What Happens after the Hague Court Rules?

By Francisco S. Tatad Reprint | | Print |

Jul 13 2016 - For the past several weeks, the government had been expecting the Permanent Court of Arbitration at The Hague to rule in its favor on its dispute with China in the South China Sea.

Official sources looked forward to it as a watershed moment. But as this is written, the ruling was yet some hours away. What would it say is the core question, but even more critical is, what would China say or do?

The process began in January 2013 when the Aquino government brought the case to the Court under Annex VII to the UN Conference on the Law of the Sea (UNCLOS).

The PCA is not a real court like the International Court of Justice, simply an organizer of arbitral tribunals to resolve conflicts between UN member-states. But we set great store by what it has to say.

The government asked the Court to declare that the claims on the South China Sea must be in full accord with the UNCLOS, and not with China’s so-called nine-dash line; to classify China’s occupied features as rocks, low-tide elevations or submerged banks but not islands; and to affirm the Philippines’ right to operate freely inside its Exclusive Economic Zone and continental shelf under UNCLOS without Chinese intervention.

The Aquino government hired a Washington-based lawyer Paul Reichler to represent its interests, and filed a ten-volume memorial to the tribunal in March 2013. However China has rejected the Philippine claim from the very beginning, rejected the authority of the PCA to arbitrate, and called on the Philippines to submit the dispute to bilateral negotiations.

In July 2015, the oral arguments were held at the Hague with only the Philippines in attendance. Then-Foreign Secretary Albert del Rosario said the Philippines recognized that the Court was not competent to rule on sovereignty, but was called upon to reject China’s so-called nine-dash line and “historic rights” to the disputed territory. He told the Court, to the surprise even of Filipino observers, that efforts at bilateral negotiations with China had failed. The Philippines has spurned any attempts at bilateral talks as far as this observer is concerned.

China firm, DU30 flexible
China has not budged from its position. It refused to submit a counter-memorial to the Court, and did not take part in the oral arguments. During the presidential debates, candidate DU30 said that should the Philippines win the arbitration case, he would sail a small boat, take the PCA verdict and plant it with a Philippine flag on one of the maritime featured fortified by Bejing. A few days ago, however, the Duterte government expressed willingness to start bilateral talks on joint development.

In his first official statement on the issue as foreign secretary, Perfecto Yasay Jr. said the government was open to a bilateral discussion on the joint exploration of mineral and marine resources in the disputed territory. A number of sectors seemed to favor this position, but many of the government’s Western allies, notably the United States, were clearly surprised by it.

Although Manila’s partners in the Association of Southeast Asian Nations are not solidly behind arbitration, some 40 governments are seen to be highly supportive of a purely multilateral approach to the dispute rather than a bilateral one. Leading this group is the United States, is not a treaty partner in UNCLOS.

Pentagon anxious, DU30 slams US
On Monday US Defense Secretary Ashton Carter telephoned his Philippine counterpart, Defense Secretary Delfin Lorenzana, to discuss the possible security and defense implications of the expected PCA ruling on the South China Sea, according to an exclusive report by veteran newspaperman Jose Katigbak in the Philippine Star. The report, datelined Washington, showed America’s interest in the case, not necessarily for its own sake, but as a subset of its strategic relationship with China in the Asia Pacific.

The US could not possibly have expected what it is now hearing from the DU30 administration. In a speech before Filipino Muslims in southern Davao at the end of Ramadan on July 8, DU30 harshly criticized US for its policies in the Middle East. As reported by Associated Press, and published in some American newspapers, though hardly in any Philippine newspaper, DU30 said, “it is not that the Middle East is exporting terrorism to America, America imported terrorism…They forced their way to Iraq…look at Iraq now; look at what happened to Libya; look at what happened to Syria…People are being annihilated, including children.”

Although no one has accused DU30 of misrepresenting the facts, no Filipino president before him ever said anything like it. In fact, this was the strongest broadside ever uttered by any sitting Filipino politician on record. DU30 has named several seasoned communists to his Cabinet, and said he would be a “leftist president” with an “independent foreign policy”—i.e., not dependent on the US. This was a breath of fresh air for many Filipino nationalists and progressives, but probably the last thing US Ambassador Philip Goldberg had expected to hear from the former city mayor whom he was reported (by highly qualified Mindanao sources) to have spoken to sometime in 2014 about “possibly running for President.”

