OF LAW AND POLITICS

Ambassador Jaime S. Bautista

Choices in the South China Sea

The Arbitration Tribunal of the Law of the Sea resolved bilateral issues between the Philippines and China, specially confirming that the Philippines has sovereign rights over a 200 mile EEZ and Continental Shelf in the South China Sea/West Philippine Sea pursuant to the UN Convention on the Law of the Sea.  The Tribunal enjoyed jurisdiction over the case because the Philippines was careful not to raise questions of sovereignty over territory.

Now our country needs quiet negotiations in invoking the Rule of Law, based on the UN Convention on the Law of the Sea to which China is also a Contracting Party.  The decision of the Arbitration Tribunal is final and binding but the enforcement of the ruling is based on the good faith of China to comply with its obligation under UNCLOS to respect the ruling. 

Bilateral Talks.  President Fidel V. Ramos has described his visit to Hong Kong as a dialogue with friends to seek ways to establish peace, harmony and goodwill, and not a part of the bilateral talks with the Chinese Government.  The formal talks are needed with the Chinese government for China to refrain from continuing with activities that contravene our rights, such as preventing our vessels from fishing in our EEZ and our fishermen from pursuing their livelihoods by traditional fishing at Scarborough Shoal, as well as from interfering with our survey and exploitation of the resources of the Reed Bank. 

The more sensitive discussion will be to arrive at a way for China to end its occupation of Mischief Reef, which is a low tide elevation forming part of our Continental Shelf, and which China has converted into an artificial island.  Asking China to end its occupation of Scarborough Shoal, which is not part of the Spratly Islands, will need more goodwill on both sides but this issue was not covered by the Arbitration ruling 

Multilateral Talks Needed over Spratlys.  The bilateral talks between the Philippines and China may begin with matters outside the Arbitration ruling which will allow the talks to proceed with pragmatism and goodwill, as suggested above by PFVR, including a reminder of our geographical and historical ties, our cultural and commercial relations, our ties of kinship. 

The scope of the bilateral talks may widen and include preliminary discussion of solutions to the territorial problem of the Spratlys, such as the idea of a maritime park which will benefit all the coastal states.  These bilateral talks, however, will not be able to resolve the dispute over the Spratlys because more than two countries claim sovereignty over them.  Thus, the issue of sovereignty over the Spratlys requires multilateral talks. 

ASEAN and China have recognized that this dispute affects the peace and stability of the region and should be resolved peacefully.  To this end, ASEAN member countries and China signed the Declaration on the Conduct of Parties in the South China Sea in Phnom Penh on 4 November 2002.  This Declaration includes the statement in its final Paragraph 10 that “The Parties concerned reaffirm that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and agree to work, on the basis of consensus, towards the eventual attainment of this objective.”  Unfortunately, the Code of Conduct still has to be negotiated and adopted in multilateral talks between ASEAN and China..

ASEAN Reaction to Arbitration Ruling.  The ASEAN Foreign Ministers at their recent annual meeting held in Vientiane last July issued a Joint Communique which took note of the UNCLOS arbitration ruling and the tense situation in the South China Sea in the aftermath of the decision:    “We remain seriously concerned over recent and ongoing developments and took note of the concerns expressed by some ministers on the land reclamations and escalation of activities in the area, which have eroded trust and confidence, increased tensions and may undermine peace, security and stability in the region.” The Foreign Ministers further declared:  “We emphasized the importance of non-militarization and self-restraint in the conduct of all activities, including land reclamation that could further complicate the situation and escalate tensions in the South China Sea.”

The ASEAN Foreign Ministers reaffirmed their “commitment … to the peaceful resolution of disputes, including full respect for legal and diplomatic processes, without resorting to the threat or use of force, in accordance with the universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea. “  The reference to legal and diplomatic processes, principles of international law and the UNCLOS is a code to refer to the arbitration tribunal’s decision.

China – United States Rivalry.  While the filing of the Arbitration Case against China had increased tension between the Philippines and China, the major anxiety for many analysts is having an accidental skirmish between the Chinese and United States navies and air forces in the South China Sea and the escalation of the conflict that may follow. 

The United States has opposed China’s claim of sovereignty over the area covered by China’s announced nine-dash- line, and is concerned about the possible militarization of certain reefs in the high seas, which China denies.  China’s recent activities in the South China Sea is understood as a reaction to the United States’ policy of “pivot to Asia” which China perceives as a policy directed to contain China.  The United States has made the challenge to China’s claim of sovereignty over a part of the high seas by sending vessels and aircraft through the area in the exercise of freedom of navigation and overflight in the high seas.

