In going to Beijing for a four-day trip last month, which was depicted by some Filipinos as a tributary mission by a Philippine sultan to a Chinese emperor rather than a state visit by a sovereign leader, President Rodrigo Duterte presented to China two precious — if not priceless — “gifts.”
The first was his decision to militarily and economically “separate” from America and to align himself with China’s “ideological flow,” on which he “will be dependent … for a long time.” He solemnly made such an announcement at a forum in China’s Great Hall of the People attended by its Vice Premier Zhang Gaoli.
Though he toned down his remarks upon his return to the Philippines, Duterte’s pivot away from Washington toward Beijing is bona fide. For China, his about-face was a valuable gift because, until recently, the Philippines was America’s closest ally in Southeast Asia. Manila was also a central part in Washington’s Asia pivot strategy, which has been aimed at constraining or containing China’s regional hegemonic ambitions.
His about-turn, seen as the most significant shift of geopolitical power in the Asia-Pacific region since the end of the Cold War, would hugely weaken America’s regional influence and immensely enhance China’s.
The second, and probably more precious, gift was the Philippine president’s willingness to play down the landmark South China Sea arbitration case against China his country resoundingly won in July and to resolve the Philippines’ maritime disputes with China through bilateral talks.
By adopting such a posture, he apparently kowtowed to China and acted as if his country had lost — and China had won — the international arbitration case.
Adoption of China’s maritime position
China has long and strongly claimed that the South China Sea disputes can only be resolved by negotiations. This led to its refusal to participate in the arbitration case submitted to an arbitral tribunal formed under the auspices of the United Nations Convention on the Law of the Sea (UNCLOS) in January 2013 by the administration of Benigno Aquino III, Mr. Duterte’s predecessor.
China’s vehement objection to the arbitration was also based on an argument that the two countries had agreed, through bilateral instruments and the 2002 China-ASEAN Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations. This is a key reason why it contended that the arbitration case was illegal.
Yet, in its award on jurisdiction and admissibility in October 2015, the five-judge arbitral tribunal in The Hague rejected China’s position and decided to consider the merits of the case.
In July 2016, despite China’s preemptive opposition and concerted international efforts — including seeking support from small, landlocked faraway African countries — the tribunal unanimously ruled in the Philippines’ favor on almost all of its fifteen submissions.
Among the tribunal’s key findings were that “China had violated the Philippines’ sovereign rights in its exclusive economic zone by (a) interfering with Philippine fishing and petroleum exploration, (b) constructing artificial islands and (c) failing to prevent Chinese fishermen from fishing in the zone” and “that Chinese law enforcement vessels had unlawfully created a serious risk of collision when they physically obstructed Philippine vessels.”
However, instead of celebrating — or at least positively welcoming — his country’s hard-fought victory, the administration of Duterte, who took office in June, called “on all those concerned to exercise restraint and sobriety.” Hardly ever does a winning party in such a significant legal dispute welcome such a historic ruling with such a restrained caution.
It is thus not surprising that during his visit to Beijing, where he was given the VIP treatment by Chinese leadership, Duterte agreed to put aside the South China Sea ruling and open direct negotiations with China.
His government’s rationale for such a posture may be that, as Duterte himself stated, “China is now in power; and they have military superiority in the region” and that, as his Foreign Secretary conceded, “the arbitration tribunal’s decision has no enforcement capability or mechanisms on its own.”
In a way, it is true that China is now the region’s most powerful country and that the tribunal’s ruling is nonenforceable because like any international court, it does not have an army or a police force.
Yet such an admission is unwise, if not dangerous, because it vindicates the view that the rule of law in international relations does not apply to great powers and that “might makes right” in international politics.
In fact, under Aquino’s leadership, the Philippines rejected that “backward” view.
In convincing the arbitral tribunal to consider the case, the Philippines’ then-Foreign Secretary Albert del Rosario stated that his country turned to the “arbitration to provide all parties a durable, rules-based solution” because it believed that international law has “equalizing power” that allows countries, such as the Philippines, “to stand on an equal footing with wealthier, more powerful states.”
