Significant moments in history never follow the path of least resistance. They are often memorable at least partly because they were won at great cost.
Such is the case for the overwhelming legal and moral victory that the Philippines secured last month with the tribunal award in the compulsory arbitration case filed by the Philippines against China under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) over what Manila can now proudly call its West Philippine Sea (referred to elsewhere as the South China Sea).
The Philippines government was restrained in its initial reaction to the victory and the tenor of its response has not changed in intervening weeks. At first glace, this seems surprising in a country known for boisterous celebrations. The Philippines partied for days when its candidate was crowned Miss Universe late last year, and again in April when the national boxing icon (and now senator) Manny Pacquiao won a bout in Las Vegas.
Yet after the award was released by the PCA the reaction from Philippines Foreign Affairs Secretary Perfecto Yasay was so sullen, casual observers might have assumed the Philippines had lost the case. Yasay’s terse official statement merely called for ‘restraint and sobriety’, echoing President Duterte’s 'no-taunt, no-flaunt' policy. Both advocate carefully calibrated actions to cushion the blow for Philippines' opponent in the case. This is in sharp contrast to the previous Aquino administration’s more aggressive treatment of China.
The tight-lipped, almost cryptic response from the newly elected President, a man known for his animated language and unpredictable demeanor, is uncharacteristic but probably prudent, given the already tense situation. Reactions from Beijing suggest the conciliatory, more amicable approach of the Duterte administration has not gone unnoticed.
In the weeks since the award, Duterte has avoided discussion of the topic. He has not volunteered any forward strategy the country will employ to enforce the award, or to resume bilateral negotiations with Beijing. In recent ASEAN forums Yasay was reported to have not pushed strongly for inclusion of the arbitration award in the regional bloc’s official statements, for which he was criticised by seasoned Philippine diplomats. The only tangible directive from Malacanang appears to be sending former Philippine president Fidel Ramos as special envoy to China, with instructions and goals not made clear to the public, in order to resume talks with Beijing.
No change to geopolitical realities
The victory won by the Philippines in the arbitration award is final and binding. It carries huge precedential weight as a subsidiary source of international law. The multi-faceted aspects of the award will reverberate for years to come. It cannot be ignored or set aside despite China’s protestations that the award is illegal, null and void. China has even attempted to cast aspersions on the integrity of the tribunal judges. These allegations should not be dignified by response.
The Philippines, however, does need to be magnanimous in its victory. The award has not changed the geopolitical situation in the region. The stark military and economic asymmetry between the claimant states and China has not changed, and is unlikely to do so in the years to come. There are massive illegal structures sitting on Philippine waters that urgently need to be attended. There are contentious issues of reparation and state liability to be addressed. Even tougher to resolve will be questions of dismantlement, demilitarization and the de-escalation of tensions. All involved need to tread very carefully to avoid miscalculations that could lead to armed conflict or loss of lives.
The Philippines has much to consider and put in perspective including (but not limited to): economic and trade realities; the safety and welfare of Filipinos in China; and its business and trade relations. It needs to reassess its military and naval assets and recognise that it cannot rely on western external powers to underwrite security in the region, or depend on them to safeguard the country’s territorial integrity and national sovereignty.
There is speculation China is considering declaring an air identification zone over the South China Sea, similar to what it declared in the East China Sea in 2013. There is also a noticeable silence and even explicit lack of support from other claimant states. In the future, the tribunal’s recognition of the rights of the Philippines under UNCLOS may encourage others to follow suit. However, this does not appear likely in the near future. In fact, it seems the ruling has only highlighted fractures and divisions within ASEAN, exposing the drawbacks of the region’s consensus process and challenging ASEAN centrality.
The complexities associated with the South China Sea dispute lie in the intersection of international law, international relations, geopolitics, geostrategy and a rising global power seeking to claim what it views as its rightful place.
The lawyers have done an amazing job in securing this historic legal and moral victory for the Philippines. The next phase requires diplomats, strategists and others with expertise in foreign policy and international relations to to make this a real and lasting triumph for the Philippines. It will take considerable time, colossal effort and immense goodwill from both the Philippines and China to mend their frayed bilateral relations. At the moment it is best to be prudent and focus on the future as both countries wait for the dust to settle and find their bearings anew.