While the Philippines is bound by the provisions of the UNCLOS, the Philippines does not take sides on the perceived geopolitical conflict between the United States as the dominant superpower in the world and China, as the rising star in the Pacific region.   Similarly, the United States has repeatedly announced that it does not take sides on the issue of sovereignty over the Spratlys.  The Philippines has a policy of maintaining friendly relations with all countries in accordance with the declaration in the Philippine Constitution that the Philippines “adheres to a policy of peace, equality, justice, freedom, cooperation and amity with all nations.”

Philippine Independent Foreign Policy.  The Philippine Constitution also provides that “The Philippines shall pursue an independent foreign policy.  In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.” 

We have observers who think that Philippine foreign policy is tilted in favor of the United States.  The Philippines’ defense alliance with the United States, and its recent agreements relating to Visiting Forces and the Enhanced Defense Cooperation Agreement (EDCA) are perceived as showing this.

Recently, the Supreme Court ruled with finality on the constitutionality of EDCA, which the Supreme Court interpreted as an executive agreement implementing the  Mutual Defense Treaty (MDT) and the Visiting Forces Agreement.  The Supreme Court noted that it is the Executive Department that is given the responsibility to decide on the wisdom of entering into the agreement.

The Philippine Government has maintained that the Philippines needs the MDT and its implementing agreements because, among other reasons, they provide a shield for our armed forces in the Kalayaan Islands and our marine contingent guarding our Second Thomas Shoal.  Under the MDT, the United States should come to the aid of the Philippines in case Philippine armed forces are attacked.  The Philippines notes that the MDT is only a defense agreement and is not aimed at any country at peace with the Philippines.  The Arbitration ruling defining the extent of the Philippines’ EEZ and Continental Shelf in the South China Sea and the Supreme Court ruling on the constitutionality of EDCA begs the question of whether the United States under the MDT is committed to the defense of our EEZ and Continental Shelf, as the extension of our metropolitan area.

Multipolar World and ZOPFAN.  China may be at the crossroads of deciding whether to test the policy of “might is right” or be more accommodating and law abiding.  In 1979, China engaged Vietnam in a war to teach Vietnam a lesson.  The lessons of the Second World have shown that economic might is more relevant and influential than military power. 

Germany is now seen as the leader of the European Union while Japan subsequently attained its war objectives by peaceful means. 

A policy of militarization of the Spratlys may prove to be unwise for China because this raises the level of insecurity among her neighbors.  Indeed, many ASEAN countries have increased their military expenditures and strengthened their navies and air forces. They have seen the value of having the presence of a Superpower which does not pose as much as a threat because the United States is outside the region.  The ASEAN countries may be pushed firmly into the arms of the Superpower and the continuation of the Unipolar World.

China may decide to look at other security options.   Instead of acting like a colonial power against the advice of Deng Xiaoping, China could decide to be the Good Neighbor and observe the Rule of Law, which protects all nations big or small.  In line with its objective of reverting to a Multipolar World, China could follow a strategy of supporting the emergence of a strong and influential ASEAN, which is neutral and non-aligned with any Great Power.  ASEAN, after all, has shown that it has the potential of becoming a regional power and one of the poles in a Multipolar world.

China previously declared that it would respect and support the ASEAN vision of a Zone of Peace, Freedom and Neutrality (ZOPFAN).  The revival of the vision of ZOPFAN during bilateral or multilateral talks could be a long-term solution for achieving lasting peace and prosperity.  A precondition for ZOPFAN would be resolving the territorial disputes in the Zone. There would be need of confidence building measures to restore trust and confidence on all sides.  The establishment of ZOPFAN would need the cooperation of the United States.  ZOPFAN would remove the region from Great Power conflicts and could make China feel safer from intrusion by outside Powers. 

A scenario like this is worth striving for.  We should work with friends to bring countries together to achieve lasting peace and greater prosperity in our region based on the Rule of Law.

Note:  Ambassador Jaime S. Bautista is a retired career diplomat whose last diplomatic assignment was Ambassador to Russia, and concurrently to Belarus, Ukraine, the three countries in the Caucasus and the five Central Asian states.  He was assigned to the Philippine Embassy in Beijing from 1976-9 and acted as Charge d’ Affaires a. i. at various times.  He is professor of law at Ateneo de Manila Law School and Philippine Christian University.