A friend, who read the draft commented that my column should be for an academic journal. Personally, I deem it extremely important that more Filipinos should understand this issue. No issue challenges the nation more with the exception perhaps of the on-going impeachment.
The Philippines continues to push for ASEAN support for a rules-based approach to resolving the West Philippine Sea dispute in an ASEAN Foreign Ministers’ retreat in Siam Reap. This approach calls for all claimant states to resolve overlapping claims in the West Philippine Sea using as a basis international jurisprudence, in particular the United Nations Conference on the Law of the Sea (UNCLOS). In terms of the process, the Philippines has proposed that all claimants meet together in a multilateral forum, “under the guidance of ASEAN”. It also said that alternatively, it will consider third party adjudication, arbitration or conciliation, as appropriate, in the context of the dispute settlement mechanism of UNCLOS.
Basis for PH claim
The basis for the Philippine claim of sovereignty is the UNCLOS’ doctrine of territorial seas, contiguous seas and Exclusive Economic Zone (EEZ) emanating from a land mass – in this case the farthest extremities of the Philippine archipelago. So that means 12 miles of territorial sea, 22 miles of continuous seas and 200 miles of EEZ. We designated the Kalayaan Island groups as a “regime of islands” meaning we claim sovereignty but concede that these are disputed by other claimants. This is pretty straightforward. China on the other hand maintains that because it was the first to discover, name, occupy and develop the “Nansha Islands” and exercise sovereignty over them, then its claim is far superior. Moreover, these islands generate their own maritime zones under UNCLOS rules which the Chinese represent as the so-called nine-dash line. Unfortunately, this line covers over one million square mile of the West Philippine Sea.
The Philippines maintains that the nine-dash line must be subjected to validation under the rules-based regime of UNCLOS to which both the Philippines and China are signatories. The crux of the Philippine argument is that historical occupation – which it disputes - is not sufficient as basis for claiming sovereignty and that furthermore the land features of the Spratly Islands chain do not meet the UNCLOS criteria for claiming maritime zones and maritime delimitation. These criteria include the ability of the land mass to support permanent human habitation. Except for a few islands, we know that the disputed territory consists mostly of rocks and reefs many of which are submerged. This is the substantive aspect of the dispute.
At the heart of the Philippine proposal is the establishment of a Zone of Peace, Freedom, Friendship and Cooperation (ZoPPF/C). Basically it calls for segregating or delineating the disputed from the non-disputed areas so that it will make it easier for claimant-countries to jointly develop areas that are being claimed by several countries. The difficulty with the ZoPPF/C proposal is that it is premised on the parties agreeing on what is disputed and what is not disputed – a catch 22 proposition considering that China is starting from a position that it has “indisputable” sovereignty over the entire West Philippine Sea.
The Philippines faces two arduous challenges in getting its proposal off the ground. The first is to get ASEAN to put its act together. The second is to get China to sit at the negotiating table with all claimants – if not all of ASEAN. Both are replete with formidable obstacles.
ASEAN
ASEAN’s diversity and the fact that only four ASEAN states out of ten are disputants make it hard to build a common ground. Add to this China’s ability to influence Cambodia, Laos and Myanmar, which some critics say is tantamount to a “ghost veto”. Some other members also have their own agenda that do not always coincide with the Philippine and Vietnamese positions. ASEAN’s aversion to interference in each other’s domestic affairs and preference to the “ASEAN Way” of resolving conflicts through the non-legal means of consensus-building and conciliation also militates against a rules-based regime which implies adjudication. To date, ASEAN’s experience with adjudication by a neutral body has not been positive.
