Duterte’s South China Sea dilemma

Fresh into office, the Philippines’ newly-elected President Rodrigo Duterte is set to face arguably his toughest foreign policy challenge. Though much of his political capital is currently directed at addressing domestic predicaments, particularly the proliferation of drugs and criminality, he will have no choice but to play high-stakes diplomacy in coming days.

Phillippine President Rodrigo Duterte stands during the swearing-in ceremony at the Malacanang Palace in Manila

Phillippine President Rodrigo Duterte, who seeks better ties with China, faces stark choices after the Hague court ruling on July 12

Whether he wants it or not, Duterte will have to confront the reality that the Philippines has been thrust right into the heart of one of the century’s most vexing geopolitical flashpoints: the South China Sea disputes. Great powers are already chipping in. In the past month or so, both the United States and China have conducted massive naval exercises in the area, an unmistakable show of force against each other.

America conducted a dual-carrier naval drill, deploying the Washington-based USS John C. Stennis — the pivot of the Carrier Strike Group Three, along with guided missile destroyers USS Chung-Hoon, USS William P. Lawrence, and USS Stockdale and Aegis cruiser USS Mobile Bay — as well as the Yokosuka-based USS Ronald Reagan, part of the Carrier Strike Group 5. The two gargantuan carriers were accompanied by a whopping 80 F/A-18 Hornets, a total of 140 aircraft, along with almost 700 missile silos.

More recently, China has kicked off a week-long naval exercise in the South China Sea, within an 100,000 square kilometer zone around the disputed Paracel Islands (also claimed by Vietnam), deploying state-of-the-art Shenyang and Ningbo guided missile destroyers as well as the Chaozhou missile frigate. The timing is telling.

A compulsory arbitration proceeding, initiated by Duterte’s predecessor, Benigno Aquino III, is set to finalize in coming days, setting up a larger-than-life showdown between the besieged Southeast Asian country and its giant neighbor, China, which has vociferously dismissed the whole gambit as nothing but a foolish and provocative misstep.

Duterte, who seeks better ties with China and is intent on pursuing a ‘soft landing’ vis-à-vis China, faces stark choices. As I show in my latest book (Asia’s New Battlefield), this is not only about the two countries, but also about the fate of the whole regional security architecture.

Trial for ages

On July 12, the Permanent Court of Arbitration at The Hague is expected to release the final verdict of the Arbitral Tribunal, formed under Article 287, Annex VII of United Nations Convention on the Law of the Sea (UNCLOS), overseeing the Philippines’ compulsory arbitration case against China. Despite China’s boycott of the whole proceedings, and its vociferous opposition, the Arbitral Tribunal, in accordance to Article 9, Annex VII of UNCLOS, decided to move forward and examine the jurisdictional admissibility and corresponding merit of the Philippines’ case against China.

In accordance to Article 5, Annex VII, China was given multiple opportunities, repeatedly, to either join the proceedings formally or, informally, express its position by releasing position papers, foreign ministry speeches, or scholarly outputs that defend China’s position. Yet, China has refused to participate formally, though it has, through various channels, expressed its position on the issue.

Last October, the arbitration body effectively nullified China’s longstanding claim that, first, UNCLOS and arbitration bodies under its auspices have no jurisdiction to arbitrate the territorial disputes in the South China Sea; the Philippines has supposedly yet to exhaust bilateral negotiations before resorting to compulsory arbitration; and, finally, that China, under Article 298, has exempted itself from such arbitration procedures.

The tribunal maintained that the Philippine-initiated arbitration case “was properly constituted” and that the “act of initiating this arbitration did not constitute an abuse of process [as asserted by China].”

The judges reiterated that “China’s non-appearance in these proceedings does not deprive the Tribunal of jurisdiction,” and “international law does not require a State to continue negotiations when it concludes that the possibility of a negotiated solution has been exhausted.”

Crucially, the Tribunal decided that it can exercise jurisdiction on determination of the nature of disputed features, from the Scarborough Shoal – lying just over 200 kilometers away from the Philippines shores but 900 kilometers away from closest Chinese shoreline — to those in the Spratly chain of Islands, namely the Mischief, Gaven, McKennan, Hughes, Johnson, Cuarteron and Fiery Cross Reefs, many of which have been artificially-transformed, on an unprecedented scale unmatched by all other claimant states combined, by Beijing in recent years.

Moreover, the Tribunal also exercised jurisdiction on China’s allegedly aggressive maneuver against Philippine vessels operating close to Scarborough Shoal. Surprisingly, the court also took into consideration the Philippines’ allegations of ecological destruction as a result of China’s reclamation activities near Scarborough and Second Thomas shoals.

Tough Choices

However, key items such as the validity of China’s nine-dashed-line claims and (recently-concocted) doctrine of “historical rights” were left for further deliberation, on both questions of jurisdiction and merit. Philippines and like-minded countries hope that the court will also rule unfavorably against China on those items, which carry significant implications for other claimant states and the broader international community.

Most international maritime law experts expect the verdict to be largely unfavorable to China, but no one knows for sure to what extent. Meanwhile, Beijing has been waging a systematic campaign to denigrate and delegitimize the arbitration proceedings and distort its true nature.

In recent weeks, China has claimed that it has the support of a great majority of developing countries on the issue. These countires have, according to China, expressed opposition to the Philippines’ farcical lawfare (legal warfare). More careful analysis, however, reveals that only eight, mostly poor and dependent African countries, have done so, while as many as 40 countries have expressed support for the Philippines’ arbitration case and the necessity to comply with prevailing international law.

Meanwhile, Chinese state-owned media has retched up its rhetoric, adopting a more pugnacious language that is calling on the government to “be prepared for any military confrontation” once the arbitration proceedings are out. No less than Chinese President Xi Jinping, in a recent high-profile speech, warned, “The Chinese people don’t fear trouble but don’t seek trouble,” calling upon other countries to “not expect us to trade away our core interests nor should they expect us to swallow circumstances that harm our sovereignty, security and developmental interest.”

In the international realm, power is ultimately about authority and respect. But China faces the stark prospect of being openly branded as an outlaw by an arbitration body composed of the world’s leading maritime law experts. Ignoring the court verdict carries huge consequences for the country’s soft power. Much, however, will depend on what the Duterte administration will do.

Assuming the verdict is broadly favorable, President Duterte has the option of releasing a strong statement calling for ‘compliance’ and putting maximum diplomatic pressure on China to comply. Along with the actual verdict, this may provide a perfect justification for America, Japan and like-minded Pacific powers to conduct more aggressive Freedom of Navigation Operations (FONOPs) close to Chinese-occupied land features. So there are clear tactical implications too.

Alternatively, Duterte can use the arbitration to explore a modus vivendi with China. In exchange for not releasing a strongly worded statement, a move that will surely estrange Washington and other major allies, Manila can seek certain concessions from Beijing, which, in turn, could agree to allow Filipino fishermen and personnel greater access to contested land features and waters under its de facto control, among other things.

Of course, there is also the possibility that the verdict will be too legally ambiguous to allow both parties to save face and maneuver a ‘soft landing’ in the post-arbitration scenario. What is clear, however, is that Duterte’s foreign policy acumen will be heavily tested in coming weeks, as the world carefully watches his next moves in the South China Sea.

Richard Javad Heydarian teaches political science at De La Salle University, and formerly served a policy adviser at the Philippine House of Representatives (2009-2015). The Manila Bulletin, a leading national daily, has described him as one of the Philippines’ “foremost foreign policy and economic analysts.” He is the author of Asia’s New Battlefield: The US, China, and the Struggle for Western Pacific (Zed, London). Follow him@Richeydarian.

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