China must be ecstatic. President Duterte, the Head of State of the Republic of the Philippines, publicly declared: "Nag file sila ng kaso, nanalo tayo. 'Yang papel, sa totoong buhay, between nations, 'yang papel, wala 'yan…. Pinursue ko, walang nangyari. Actually, sa usapang bugoy, sabihin ko sa 'yo, 'Bigay mo sakin? Putangina papel lang 'yan. Itatapon ko 'yan sa waste basket.'”
When a President makes a statement concerning international affairs, it can be taken as his country’s foreign policy declaration. In international law, well-entrenched is the rule that the oral or written declarations of heads of state, heads of government, and ministers of foreign affairs can be the basis of international accountability or liability even in the absence of any treaty or bilateral/multilateral agreement regarding the pronouncements. This is why oral and written statements of Presidents or their subalterns must be well thought-out — worded carefully to avoid great prejudice to their own countries. This is the “unilateral binding declaration” doctrine.
China might thus utilize that “waste basket” statement to support its claim against the Philippines that the West Philippine Sea decision should be discarded. China can use it to assert that the WPS decision has become worthless, as even the country in whose favor it was resolved is treating the decision as inconsequential. The fact that Defense Secretary Delfin Lorenzana, Foreign Affairs Secretary Teddy Locsin, and Senator Manny Pacquiao have publicly made statements opposing the President’s tone highlights how disturbing the latter’s off-the-cuff opinions are.
The WPS problem is further complicated by President Duterte's pivot purportedly away from the United States and towards China. In October 2016 during the Philippines-China Trade and Investment Forum in Beijing, President Duterte declared in front of the members of the Chinese and Filipino business community that “in this venue, your honors, in this venue, I announce my separation from the United States.” He added, “Both in military, not maybe social, but economics also. America has lost.” Also, he declared: “I’ve realigned myself in your ideological flow and maybe I will also go to Russia to talk to Putin and tell him that there are three of us against the world – China, Philippines, and Russia. It’s the only way.”
President Duterte’s thinking appears to be this: favorable relations with China necessarily means diminution of all meaningful and strategic economic and political ties with the US — a clearly antiquated mindset belonging to a bygone era, and exhibiting President Duterte’s lack of knowledge regarding the present dynamics of global affairs.
The Cold War has long ended. The world is no longer divided between the United States and Russia/China in terms of economic, political, and ideological allegiance. Communist Russia and China have embraced the capitalist attitudes conventionally attributed to the US. Relationships and alliances are brokered every day across new ideologic, geographic, economic, and socio-political lines. Just a cursory review of the variety of players present in world affairs — the EU, the ASEAN, the OECD, the WTO, the G7 block, individual states which have risen to prominence such as Japan and Saudi Arabia — shows that the world is far more nuanced than President Duterte’s limited view.
Let China and the US compete against each other. Let the Philippines’ economic and military treaties with other countries be maintained. Alliances are part of international relations and are not bad. Neither do we have to be beholden to either the US or China to maintain beneficial relations with the other. President Duterte need not put the country in the armpit of China, making pronouncements emboldening China to occupy areas within the Philippines’ maritime preferential zone.
Sadly, by aligning himself, fully it seems, with China despite its continued aggression against Philippine territorial integrity, President Duterte has, wittingly or unwittingly, allowed himself to be an active actor in China’s push to legitimize its claim over the West Philippine Sea despite its loss in a landmark international case.
While continuing to illegally disrespect Philippine maritime rights, China is simultaneously moving to beat the Philippines through another avenue, one that the Philippines’ own President may have opened up. Whereas before, China’s concocted 9-dash line theory was declared baseless under international law, its likely “reliance” on President Duterte’s own public declarations are not so. There is arguably substantial legal muscle behind the principle of estoppel, or the rule that other states can rely on the statements of a head of state for a country’s foreign policy.
It is high time the Duterte administration recognizes China’s strategy — one which has the Philippine President vacillating between helplessness and outright welcome towards these invaders. China has capitalized on President Duterte’s timidity at the expense of his own country’s interests, using such acquiescence to turn the factual circumstances and political rhetoric surrounding the WPS in its favor. It has come to a point where President Duterte has even openly admitted that China is “in possession of the property,” to the great prejudice of the Philippines.
This scheme is being religiously pursued. The latest result was President Duterte’s statement, referring to the WPS decision, irresponsibly declaring: “Putang inang papel iyan. Itatapon ko 'yan sa waste basket.”
With the kind of statements he has been spewing, there is real danger that the Philippines might lose a number of islands and their maritime rights within its 200-nautical mile exclusive economic zone – a national tragedy grossly prejudicial to the Filipino people.
Nevertheless, notwithstanding President Duterte’s reckless statements, the Philippine position remains strong. Different countries have shown support for the WPS decision despite the President’s seeming pusillanimity. China could use one man’s injudicious utterances against the Philippines, but the fact remains that the 9-dash line on which it had anchored its claims is absurd and without any historical or legal basis. Credit goes to the team assembled by former Foreign Affairs Secretary Albert del Rosario for the robust legal arguments which won for us the WPS decision. Without any credible movement from our own government, that decision seems to be the only thing standing between the Philippines and its rightful claim to the WPS, and China.
All is not lost for our country’s rights over the WPS. Circumspection is the order of the day. During his remaining months in office, President Duterte must be careful and yet also judiciously assertive. Foreign policy cannot be based on whims and caprices. He cannot equate his moods and emotions with public interest. Naïve personal opinions and knee-jerk reactions have no place in formulating a foreign policy declaration.
It is better for him to read a firmly well-prepared statement sufficiently nuanced by the Philippines’ position, the Hague ruling, and international law tenets rather than just spontaneously launching a structureless tirade as he is wont to do. President Duterte must retract his imprudent “waste basket” statement. This, he must personally do as Head of State. He cannot hide behind impersonal and lukewarm statements by the Foreign Affairs Department when the damage has been done by his very own words.
President Duterte himself must expressly, boldly, and with a sense of utmost urgency, assert the Philippines’ maritime rights and frontally call on China to abide by the rule of international law. He must, for once, bring the hammer down in the right direction — away from the Philippines and against the country continually violating our maritime rights. – Rappler.com
Mel Sta Maria is dean of the Far Eastern University (FEU) Institute of Law. He teaches law at FEU and the Ateneo School of Law, hosts shows on both radio and Youtube, and has authored several books on law, politics, and current events.