More concretely, it firmly convinced that UNCLOS has “dispute resolution provisions that allow the weak to challenge the powerful on an equal footing, confident in the conviction that principles trump power; that law triumphs over force; and that right prevails over might.”
Such a strong conviction is the fundamental reason why the Philippines’s Aquino could legally compete with and triumph over the latter in the South China Sea despite being unable to challenge China militarily.
There are other striking reasons why the Aquino administration had helped the Philippines win the arbitration case against China whereas the Duterte government has now done the opposite.
In arguing — and seeking international support — for his country’s cause, Albert del Rosario said the arbitration case “is of the utmost importance to the Philippines, to the region, and to the world.”
In contrast, on the sidelines of the meeting of ASEAN Foreign Ministers in Laos in July, his successor Perfecto Yasay Jr contracted it, stating the case “concerns China and the Philippines alone.”
President Duterte himself also made it clear that, “This is a purely bilateral issue. It’s between the Philippines and China, I’m not going to raise it in any international forum, including the ASEAN.”
This stance must have delighted China because it has forcibly opposed any third-party involvement in the maritime disputes. It can also now clarify why the ruling has been excluded from ASEAN meetings and other relevant international forums.
Disrespect for international bodies?
Moreover, during the hearings of the arbitration case, the Philippines’ former top diplomat underlined that the Philippines is “a founding member” of the UN and “an active participant in” this “great” and “indispensable institution” and that it “has long placed its faith in the rules and institutions that the international community has created to regulate relations among States.”
Del Rosario also pointed out the Philippines was proud of the fact that it signed UNCLOS on the day it was opened for signature in 1982 and “has respected and implemented its rights and obligations under the Convention in good faith.”
However, such a high respect for the UN and its subordinate institutions and rules has notably waned under Duterte’s rule.
By stubbornly pursuing a bloody anti-drug campaign, which has resulted in extrajudicial killings, and by insulting and threatening to leave the international organization in response to the UN’s criticism of his war on drugs, the maverick president is very mistrustful and disrespectful of the UN and its bodies, e.g. human rights law and commission.
Whether the extent of his anti-drug war as well as the manner of his response to the criticisms of the UN and other international organizations over his deadly war on drugs is justified is debatable.
Yet, it is clear that by denouncing the UN and its officials, bodies and rules, the Duterte government has degraded its credibility and authority. Consequently, albeit indirectly, it has devalued the significance of the South China Sea ruling. This is because, after all, though China may disagree, the arbitration case was legally considered by an arbitral tribunal formed under aegis of the UN Convention on the Law of the Sea.
What is more, by publicly and vulgarly insulting the US, the UN, the European Union (EU) and alienating other key countries and international organizations, the Duterte administration has greatly diminished international support for its South China Sea case.
By May and June 2016, the G-7 and the EU issued strongly-worded statements on the South China Sea issue. Though they did not directly name China, those declarations were seen as aimed at the latter. By then about 40 countries, including the 28 EU members, had publicly said that the arbitral award would be legally binding.
However, after the issuance of the ruling, only a handful of countries have publicly called for the verdict to be respected.
China’s economic weight and pressure is a key reason why several nations, notably the EU members, have restrained their posture. Yet, Duterte’s behavior has also significantly contributed to this lack of support. How can other countries and organizations back its case when the Philippines itself does not want to defend it or disregards the rule of law and international organizations, e.g. the UN?
Judging by Duterte’s many other outbursts, including his “three of us against the world” remark, it is obvious that he neither cares about international reputation nor needs international support. It seems, for him, his alliance with China and Russia is not the only “the only way” but also enough for his country to deal with its domestic and international issues and even to take on the whole world.
At the moment, his overt overture toward China has paid off — at least, economically. To reward him for his deferential, if not submissive, attitude, Beijing has pledged to provide the Philippines with mega economic-related deals and loans.
