Wednesday, November 16, 2011


Remarks at a Forum on the South China Sea
Organized by the Carlos P. Romulo Foundation and 
Institute for Southeast Asian Studies, Singapore
17 October 2011, Manila Polo Club

On this occasion, I wish to focus my remarks not on the legal and technical dimensions of the Philippine claims on the South China Sea, about which there has been much discussion already and for which there are far more capable legal scholars and experts. I will instead focus on what I understand to be Philippine interests in the South China Sea, drawing from my background in the study of politics and international relations; and exploring specifically how the territorial disputes and the maritime jurisdiction questions relate with broader issues such as the future of Chinese power, Sino-American rivalry for influence over East Asia, and the value and efficacy of an ASEAN-centered regional approach to the problems. 

I wish to briefly address three points, based on my continuous observation and research on the subject:

1.     What are the Philippines’ “core interests” in the South China Sea?
2.     What has historically been the Philippine approach to the territorial and maritime jurisdiction disputes?
3.     What are the elements of the emerging Philippine policy toward the South China Sea under the Aquino government, and how do they reflect Philippine interests in the evolving regional context?

On the question of core interests, I would argue that the Philippines has three:

First of all, as a relatively young republic and a geographically fragmented archipelago - one that is strategically located at the crossroads of northeast and southeast Asia as well as of East Asia and the Pacific - respect for territorial integrity and sovereignty are Philippine core interests. The country is surrounded by a completely maritime environment, with much vessel traffic, and commercial and military navigation occurring daily. While there are legal obligations to allow other user states passage rights and to help ensure safety and freedom of navigation, from a national interest perspective, the exercise of such should not prejudice sovereignty or territorial integrity. Nor, following the entry into force of the UN Convention on the Law of the Sea (UNCLOS), should they diminish the country’s sovereign rights and jurisdictions that may be claimed based on UNCLOS.

Secondly, as a developing country with a huge and still growing population and a rapidly deteriorating natural environment on land as well as its internal waters, the resources of the ocean – including hydrocarbons, fisheries and other resources, will be major sources of future food and energy security, and may critically underpin the country’s development prospects in other ways. Contrast the Philippines with its fast-growing neighbors and consider how the disadvantages of being natural disaster-prone, energy-poor, geographically scattered and isolated from the rest of the region compound the need for resources to spur development.

Thirdly, as a country with porous maritime borders, still grappling with internal security challenges and with a poor defense capability, characterized by weak institutions for governance as well as inordinate dependence on its traditional ally, security against external threats, and the maintenance of a peaceful and stable external environment, including good order at sea, are likewise core interests.

I would argue that the actions taken by the Philippines – since the early discussions on the Law of the Sea, its claim to and subsequent occupation of the Kalayaan Islands, and the diplomatic initiatives undertaken particularly following Chinese occupation of Mischief Reef (which was a turning point for Philippine involvement in the disputes) would point to one or the other core interest being protected or promoted.

My next proposition is that at least since the end of the Cold War, the Philippines has been pro-active in seeking peaceful, cooperative and rules-based or at least norms-based approaches to the territorial disputes.

Among its initiatives was the 1992 Manila Declaration on the South China Sea by the ASEAN governments, following armed confrontation between China and Vietnam in Spratlys. The Declaration called for self-restraint and peaceful settlement of disputes.

The 1995 Philippines-China bilateral agreement on principles for a code of conduct, following Mischief reef occupation, set up working groups for confidence-building measures, fisheries and marine environment protection – with a provision indicating possible expansion to multilateral cooperation. A similar Philippines-Vietnam bilateral agreement was signed in 1997, and beyond that the Philippines and Vietnam undertook a series of joint marine scientific expeditions in the seas.

Manila also played an active role in persuading ASEAN and China to negotiate a code of conduct (COC), resulting in the 2002 Declaration of Conduct of Parties in the South China Sea (DOC), and it insisted on moving the agreement forward from the DOC into a legally binding COC.

The Philippines paved the way for the state-owned oil companies – originally its own Philippine National Oil Company and China’s China National Offshore Oil Corporation, but later joined by PetroVietnam – to hold a Joint Marine Seismic Undertaking involving pre-exploration research possibly leading to joint development of disputed areas. The agreement was signed on the premise that it was without prejudice to the respective positions and sovereignty claims of the countries.  However, it was allowed to lapse after getting entangled in domestic Philippine politics.

And now the Philippines is proposing to turn the South China Sea are into a Zone of Peace, Freedom, Friendship and Cooperation (ZOPFFC), and has begun to consult ASEAN in this regard.

