One of the first foreign policy tasks for Philippine President-elect Rodrigo Duterte’s administration will be to set a policy on its dispute with China over features, space and resources in the South China (West Philippine) Sea. He could continue the hardline, confrontational policy of his predecessor Benigno Aquino, make subtle adjustments to it or turn over a new page in Philippine-China relations. These options are each replete with real and potential pitfalls. He and his advisers must carefully explore them, and their costs and benefits.
Showdown in the South China Sea: how ruling by Permanent Court of Arbitration may play out in Asi
What are the options and their implications?
First, the policy choices may vary with the details of the highly anticipated decision of the Permanent Court of Arbitration regarding the complaints against China’s claims and actions in the South China Sea filed by the Philippines under the 1982 United Nations Convention on the Law of the Sea.
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Last October, in a unanimous decision, the court announced that it has jurisdiction to hear seven of the Philippines’ 15 complaints. Thus, the Philippines “won” the first round of its case. But this and even a decision favourable to the Philippines may turn out to be a Pyrrhic victory both for it and for stability and peace in the South China Sea. China refused to defend itself before the court, arguing – as it still does – that the court has no jurisdiction. It also stated that, as far as it was concerned, the initial award was “null and void”. Beijing has since repeatedly said it will not adhere to an adverse decision.
Even with a majority of court “awards” in favour of the Philippines, several issues are likely to remain. If the court finds that China’s nine-dash line – which is at the core of the complaints – does not have any basis in international law, it could still rule that one or more of the features China claims are legal “islands” entitled to continental shelves and exclusive economic zones. If the court does not address this issue directly for all the features claimed by China, then China can still make and pursue such claims. In that case, legal and political uncertainty would reign in the South China Sea, violent incidents would be likely to proliferate and the Philippines would be deprived of China’s investment, trade and largesse.
Philippine presidential front-runner Rodrigo Duterte open to talks with Beijing to resolve South China Sea dispute
Even if the verdict is entirely in the Philippines’ favour, it might then re-engage China in negotiations using the verdict as leverage to obtain an equitable resolution of the issues. In the campaign, Duterte was “all over the diplomatic map” on this issue. At one point he declared, “I will go there [to the Spratlys] on my own with a jet ski, bringing along with me a flag and a pole, and once I disembark, I will plant the flag on the runway and tell the Chinese authorities, ‘Kill me’.” But he has also said several times that he would enter a dialogue with China. “I would say to China, ‘do not claim anything here and I will not insist that it is ours’. If you want joint ventures, fine, we can get the gas and the oil. I believe in sharing.” On another occasion, he said, “You want to talk? OK. You want joint exploration? OK. You don’t claim it and we won’t claim it.”
Duterte has expressed concern about the Philippines bringing the legal case against China in the first place, arguing that a ruling China won’t accept is not worth much: “I have a similar position as China’s. I don’t believe in solving the conflict through an international tribunal.” He has also said that if China would finance and undertake certain rail projects in the Philippines, he would “shut up” about Philippine claims in the South China Sea.
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At one point, Duterte said he would hold bilateral talks with China on the issues if seeking a multilateral resolution does not produce results within two years. “If negotiations will be in still waters in one or two years, I will talk to the Chinese.” Most recently, he called for multilateral talks involving rival claimants as well as the US, Japan and Australia. A multilateral approach is probably a non-starter as China insists on negotiating these issues bilaterally and would certainly oppose involving “outside” powers. Moreover, China may simply wait out the two years, thinking that it can eventually dominate the Philippines in bilateral negotiations.
There are problems with the dialogue option. If the Philippines re-enters bilateral negotiations, it will severely undercut Vietnam and the US, which have strongly and publicly supported its arbitration against China. Others, like Indonesia, will be highly unlikely to file similar complaints. In that case, China’s policy of ambiguity, stubbornness and patience will have prevailed and one could expect Beijing to adopt a similar approach to other regional issues.
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Although Duterte is mercurial and inexperienced in foreign relations and therefore somewhat unpredictable, he does seem more conciliatory and amenable to dialogue with China than his predecessor, and to at least “freezing” the disputes. However, his pro-dialogue position could change dramatically if China publicly or physically challenges the Philippines. Then, Duterte’s macho traits are likely to drive policy.
Along these lines, Duterte has also said he will tout the Philippines’ alliance with the US to get China to accept the Philippine position. To this, China has replied that it will not tolerate “blackmail”. Either Philippine position should be of concern to US policymakers. Re-entering dialogue may undercut the US-Philippine alliance, the US “rebalance” to Asia, and the US apparent attempt to form a block to blunt China’s assertiveness in the South China Sea. Also, accommodating China would probably cool the Philippines’ warming ties with Japan. But the last thing a new US president needs is an unpredictable president of an ally rattling the US sabre at China.
This situation is likely to get more “interesting” as China, the Philippines and its supporters digest the forthcoming decision and its implications and the Duterte administration takes charge of the Philippines’ South China Sea policy. Indeed, hold onto your political hats; it’s likely to get rather stormy in the South China Sea.
Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China