However, the price the archipelago nation has paid — or will pay — for his China pivot is also enormous. Besides economic and military separation from America, the Philippines’ long-standing and most important ally, which will likely negatively impact his country in the long-term, if it is materialized, he has made substantial maritime and territorial concessions.
With such lavish deals agreed with China, coupled with Beijing’s claim of its inherent and indisputable sovereignty over most of the South China Sea, its opposition to the arbitration case and Duterte’s alienation of the Philippines’ key international partners and allies, the prospect that China will comply fully or even partly with the ruling has become unthinkable.
Given this, it is unsurprising why some Filipinos have already raised concerns and questions, such as: “Did we lose the PCA arbitration case?”
Mr. Duterte’s obsequious posture vis-à-vis China and his hitherto ambivalence toward, if not ignorance of, the South China Sea ruling would also potentially embolden Beijing’s maritime ambitions and dent any hope for a rules-based maritime order in the region.
Following the tribunal’s issuance of its long-awaited award, some international legal experts hailed the ruling, with one calling it a “game changer.” This is because the landmark verdict was seen as having “an impact on the development of a rules-based order for the oceans” and for the South China Sea in particular.
Unfortunately, judging by what has happened ever since, this is no longer the case.
Oh yes… so why is Philippines blowing its win? Well this morning I also thrown away hundreds of millions of dollars that Uncle Sam… no… I mean Nigerian prince emailed me about. Actually he emailed me three times, and I deleted his emails three times. Duh… now am I feeling dumb as Duterte.
So much for the international rulings, which Australia, Japan and US have ignored frequently in the past This south china sea arbitration was engineered by the America behind the scene and Philippines is just a foot soldier, this is all part of the American pivot to Asia and China containment policy. This so-called victory has done little to Philippines, US was just on the sideline letting Philippines to fight the Chinese war machine alone. Mr. Duterte is genuinely concerns about the economic and well being of its people, what Philippines needs is real economic development and infrustrure improvement to bring its people out of proverty. You don’t see America will care much about these, except to use Philippines as a bation to fight China for its dominance in Asia. The author has no clue except pro America to the bone.
Filipino fishermen are back at the sea to have there lives back on track, while both sides set aside their dispute and to improve economic ties, something the author is certainly disappointed.
Stupid analysis by a Vietnamese…ostensibly written to please his own Vietnam. USA invested less than 0.7 billion USD in PH in 2015. China is offering 10 billion USD in aid to PH…any comparison?
Duterte is smart. The SCS issue can be tackled long after he is gone from office. He needs to succeed in the drug war and to get billions for the PH economy. And this "expert" cannot see that strategy?
Rules-based? Did USA sign up for UNCLOS? What are we talking about then? Let’s worry about the next five years…time is running fast.
I don’t think Duterte has a single clue about anything outside his home town. He seems to want to become a vassal state of China just to spite the US.
No they do not. Chinese coast guard ships are still blocking fisherman as of this day.
I am sure that China is happy to have the PI as a new vassal state… Until they see how much it will really cost them to keep it afloat with all the other investments pulling out.
The arbitral tribunal’s rule on the South China Sea Case is flawed, biased and absurd. It lacks due process of law. The whole case proceeded with only one-side opinions. The arbitral tribunal did not follow the procedures set up in UNCLOS that the Chinese International Law Society filed an amicus brief questioning the tribunal, however, the tribunal did not explain and totally ignore these questions.
Article 121 of the UNCLOS provides that ‘rocks’ that cannot ‘sustain human habitation or economic life of their own’ are not entitled to an exclusive economic zone or continental shelf. The tribunal expands its authority to modify the standard by ruling that the land feature must have an ‘objective capacity which can sustain a stable community of people.’ It also adds that this capacity does not include official personnel. It also ruled that economic activity should not be ‘dependent on outside resources.’