Goldberg will be leaving Manila soon, to be replaced by Sung Kim, an Asian-American career diplomat, who is also a veteran communist watcher, the current special representative for North Korea Policy and Deputy Assistant Secretary for Korea and Japan. This could be an indication of US apprehensions about the DU30 presidency. Just before DU30’s inaugural, several former US ambassadors–John Negroponte, Thomas Hubbard, and John Maisto–sought a private audience with DU30 in Davao. Recently, State Department Counselor Kristie Kenney asked for talks with DU30’s foreign policy team to assure them that “we want to support the Philippines. We want to be your friend, your partner.”

Negroponte, Hubbard, and Maisto are members of the US-Philippine Society, while Kenney is best remembered here as the US Ambassador during the time of President Gloria Macapagal Arroyo, who showed up in Camp Abubakar to meet with the Moro Islamic Liberation Front leadership unbeknownst to Philippine authorities, and who showed up again in Kuala Lumpur to witness the proposed signing of the Memorandum of Agreement on Ancestral Domain (with the MILF), before the Supreme Court struck it down, and aborted its signing, as unconstitutional. She is supposed to be one of State’s hotshots.

The global game
DU30, despite his being a “probinsiyano,” has apparently decided to play international politics the way it should be played–not as a zero-sum game in favor of one major partner. He will not abandon traditional ties with the US, but he will not reject the fresh economic opportunities offered by China either. China is the author of the “One belt, One road” global project, consisting of the land-based Silk Road Economic Belt and the ocean-going Maritime Silk Road, which seeks to raise $4 trillion to $8 trillion in investments, in order link up at least 60 countries with modern infrastructure and transport systems.

Supporting this project is the China-led Asia Infrastructure Investment Bank, capitalized at $100 billion, 75 percent of which comes from Asian and Oceanic countries, and 26 percent of its voting rights belongs to China. Among the developed countries who have joined are Australia, Austria, Brazil, Denmark, Finland, France, Germany, India, Iran, Israel, Italy, Jordan, Kuwait, Netherlands, New Zealand, Norway, Oman, Qatar, Russia, Saudi Arabia, Singapore, Sweden, Switzerland and United Kingdom. Among the Asean countries, are Brunei, Indonesia, Thailand, Vietnam and the Philippines, which joined on Dec. 3, 2015. The bank has 37 founding member-governments, and held its first board meeting on June 25, 2016.

Super fast trains, modern ports and airports, dams and irrigation systems are parts of this “One belt, One road” project, which goes through Central Asia, West Asia, Middle East and Europe. The north belt goes through Central Asia, West Asia, to the Persian Gulf and Mediterranean; the south belt goes through China to Southeast Asia, South Asia and the Indian Ocean. The maritime belt will connect the South China Sea, South Pacific Ocean, and the Indian Ocean.

One belt, one road
Will a PAC ruling in favor of the Philippines enhance or endanger our involvement in this “One belt, One road” system? Obviously, DU30 has factored this in before saying he was ready to consider joint exploration of marine and mineral resources in the South China Sea with Beijing.

Will cooperation and connectivity with China be compatible with the Philippines’ Enhanced Defense Cooperation Agreement with Washington? Obviously, there would be some problems, if the US deployment through EDCA is aimed principally at Beijing. But what exactly is the official narrative here? Is the US willing to say, and is DU30 ready and willing to believe, that EDCA is not intended against Beijing?

If DU30 is told that the EDCA installations inside the Philippine military bases do not contain any nuclear weapons—-in conformity with the Philippine Constitution–would he take up the proposal coming from the Save the Nation Movement and Solidarity for Sovereignty to invite himself to one of those installations and see for himself what exactly are stockpiled there?

The EDCA challenge
So far not even the AFP Chief of Staff or Secretary of National Defense has been allowed this privilege. As President and Commander-in-Chief, can DU30 not make sure that he becomes the first and only Filipino to see what a friendly foreign force has installed on friendly Philippine soil?

I will not insist on this, if there is any risk of embarrassing our historic ally. But if the President is determined to pursue a truly independent foreign policy, he could take the long-range view of being militarily equidistant to both China and the US, while remaining their strongest economic ally. He could explore the possibility of adopting armed “neutrality,” like Switzerland’s, as the genuine national defense and foreign policy of the Philippines. That would, indeed, be a historic decision and an inimitable contribution to the peace of the Asia Pacific and the world.

fstatad@gmail.com

This story was originally published by The Manila Times, Philippines