Time to unsheathe the sword

In the four years since the Permanent Court of Arbitration ruled that China’s claim over the South China Sea/West Philippine Sea based on the so-called nine dash line was invalid, the Duterte administration had kept this legal sword in its scabbard. It had on occasion unsheathed it, but without real conviction. Most famously, President Duterte said he raised the ruling with China President Xi Jin Ping during his most recent visit to Beijing in August 2019, saying it was final and binding. Xi replied that China does not recognize the ruling and it will not budge from its position.

That said, both presidents – presumably over cups of Mao Tai – agreed to disagree and moved on to other topics – like joint exploration of mineral resources and promises of billions of Chinese aid and investments all put to paper in elaborate signing photo ops. Those promises incidentally have yet to materialize.

Recent developments though have changed the dynamics, signaling that now may be the time to wield that sword.

First, the administration has realized that its policy of appeasement has not dissuaded China one bit from consolidating its control of the disputed waters. China has continued to build artificial islands, fortified and militarized them, incorporated the area in newly created administrative jurisdictions, turned away Filipino fishermen while protecting their own in employing destructive methods of fishing, and conducted military drills and show of force exercises. President Duterte himself described China’s actions to his ASEAN counterparts, when they met last June 27, as “alarming” and called on the parties “to refrain from escalating tension and abide by responsibilities under international law”.

This is a big turnaround from the time during our turn to chair ASEAN in 2017, when then foreign secretary Cayetano admitted that the Philippines initially wanted to exclude China’s reclamation and militarization activities from the joint ASEAN statement, because “it’s not reflective of the present position.”

Secondly, Indonesia for the first time referenced the arbitral ruling in declaring that China’s claims on the Natuna islands and nearby waters as having no valid internationally recognized basis. ASEAN still has to step up and explicitly cite the ruling although at its last meeting this July it denounced China’s behavior and called for a rules-based order in the SCS/WPS.

Thirdly, the United States has issued a strong statement saying that China’s claims are unlawful and condemned its bullying of other claimants and that the US is “aligning its position on the PRC’s maritime claims in the SCS with the tribunal’s decision.” This is very significant because by explicitly recognizing the ruling, it provides a legal fulcrum around which like-minded countries can shape their messages.

In contrast with his predecessor, Foreign Secretary Locsin has been unequivocal in his position regarding the tribunal’s ruling. In a recent statement marking its anniversary, he reiterated “the country’s adherence to the award and its enforcement without any possibility of compromise or change.” Of course, China was quick to respond that the ruling was “illegal and invalid” and reminded that both sides had previously agreed to tackle this issue under a bilateral consultation mechanism. I am not sure how much this mechanism has accomplished, but while this provides an avenue, it should not be at the expense of abandoning the collective approach that ASEAN has taken over the years.  Indeed, there may now be greater receptivity to adopting the PCA ruling as an ASEAN position.

The Philippines must take advantage of this momentum and get other countries to continue to deliver the message that China respect international law. ASEAN has a chance to do this, under Vietnam’s chairmanship, as a common position, and not appear as taking the side of the US ASEAN members have substantial economic ties with China and will want to deflect China’s argument that the situation is just a product of cold war politics. In 2017, the US, Japan and Australia issued a statement declaring the South China Sea as international waters and called for parties to set up a mechanism that is legally binding and consistent with international law. Those sentiments are shared by the UK and France. So it should be a step nearer for them to adopt the position that the PCA ruling be respected.

Former foreign secretary Albert del Rosario has said that the upcoming UN General Assembly provides an opportunity to bring this to the world’s attention. I fully support this. I think the time is ripe to do so.

How will this naming and shaming impact China? Probably not at all. But for someone with an ambition to be a global power, being branded a rogue state who flaunts international law will not help its cause. The hope is that China embraces the responsibility of a global power and come to an accommodation that burnishes its moral leadership of the third world, while safeguarding its security and economic interest.

What is happening?

Recently, I have been receiving messages from friends in America and Europe asking me what is happening to the Philippines. They have been following news in the Philippines from the media and from reports from friends in the country.

What worries them is the weaponization of the law and a compliant Congress to go after the President’s critics. The President has amassed control over Congress, as well as the judiciary. By the time he steps down in 2022, 13 of the 15-member Supreme Court will be his appointees. Duterte also appoints lower-court judges.

Maria Ressa and Rappler have been at the receiving end of a series of cases brought by the administration after publishing stories critical of Duterte’s anti-drug war policies. The first case resulted in the conviction of Ressa and the writer of the article for cyberlibel for what many experts have called judicial overreach.

With regards to the renewal of the ABS-CBN franchise which drew the President’s wrath for not airing his political ads, despite Malacañang’s denial, the behavior of the Lower House, culminating in a no vote at the committee level, smacks of a rubber stamp Congress.

These friends said that these recent events are an alarming descent to “autocratic rule” and the extinction of the freedom of expression.  I AGREE.