IN THE CASE CONCERNING MARITIME DELIMITATION IN THE AREA BETWEEN GREENLAND AND JAN MAYEN (DENMARK v. NORWAY) in 1993, the International Court of Justice ruled ‘in the delimitation to be effected in this case, there is no reason to consider either the limited nature of the population of Jan Mayen or socio-economic factors as circumstances to be taken into account.’ ICJ’s rule is very clear that ‘limited nature of population’ or ‘socio-economic factors’ will not be used as a reason to deny an island’s title to have territorial sea and EEZ. However, the arbitral tribunal still disregards the ICJ’s rule and concludes an unreasonable award on the South China Sea case.
The whole case was organized by countries outside these areas for their own political intention. Money has played an important role in this case. According to Philippine’s media, Philippine spent 30 million dollars on this case, 7 million went to the lawyer’s firm in U.S. and 3.16 million went to the arbitral tribunal. Where the rest of the 20 million goes? Philippine should make the spending in public.
During the hearing, the so-called expert witness testified that there are no features in Spratly Islands qualified as an ‘island’; they all are ‘rocks’. However, the same expert said at least 12 features are ‘islands’ under UNCLOS in his publications in 2014.
In the case Territorial Dispute and Maritime Delimitation (Nicaragua v. Colombia) in 2012, the International Court of Justice ruled small cays with areas less than 1/10th of the area of Taiping Island to be islands. It needs particularly to be pointed out that two of the arbitrators in the South China Sea Case are also the judges in Nicaragua v. Colombia Case. These two judges voted in favor of the rule in Nicaragua v. Colombia Case, but denied Taiping Island is an ‘island’ in the South China Sea case. Why the ‘expert’ and these two ‘judges’ changed their point of views drastically? The arbitration on South China Sea is obviously a political decision and it is not a judiciary rule. There is no reason for China to accept
In the first place there is no win as the arbitration court decision is illegal. Philippines wisely realised this fact and has opt for discussions as advocated by China all along. Nevertheless western media hacks will keep trying to resurrect this failed CIA propaganda campaign and trying to change history.
Let Filipinos think for themselves, professor so call,don’t fan the fire.
The so-called abritration case is a joke. Arbitration can only occur if two parties agree to arbitrate. China did not agree. It is amazing that this "arbitration" is cited all over the place. In fact, the whole affair was orchestrated by the US to support its low intensity war on China. Never mind that the US will not ratifty the UNLOS treaty because the US wants the freedom to do what it wants. Nevertheless, it mobilized a gang of Washington lawyers to argue an case that the Permanent Court of Arbitration shouldn’t even have heard, according to it OWN rules.
Why not? The Philipines has been the vassal state of US for a long time now and has not got much economic assistant apart from a few guns. Would you not changing your boss if one one else gives you a better deal?
I do feel the sense of lost and anger of this Vietnamese author.
Warren Lauzon Investments pulling out? Pls provide the statistics.
China’s strategy is to shut the Americans out of SCS. They are less interested to exploit the seabed and marine resources. These can wait for a future decade.
USA’s pivot with Asia with support from its allies have alarmed China. Hainan is the main submarine base and they need to be able to disperse into the ocean without USA snooping around.
If China had allowed PH to fish and had entered into a dialogue with the Aquino administration, the arbitral proceedings may not have taken place. However, with Duterte, the dialogue is now resumed.
He blew this after first getting on his knees to blow the Chinese.
Simon Lee A few guns and some $44 billion since 1960.
If you think Duterte is dumb, wait till you get a load of President Trump. Listen to me, it’s going to be GREAT!
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I am Filipino and very concerned that Duterte has sold out Philippines’ territory for few pieces of silver to China.
He should have put aside his long held personal grievances/grudges against the US. He should have put in front Philippines’ national interest first and foremost.
At this stage, I can only consider Duterte’s anti-US and pro-China actions and words so far as treasonous and impeachable.
Hope he knows what he’s doing and his end game as many see him as a sell out and a traitor.
If remember correctly it was Aquino who sent his newly received gifts of military ships from US to chase away the Chinese fishmen which started the whole thing.
The reef was not the Philipines territory in the first place that was the reason why the US was not obliged to come to Philipines aid.