thankfully, the Philippines recently decided to upgrade our outpost in the Second Thomas Shoal. The Sierra Madre ship – a relic of the Second World War – has for long served as our de facto fortress in the area, hosting, on a rotational basis, a group of highly patriotic and resilient troops, who have bravely resisted Chinese intimidation tactics for long. 

The rusty, ragtag outpost, however, has also served as an embarrassing reminder of how we have neglected the real fight on the ground, as China, Vietnam, Malaysia, and Taiwan have built and maintained advanced facilities on features under their control.

Looking forward to Aquino’s SONA on how we are concretely defending our territorial integrity beyond legal posturing and rhetorical blasts against China. – Rappler.com

 

The author is an assistant professor in political science at De La Salle University, and the author of “Asia’s New Battlefield: US, China, and the Struggle for the Western Pacific.” He has written for and/or interviewed by Al Jazeera, BBC, Bloomberg, Foreign Affairs, The New York Times, The Wall Street Journal, The Nation, The Huffington Post, among other leading publications. He can be reached jrheydarian@gmail.com. Follow him on Twitter: @Richeydarian.