For four years, former Philippine Supreme Court justice Antonio Carpio and others like former Foreign Minister Alberto del Rosario have vented at President Rodrigo Duterte for what they considered his accommodation of Beijing’s “aggression” in the South China Sea by failing immediately to implement an arbitration victory against China.
They launched a campaign that severely criticized him and his China policy and called on him to confront China regardless of the consequences – including the potential damage to the Philippine economy and its people.
Now the critics are singing a different tune. This is because they now recognize that Duterte’s strategy may be on the verge of success.
The arbitration case was brought by the Republic of the Philippines under the presidency of Benigno Aquino Jr against the People’s Republic of China using the dispute settlement provisions of the United Nations Convention on the Law of the Sea. It argued that certain claims and actions by China in the South China Sea were violations of UNCLOS.
On July 12, 2016, just after Duterte took office as the new president, the tribunal ruled in favor of the Philippines on almost all its complaints. Although the panel did not rule on maritime boundaries per se, it did rule that China has “no historical rights” [to resources] based on its “nine-dash line” historic claim.
This reaffirmed the Philippine’s EEZ (exclusive economic zone) and continental-shelf claims. Perhaps more significant, it ruled that no above-high-tide feature in the South China Sea was entitled to an EEZ or a continental shelf, removing any alternative basis to China’s claims. China refused to participate in the arbitration and rejected the ruling.
Both Carpio and del Rosario were intimately involved in preparing and prosecuting the case, which in part explains their bitterness that Aquino’s successor Duterte did not immediately implement the “victory.”
But Duterte had a different, larger and longer-term view. He foresaw the dire consequences of immediately pressing the issue and decided that the real costs to the Philippines and its people would far outweigh the more theoretical benefits of national pride.
His approach to China was driven in part by his determination not to be bound by the cultural, ideological and foreign-policy shackles of America’s neocolonialism. He also wanted to make a decision that he thought was in the best interests of the Filipino poor who could not endure much more economic hardship that would almost certainly result from confronting China.
He likely reckoned that the Philippines’ future lies in Asia, that the Philippines is militarily weak, that China is militarily and economically already regional dominant and likely to become ever more so, and that no country – including its ally, the US – was likely to come to its assistance militarily against China.
He also may have assumed that the arbitration panel’s ruling is now part of international law and is not likely to change easily or quickly. So he and his like-minded supporters saw the situation as requiring deft hedging and the art of delay until a time more ripe for a peaceful mutually beneficial resolution of the issue.
Thus Duterte sought a temporary compromise that would allow the Philippines to share access to the resources. The result so far has been continued access to the fisheries for Filipino fishermen and the possibility of “joint development” of any oil and gas.
In the meantime, Philippine-China relations – including economic relations – remained good. The alternative to Duterte’s policy – trying to implement the arbitration decision – would likely have resulted in no access to the Philippines’ own resources and crippling economic, political and perhaps even military retribution by China.
But Duterte’s critics including Carpio and del Rosario were livid. They called the policy “appeasement” and a failure to defend the Philippines’ constitutional right to the resources in its EEZ and on its continental shelf. They also made many unrealistic suggestions that would if implemented likely have led to intimidation by China, if not outright confrontation and subjugation.
They jumped at every opportunity to pressure and embarrass him into changing his policy. For example, they seized upon an incident at the disputed Reed Bank in which a Chinese fishing boat hit at night an unlit and anchored Philippine fishing boat, sinking the boat and leaving its crew to their fate. They tried to whip up nationalism – a move that could have forced Duterte to confront China.
But Duterte stood his ground and ignored their idealistic and dangerous demands.
Now, after years of carping and endangering the nation and his fellow Filipinos, Carpio is praising the result of Duterte’s policy, saying China has made a “soft admission” of the Philippines’ EEZ claim.
He said the arrangement “will satisfy the objective of the Philippines to preserve its sovereign rights in the EEZ in the West Philippine Sea” by retaining its constitutionally required 60% of the proceeds. He noted “it would also allow China, through its state-owned enterprise CNOOC and CNOOC’s partners, to get 40% of the net proceeds of the gas in Reed Bank.”
Even del Rosario praised the decision as a “constructive move.”
Now they may be going overboard the other way. This praise may be premature. The proof will be in the pudding. But the agreement that appears to be taking shape is indeed promising.
Such an arrangement would ensure that the Philippines retains sovereignty over the resources. Indeed, it enabled Harry Roque, Duterte’s spokesman, to say that allowing the exploration in the disputed area to proceed “was an exercise of the Philippines’ exclusive right in the area.” In other words, it was an implementation of the arbitration ruling.
On the other hand, assuming China National Offshore Oil Corporation (CNOOC) is the minority partner, China’s leaders can argue to their people that the Philippines has tacitly acknowledged its claim to resources in the Philippines’ EEZ by agreeing to give it a 40% share in the Reed Bank project.
Indeed, Philippine Energy Secretary Alfonso Cuisi said, “If they [Philippine majority-owned Forum Energy] can’t do it [by themselves – which they cannot] and they need a partner, they have to [emphasis added] partner with China.”
Such an agreement, that implicitly gives China first refusal to participate in oil exploration projects in disputed areas, would also earn considerable and needed goodwill for China in the region and set a precedent for solutions to its disputes with its other rival claimants. By accepting this sleight of hand, China would also be demonstrating that it can resolve its regional disputes to mutual satisfaction without the involvement of outside powers.
Ever the pessimist regarding China, South China Sea “expert” Greg Poling of the Washington-based Center for Strategic and International Studies, says “China will likely block new exploration in contested waters” like Reed Bank. It is true that China has done this before. But the present is a very different situation. Indeed, Cuisi said that with regard to exploration in the disputed area, “I am sure China will respect our actions.”
And China’s Foreign Ministry spokesman Zhao Lijan said that “China and the Philippines have reached consensus on the joint development of oil and gas resources in the disputed waters and have established a a cooperation mechanism or relevant consultation.” That sure sounds like some sort of mutually satisfactory understanding has been reached that would prevent China’s interference with Forum Energy contractors as they proceed to explore Reed Bank.
The point is that political compromise can and often does triumph over idealistic and nationalistic legal claims. Insisting on the latter to the limit is not the way forward. One hopes that is a lesson learned for other countries involved in similar situations.