July 27, 2016

After the celebration, how to proceed

A resounding victory for the Philippines!  That is what the UN-backed Permanent Court of Arbitration (PCA) ruling on the Philippine suit versus China’s expansive claims to 90% of the South China Sea (SCS), in effect encroaching on 80% of the Philippines’ Exclusive Economic Zone (EEZ) and 100% of its Extended Continental Shelf (ECS) amounts to.

The Tribunal’s ruling has strategic implications to the country’s economic development in so far as our exclusive claim to the resource-rich West Philippine Sea (that part of the SCS where we have unequivocal maritime rights).  It also poses a challenge as to how the new Duterte government can chart an independent foreign policy in the wake of big power rivalry in our backyard.

The Court dashed the 9-dash line claim of China to smithereens by declaring any so-called historical claims as superceded by the UN Convention on the Law of the Sea (UNCLOS) to which both the Philippines and CHina are signatories.  Moreover, it rejected China’s claimed exclusive control of almost the entire SCS by merely showing historical navigation and fishing by China in these waters.

On the issue of China’s activities in the SCS, the Tribunal ruled that China had violated the Philippine sovereign rights to its EEZ and ECS when it prevented Filipinos from fishing within these areas while abetting Chinese fishermen; when it interfered with Philippine oil exploration in Reed Bank; and when it built installations on Mischief Reef without authorization from the Philippine government.  It also ruled that China’s large-scale reclamation work and construction of artificial islands had severely damaged fragile coral reef ecosystems and had undermined the arbitration proceedings.

In the Philippines, the PCA ruling was hailed from Left to Right of the political spectrum. We recall that three and a half years ago, mainstream media and not a few pundits were bemused, if not unbelieving, when the quintessential communist revolutionary, Prof. Jose Maria Sison, announced that he was in agreement with the move of the dyed-in-the-wool pro-US President BS Aquino III to initiate the arbitration proceedings against China before the PCA.

There are some quarters though who pooh-pooh the legal victory as a mere scrap of paper what with the absence of any international enforcement mechanisms, China’s refusal to recognize the tribunal’s decision, and the Philippines’ obvious lack of military capability to enforce the award on its own.  They even go so far as to say the Philipines should never have filed the case to begin with, that it only manages to further antagonize China and make bilateral negotiations for mutual benefit more difficult than ever.

Some Filipinos justifiably wary about the US stoking the maritime conflict between the Philippines and China for its own imperialist ends argue that it would have been the better part of wisdom for the Philippines to have persisted in bilateral negotiations with the lesser hegemon, China, using the latter’s rivalry with the US as possible leverage.

The principled and patriotic stand is to assert our national sovereignty, in this case, not so much over some rocks or even purported islands, but on our maritime entitlements in the resource-rich West Philippine Sea versus China, a fast rising regional power.  National interest dictates that we utilize all available avenues to do so — legal, political (including fostering more people-to-people relations) and diplomatic, whether bilateral or multilateral.  Our high moral, political and legal ground is the linchpin for defeating China’s seeming overwhelming economic and military superiority.

The key to pursuing the national interest and asserting our rightful sovereignty over the area is to be neither intimidated by Chinese bullying nor to rely on the false premise that the US is here to defend our territory and maritime entitlements.

Supreme Court Justice Antonio Carpio cautioned against expecting immediate and automatic availment of the PCA award.  He said the road to enforcing the ruling would involve several generations of Filipinos. Nonetheless our people can take heart that ultimately international public opinion can move even the most intransigent and arrogant big power.

Such is what happened in Nicaragua’s victory at the International Court of Justice against US funding and training of the Contra mercenaries who were organized to overthrow the ruling Sandinista government. After years of refusing to recognize the judgement, the US eventually gave Nicaragua compensation to the tune of half a billion dollars to avoid further political isolation in the international community over the settled dispute.

International law experts aver that the Philippines can file resolution after resolution at the UN General Assembly for that body to affirm the PCA award. (Unfortunately in the UN Security Council where “right” is backed up by “might”, China will surely veto such a resolution.) The Philippines can also unify the ASEAN countries, most especially the four other countries with territorial claims in the SCS, on the PCA decision. When push comes to shove, the Philippines can sue for damages and rental arrears from China in countries where China has all kinds of assets that can be subjected to legal judgement in favor of the Philippines.

The Philippines can do this knowing that the logic of China’s unbridled capitalist development is to expand its markets and investments overseas at a time of slowing domestic growth.  It is also clear that China wishes to match its unprecedented growth in the last three decades with a greater regional, if not yet global, political and military clout.  Certainly China would not want to be perceived as an international bully, or worse outlaw, contrary to its projection as a benign giant rising peacefully to take its rightful place in the world.

US self-serving designs are another matter and they are for real. The US “Pivot to Asia” strategy includes the transfer of 60 per cent of its military, especially naval, forces from the Middle East to Asia as well as the Transpacific Partnership Agreement, an ambitious regional trade grouping that excludes China.  China has good grounds to consider these US moves as part of the effort to isolate China and make it more vulnerable to external pressure to reform its economy and political system to the liking of the US and its allies.

The Aquino III regime has willingly played the US fugleman in Asia.  Former President Aquino has used the patriotic card while engaging in bellicose rhetoric against China in relation to the South China Sea dispute. In the process, he has encouraged latent anti-Chinese racist sentiments among the Filipino public.

Invoking a Cold War-era Mutual Defense Treaty, Aquino then calls on Uncle Sam to defend the Philippines in its tiff with China. In return Aquino justifies the increased presence of US troops, war materiel and so-called joint war exercises through the Enhance Defense Cooperation Agreement (EDCA).

In the wake of the PCA ruling, pro-US groups have started saber rattling to underscore the need to use US military power to stop China’s aggressive behavior in the SCS and to enforce the favorable ruling while providing the Philippines its defense shield.

The situation post-PCA ruling provides the Philippines a golden opportunity to take stock of what are our country’s real interests and how best to advance these without falling into the trap of being dominated by either the US or China and being a pawn in the big power games they play. #

Published by Business World
25 July 2016


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