OF LAW AND POLITICS

Track 2 Diplomacy in Aid of Official Dialogue

on South China Sea

Jaime S. Bautista

Foreign Secretary Perfecto Yasay recently revealed that the Philippines has filed a diplomatic protest with China through a third person note verbale, upon verification of the report by the Washington-based CSIS Asia Maritime Transparency Initiative that China appears to have built anti-aircraft and anti-missile weapons on its man-made islands in the disputed waters of the South China Sea.  One of these man-made artificial islands is Mischief Reef, which is a low-tide elevation within the Philippines’ Exclusive Economic Zone and forms part of the Philippines’ Continental shelf.

This low-key reaction of the Philippines is in accord with the policy of the Duterte Administration to settle its maritime and territorial issues with China through quiet diplomacy. However, China should satisfactorily explain why the structures do not support China’s justification that they are intended as refuge shelters for fishermen. 

So far, the Philippine government has taken a cautious approach to the bilateral negotiations, since the UNCLOS arbitration decision, which the Philippines won, covers only issues relating to the rights of the Philippines with respect to its EEZ and Continental Shelf.  

The arbitral decision did not cover issues of sovereignty, whether of Scarborough Shoal or the Spratly Islands.  Our immediate concern is that China should not convert Scarborough Shoal into a military base.  This would directly undermine the Philippines’ security and territorial integrity.

The United States has taken the position that its Mutual Defense Treaty with the Philippines does not cover our Kalayaan Islands unless the Armed Forces of the Philippines stationed there are attacked. 

The position of the United States with respect to Scarborough Shoal, where we have no forces stationed, is different because there is speculation that the United States may have drawn a red line (that the shoal should not be converted into a military base), similar to its position with respect to Taiwan.    While the United States does not have treaty obligations with Taiwan, the United States credibility with its allies in the Western Pacific area would be seriously undermined if the United States were to stand idly if China attacked Taiwan.

The United States has repeatedly stated that its defense relations with the Philippines remain rock solid but the Duterte Administration might have had some serious doubts that the United States under President Obama would go to war with China if China had crossed the red line, considering the huge interlocking economic relations between them. On the other hand, why would China risk damaging this relationship by crossing this red line, if it exists? 

President Duterte has also announced a policy of widening its circle of close friends to include China and Russia.  This has had the beneficial effect of lessening the tensions in the South China Sea.

With its One Belt One Road Initiative, China appears to be at a crossroads of deciding whether to test the policy of “might is right” or to attain its strategic objectives by engaging in economic diplomacy and be law abiding. 

Before the visit of President Rodolfo Duterte to China in October 2016, the Philippines engaged China in Track 2 Diplomacy.  President Fidel V. Ramos assisted by former Secretary Rafael Alunan traveled to Hong Kong to meet with Madam Fu Ying, Chair of the Foreign Affairs Committee of the National People’s Congress, and Dr Wu Shichun, President of China’s National Institute of South China Sea Studies.  They avoided touching on contentious issues but explored the prospects for fishing cooperation, ecological preservation, and transnational operations against illegal drugs.

This was followed by the visit to China of the Philippine Council on Foreign Relations (PCFR) headed by Ambassador Jose V. Romero, upon the invitation of Wu Hailong, President of the Chinese People’s Institute of Foreign Affairs.  This delegation included members of the Executive Board of the Philippine Ambassadors Foundation Inc. (PAFI). The PCFR also exchanged policy and strategic views with the China Institute of International studies (CIIS), with its Secretary General Yang Yi hosting the meeting.  Among the proposals made by the PCFR were the suggestions made by President Ramos for the conversion of areas in the South China Sea as marine parks for tourism, education, and cultural exchanges; the conversion of Scarborough Shoal as a “no touch” zone to preserve corals and other marine resources; and the establishment of common fishing grounds in the South China Sea.

During this meeting with CIIS, Alan Ortiz wondered why China should feel insecure because it is now a great Power.  On the other hand, he invited attention to the insecurity of China’s neighbors with respect to China’s policies in the South China Sea.

I addressed the issue of China’s being offended by the Philippines’ decision to file the petition for arbitration under UNCLOS, saying there may be a cultural gap here.  Noting that the Philippine presidents have been mostly lawyers, I said it is natural for Filipinos to proceed in accordance with international law and arbitration was the legal remedy left to the Philippines to defend its national interests.  I noted that the Philippines had previously sought to bring the Sabah issue against Malaysia before the International Court of Justice. However, I refrained from mentioning that there was no issue of sovereignty raised before the UNCLOS Arbitration Tribunal and that, on the other hand, China and the United States are the two countries which have filed the most number of cases under the dispute settlement process of the World Trade Organization.

Quiet diplomacy has allowed China to respect the traditional fishing rights of our fishermen to fish in the waters of the Scarborough Shoal.  The more difficult problem is to find a formula to allow China to end its occupation of Mischief Reef.  The recent diplomatic protest has begun this process.   The third issue concerns the Philippines’ right to exploit the resources of the Reed Bank  (which is within our EEZ and forms part of our Continental Shelf), free from interference by China.  The Philippine government, in defending and exercising our rights, would have to act in accordance with the provisions of the Philippine Constitution.  The Philippines should also not raise the white flag by proposing joint exploration and development with China as the win win solution.

The Philippine Government has announced that one of the Philippines’ priority, as ASEAN Chairman, is to conclude a framework for the Code of Conduct for the South China Sea.   According to PAFI Chairman Lauro Baja, the Declaration of Conduct is already the framework for the Code of Conduct negotiated by ASEAN with China during his time.  As China refused to consider the proposed enforcement provisions, the proposed Code of Conduct was downgraded to the political declaration signed by ASEAN member countries and China. 

The proposal for the establishment of marine parks in the South China Sea to resolve or mitigate the conflicts in the South China Sea is not a new one, having been considered at a regional level during the time of another retired colleague, Ambassador Alberto Encomienda.  This and other proposals made by PCFR/PAFI should be seriously considered by China and initially by the ASEAN littoral countries.  Hopefully, track 2 diplomacy may lead to a breakthrough at the official level and hasten the arrival of the long-awaited Asian/Pacific Century.

Note:  This article is a follow-up to Ambassador Bautista’s article published in the Manila Times on 13 August 2016 entitled: “Choices in the South China Sea” and to a previous one entitled “Philippines complied with UNCLOS to win arbitration” published on 30 July 2016.   His website is: www.jaimesbautista.com.