Leadership change in China
China also faces its own domestic challenges. I have pointed this out before in an earlier column on this subject but John Hemmings writing in the Nov. 23 issue of The Diplomat, perhaps states it with greater clarity. He said that “there is near-universal support among China’s public for its claim over this large area, with little understanding of the principles of contemporary international law, continental shelves, or exclusive economic zones. Instead, Chinese public support for these claims has developed through the education system, where students are taught that Chinese authority over this area extends back to the Chin Dynasty. Despite the weakness of historical claims, they have a strong hold over the imagination of the public and this support makes it impossible for any Chinese government to make concessions on what are considered issues of sovereignty. Compromise in this situation would be perceived as a betrayal of national sovereignty, and this isn’t just a Chinese problem.” China is undergoing a leadership change which started in 2011 and will culminate in 2013 when President Hu Jintao hands over the reins of government to his successor, widely believed to be Xi Jinping. Given the current state of the public mindset on the Spratly Islands issue, it would be difficult to imagine a major shift in China’s position on this issue until the new leadership has consolidated its grip on power. His point about this being not only a “Chinese problem” is well taken. Our own experience in the Philippines when the joint seismic exploration agreement with China and Vietnam was branded “treasonous” proves this. In Vietnam, the massive street protests triggered by incidents between Vietnamese fishermen and Chinese maritime force in the Paracels, show that this remains an emotional issue considering the history of violence that has punctuated this dispute from time to time.
Challenge of the Philippines
Professor Aileen Baviera, writing in the Eurasia Review, Jan. 9, 2012 edition says that “the immediate challenge for the Philippines is persuading both ASEAN neighbors and China that the solidarity and support it seeks is not for promoting Philippine claims or for ganging up on China. The larger aim is to institute cooperative solutions addressing the roots of the conflict based on international law.” She adds that for their part “Vietnam, the Philippines and ASEAN as a whole will do well to build their own consensus on the issue and clarify to China the parameters of their proposed multilateral approach for addressing the disputes, as well as their expectations for the Code of Conduct.” I cannot agree more.
Steadfast pursuit of claim
The Philippines should continue to press its case – it has no other choice. Equivocation will just embolden the hard-liners in China. Others feel that this may suit what they perceive as its effort to freeze the situation so as to forestall internationalizing oil exploration in the disputed areas. Vietnam has already signed deals with Indian exploration entities and the Philippines has already begun to bid out exploration concessions to various local and international groups. Being quiet can lead to future complications particularly to the ever present threat of creeping occupation.
But the Philippines should go beyond generalities and be more specific about its proposal. What is disputed and non-disputed? What specific forms of collaboration is proposed for the disputed areas? Is there any scope for participation by other claimants in the exploitation of the resource in the non-disputed areas on commercial terms? How do we address the concerns of China about securing its maritime routes? In this regard, the US, Japan and Australia have also voiced their concerns. Much of the trade between Europe, the Middle East and East Asia passes from the Indian Ocean through the Malacca Strait, then up through the South China Sea to China, South Korea, and Japan. (Curiously, the European Union, which has a big stake in preserving freedom of navigation in the area, has been quiet on the issue.) Domestically, we should resolve issues that tie up our hands in negotiating practical solutions – for example, on joint surveys and exploration.
Fleshing out the Code of Conduct (COC) will be crucial in terms of defining the procedural aspect and in setting up train collaborative efforts in such areas as marine conservation, prevention of trans-national crime and piracy. This is still the best way to get ASEAN engaged in the process and the most logical entry point for the Philippine proposal.
We should also not dismiss the usefulness of conducting some bilateral consultations with China because of our fear that this would be one sided. There is value to clarifying certain specifics for example at this level. But they should be undertaken on the understanding that its purpose is to feed into a multilateral level solution and not in lieu of.
Harsh rhetoric from one side will beget harsh rhetoric. What is more important is to look beyond the rhetoric – particularly those coming from the Global Times which calls for teaching Vietnam and the Philippines a lesson through “small wars”. We should instead be perceptive about China’s long term view of itself and its role in the world. Perhaps once the Chinese leadership change is settled they will feel confident enough not to keep mining its past history of Western power oppression and humiliation to generate public support. That it would now be more in China’s interest to now exercise restraint if it is to gain the trust of its neighbors and thus its stake as a regional power. They should be reminded of its oft-stated “peaceful rise” approach to its foreign policy.
Prolonged journey
Given all these variables, the eventual resolution of the West Philippine Sea dispute is still a long way away. Even an interim resolution may prove elusive. But I believe that the Philippines has put on the table a credible beginning to such a journey. It provides an avenue for clarifying the issues and concerns from each claimant’s perspective and provides an outlet for pressure from their respective domestic constituencies.
I Ching, the Book of Change states several times that persistence in a righteous course brings reward. Continuous, unflagging effort, persistence and determination will win in the end. We should not be discouraged by temporary setbacks.