The Scarborough vivendi

In this context, the government’s refusal to conduct sovereign patrols of its EEZ and the disputed areas, and the diplomatic silence on its territorial and jurisdictional claims for fear of provoking China may take on a different legal meaning.

The actual exercise of jurisdiction is the last remaining link that connects the shoal to the national territory according to our constitutional framework. President Duterte cannot stay silent and allow sole and exclusive presence and administration by Chinese Coast Guard ships for long without substantively and effectively diminishing the Philippines' legal position.

Considering the Chinese Coast Guard's continued sole presence and declared administration of the shoal, failure to assert and exercise such jurisdiction amounts to a tacit abandonment of Scarborough Shoal as an integral part of the archipelago, and the denigration of its status to a mere fishing ground possibly owned by another State.

The country’s only hope will then lie in considering joint development and management arrangements: if it cannot hold on to it exclusively as integral parts of its territory, then it might at least be able to maintain access to its resources and benefits. It should be clear that if this proceeds under current circumstances, then on balance, even proposed “win-win” solutions like turning Scarborough Shoal into an international protected area will actually turn out to be “win-loss” solutions, for the simple reason that the Philippines thereby accepts the prospects of China’s rights and presence where there used to be none.

To be fair and objective, it should also be clear that this is not purely the making of the administration of President Duterte. The administration of President Benigno Aquino III after all carried out the legal strategy that created this legal setback. It is not unusual that a series of complicated and risky legal maneuvers could result in potential gains and losses.

Here, the tactical victory of restored access to fisheries resulted in the downgraded territorial status of Scarborough Shoal, which is actually a strategic loss. The administration of President Duterte only stands to hammer the final nail in the coffin on the Philippines’ rights to Scarborough Shoal if it continues along its present track without deeper reflection and deliberation.

Left unchecked, this track ultimately leads to territorial acquiescence in exchange for economic gain. Whether this is a bargain that the Filipino people are willing to accept should be a decision based on deliberate and informed choice, not neglected and uncontrolled circumstance. This highlights the importance of the Duterte administration's actions in the post-arbitration era. –

Dr Jay L. Batongbacal is Associate Professor, University of the Philippines College of Law and Director, UP Institute for Maritime Affairs and Law of the Sea. Aside from teaching law, he undertakes research on maritime affairs, including Philippine and US maritime security policies and the Rule of Law in the South China Sea disputes.