Recently, our government took the bold decision
to take China before a United Nations (UN) court at The Hague. It represented the culmination of years of preparing a legal challenge to China’s increasingly belligerent actions
in the West Philippine Sea.It also reflected our exasperation with existing diplomatic mechanisms under the aegis of the Association of Southeast Asian Nations (ASEAN), which has, so far, failed to establish a legally-binding Code of Conduct (CoC) across the contested waters. As of this writing, the Philippines is the only country that has chosen to stand up to China in an international court in such an explicit, high-profile manner. And this may explain China’s expressed outrage
at the Aquino administration’s latest legal maneuver. Far from calming the warm waters of the West Philippine Sea, tensions are bound to rise in the coming months.There is a clear and present risk of Chinese retaliation in the future
. Beijing can (once again) not only resort to imposing economic sanctions and travel bans against the Philippines, but it can also up the ante by expanding its maritime patrols across the West Philippine Sea. China has the option of further tightening its ongoing siege of Philippine marine detachments in the Second Thomas Shoal as well as consolidating its control over the Scarborough Shoal. If push comes to shove, there is also the possibility of targeted attacks against the Philippines’ key infrastructures, especially the electricity sector, which is heavily deregulated. In short, the Philippines is highly vulnerable, and there should be a coherent strategy to prevent a destructive confrontation.
Since the Philippines is the only country to have legally challenged Chinese claims in the Western Pacific, China has the option of engaging in a targeted, concentrated punishment of the Philippines. Obviously, the situation would have been much different if we coordinated our legal challenge against China with other like-minded countries such as Vietnam, Japan, and India, which share similar territorial disputes with China. But we didn’t do so, choosing instead to be a trailblazer for using international law as an instrument of resolving an increasingly militarized maritime dispute.
An uncertain strategy
“By going to arbitration, the Philippines has signaled its fidelity to international law… We are defending what is legitimately and rightfully ours,” declared Foreign Secretary Albert del Rosario.
On the surface, the Philippines has a strong case to make. Our territorial disputes with China concern a number of maritime features, which unequivocally fall well within our 200-nautical-mile Exclusive Economic Zone (EEZ). China’s nearest shores are several times farther.
The picture, however, gets a bit more complicated once you jump into the complexity of the case at hand. First of all, there is no established “enforcement mechanism” to ensure that China will respect the outcome of the arbitration, assuming the Philippines wins the case.
As a permanent member of the UN Security Council, China has unequivocally expressed its refusal to subject itself to any international arbitration concerning, among other things, “territorial delimitation”. Based on Annex VII of UN Convention on the Law of the Sea (UNCLOS), it can be argued that the ITLOS can exercise jurisdiction over an arbitration case in which parties such as China refuse to participate. But China has the wherewithal to ignore or veto any international resolution questioning its territorial and key foreign policies, or simply quit the UNCLOS.
Then, one must consider the fact that the deliberate vagueness of China’s territorial claims, based on unprecedented historical grounds, poses complications for the ITLOS arbitration panel, which would face considerable challenge at arriving at a clear-cut decision in a short period.
The strength of the Philippines’ case, however, lies in its strategy of questioning the legal validity of China’s sweeping territorial across the South China Sea basin, rather than definitively determining sovereignty claims over the disputed features in the area. In this sense, the Philippines’ legal case is more about undermining the legitimacy of China’s territorial claims, which, in turn, would place tremendous international pressure on Beijing.
There is also a strategic element. Depending on how the arbitration case moves forward, the Philippines can gradually cajole other like-minded countries such as Vietnam and Japan to file similar cases against China — cementing a regional counter-alliance against Beijing based on international law.
The ultimate goal of the Aquino administration’s latest legal maneuver shouldn’t be to antagonize China, which is poised to become the preeminent power in Asia in the coming decades. Instead, it should focus on generating enough strategic pressure to convince Beijing to get back to the negotiating table, de-escalate its para-military maneuvers in the contested waters, and accede to a legally-binding CoC in the West Philippine Sea.
There are two elements that will be extremely crucial to the success of the Philippines territorial policy. In the absence of a credible minimum deterrence capability, the Philippines has little choice but to maximize its strategic partnership with external powers such as Japan and the U.S. It is extremely important to garner maximum guarantees of support from Washington in an event of a Philippine-China confrontation in the West Philippine Sea. But the most crucial element is the development of our own maritime defense capabilities, with special focus on the Philippine Navy and Coast Guard, which are pivotal to the preservation of our territorial claims.
In times of crisis, international affairs become largely a realm of ‘balance of power’ politics and military self-reliance, rather than evoking laws and norms. Therefore, we should view the arbitration maneuver as only a supplement to a broader strategy of defending our territorial claims. – GMA News