Half-empty or half-full. That’s one way of looking at how things have gone since the Philippines won a favorable decision from the Permanent Court of Arbitration (PCA) in The Hague in its case asserting sovereign rights under the UN Convention of the Law of the Sea (Unclos) against China’s “nine-dash line” claim over most of the South China Sea.
The PCA ruled that, under Unclos, the Philippines alone may exploit marine resources in its exclusive economic zone (EEZ) 200 nautical miles (370 kilometer) from the country’s territorial baseline surrounding its main islands and the waters between them.
So, the Chinese may not bar Filipino fishermen from Scarborough Shoal, and undertake economic activities, including reclamation, within the EEZ, as they did at two reefs. Western governments and media, and Filipino leaders favoring a tough stance toward China, urged President Duterte to assert the ruling, backed by US forces.
But Duterte reversed his predecessor’s adversarial approach. He agreed to resolve disputes through bilateral talks, not arbitration, which Beijing opposed. Duterte also scrapped planned naval patrols with the US.
Then, in his October state visit to Beijing, Duterte declared “separation” from America and “alliance” with China and Russia. That won him $24 billion in aid, loans and investment pledges from Beijing.
Filipino fishermen also resumed fishing at Scarborough Shoal. China was quick to defuse issues, like the reported plan to build monitoring facilities on Scarborough Shoal, announced by a Chinese provincial leader, but promptly denied by China.
The half-empty view
Western media and analysts lambasted the diplomatic turnaround; so did architects of The Hague case: former Foreign Affairs Secretary Albert F. del Rosario and Senior Associate Justice Antonio Carpio of the Supreme Court.
On the ruling’s anniversary last week, the pair, along with experts convened by del Rosario’s ADR Institute, again deplored Duterte’s refusal to aggressively press Beijing on the Philippines’s Unclos rights.
Their common refrain is that Duterte is weakening Philippine claims by allowing China to undertake activities that could convey possession under international law, including reclamation and militarization.
Justice Carpio said Duterte “dropped the ball” when, as the President put it, he “set aside” The Hague decision. The staunchly pro-American del Rosario reiterated his view that the case should be cited in the Code of Conduct in disputed areas, which the Asean wants to conclude with China this year.
Prof. Jay Batongbacal, director of the University of the Philippines Institute for Maritime Affairs and Law of the Seas, warns that the environmental and military situations in disputed areas are becoming irreversible.
“For the environment, the point of no return is the collapse of the natural resources,” he said at the ADRI forum. On the military aspect, “the only thing left…is the activation of the defenses and the basing of actual assets” on reclaimed islands. Then “jurisdiction will follow”.
The half-full argument
While the del Rosario camp warns of an emptying cup of Philippine maritime claims, the Duterte administration and even some Western experts see water in the diplomatic glass rising.
Ambassador Jose Santiago Santa Romana, a top China expert who was once the ABC network’s Beijing bureau chief, leads Manila’s negotiators in bilateral talks with Beijing, which discusses, among other issues, conflicting territorial claims. He maintains that his country did not lose “an inch of territory” in mending fences with China.
Duterte himself has repeatedly said he will assert sovereign rights. In talks with President Xi Jinping in Beijing in May, Duterte did raise offshore oil exploration in the Philippines’s EEZ. That prompted Xi to warn of possible war.
Now, however, pending advice from the Department of Foreign Affairs, Manila may again allow oil drilling near Reed Bank, where Chinese ships once warned an exploration vessel authorized by the Philippines. Notably, Vietnam has also allowed new drilling in its EEZ. If China allows both actions, the glass water may indeed be rising.
There’s more. Beijing and Asean agreed on the code of conduct framework in April, raising hopes that it could be signed in the Asean summit meeting in November. And another rival maritime claimant, Malaysia, has also gotten cosier with China.
Indeed, even last year, some analysts conceded that Duterte’s conciliatory approach had led Beijing to follow The Hague ruling. “China,” writes global security expert David Welch of the Centre for International Governance Innovation, “demonstrated de facto, if not de jure, compliance.”
He noted that China hardly mentions the nine-dash line, has stopped building artificial islands, minimized high-seas confrontations, and avoided statements against the PCA ruling. Welch says the largely nonconfrontational approach all around enabled the Chinese Foreign Ministry to gain the upper hand against hawks in the military.
Now, is that better or worse than letting the frictions of past years get even hotter?