There have been periods of apparent inconsistency in Philippine policy as well, such as shifting of focus from multilateral to bilateral and then back; and relations with China blowing hot and cold on the South China Sea question (although trade ties and people-to-people relations continued to grow). To some extent, these twists and turns were a function of leadership change and regime interests; but to some extent they also showed frustration with failures of either the bilateral track with China or the ASEAN-China processes to move forward. Ultimately, however, peaceful diplomatic approaches focused on regional cooperation were pursued rather than any major military build-up or outright balancing or containment strategies involving extra-regional partners.

One might argue that the Philippines did not have the means for a military build-up nor could it fully rely on the United States for support, and therefore this was the only pragmatic thing to do. But Manila did have alternatives – inaction, or free-riding - which is what other claimants may have been doing. Inaction or free-riding would have helped the Philippines avoid earning the ire of China, Vietnam, the US, and especially of its own public (now crying constitutional violations or even treason by the previous govt in, response to the JMSU). But that would have allowed the problems to fester, although in the end, fester they did due to ASEAN’s failure in taking collective action and the lack of political will to confront the real issues. 

Another option would have been for the Philippines to make even bolder unilateral assertions of sovereignty, such as drawing baselines from the main archipelago to include the Kalayaan Islands and Scarborough Shoal, instead of the more moderate tack of enclosing these in a regime of islands in compliance with UNCLOS. In other words, the Philippines’ actions were directed toward building an atmosphere conducive to establishing cooperative regimes, more than they were mere assertions of sovereignty or a strengthening of its claims.

That said, the Philippines has also demonstrated acts of sovereignty such as arrests of fishermen, legislating baselines, holding military exercises with allies, and others. Filipino civilian and military leaders also like to talk tough (albeit armed with a small stick), but behind the tough rhetoric is belief that reason and pragmatism will prevail.

The third issue I wish to turn to is how the Aquino government is beginning to more confidently articulate these interests and its preferred multi-dimensional approach to the problem. I offer some comments on the significance of the new approach, against the background of China’s growing military and political influence, the perceived decline of US (not to mention Japan’s) credibility, ASEAN’s lack of unity, but also set against a context of growing regionalism and economic interdependence.  

The Aquino approach is still evolving, but there have emerged certain visible principles and elements (and I invite our decision-makers to correct me if my observations are misplaced). These elements, I believe, provide good directions and have helped in breaking the impasse in the ASEAN-China dialogues on this issue, but they also raise many more questions that will not be easy to address.

The first element is shifting the parties’ attention from confidence building and exploring possible joint development to clarifying the basis of claims, and identifying disputed versus undisputed areas. This may be a good approach as the objective is to have greater clarity and somewhat more predictability in one’s courses of action. But in the Philippine proposal, will the definition of the extent of the claims and the disputed/undisputed areas pave the way to ZOPFFC, or can this not already be a precursor to negotiating sovereignty? Is this not a chicken-and-egg problem – should claimants clarify the disputed areas so they can pursue joint development, or should they engage in cooperation as a means to mitigate the disputes? Another key question is whether or not the regional states are ready to pin down any agreement to specific geographic metes and bounds. Are countries ready to negotiate these specifics?

A second element is emphasis on rules-based solutions, in accordance with international law.  This is absolutely necessary, particularly if the region aims to prevent a situation characterized by “might makes right”, which would push countries into arming themselves while hedging against the rise and decline of powers. However, what “international law” are we invoking? All the claimant states have ratified UNCLOS and are by and large bound by it, but China, for instance, also invokes inter-temporal law and its extensive nine-dash line claim encompassing virtually all of the South China Sea flouts every pertinent rule in the UNCLOS rulebook. Meanwhile, the United States still lies outside of UNCLOS, and insists on its own interpretation of freedom of navigation, including the right to hold military activities in exclusive economic zones of coastal states, which some countries in the region disagree with.

The Aquino government’s approach also stresses inclusivism and the involvement of other stakeholders. This is seen as useful in obtaining support from other major users of the ocean such as the US, Japan, Korea, or even India for a peaceful and equitable solution and ensuring that no single power will dominate the country’s maritime surroundings. However, this has to be balanced with respect for the littoral states and recognition of the principal role of the claimants in seeking solutions to the disputes.

“ASEAN centrality” is also an element of the Philippine strategy, and privileging a regional approach may also bring advantages, particularly as ASEAN is seen by most parties – including China - as neutral, moderate, non-threatening, and representative of smaller stakeholders. The various arrangements under ASEAN, including the ASEAN-China dialogue, the ASEAN Defense Ministers Meeting, ADMM Plus, or ASEAN Plus Three might be explored as to whether they are appropriate mechanisms to push forward the conflict management and dispute resolution processes. The problem here is that ASEAN remains divided on the issue of how to handle the disputes, and does not seem to have a collective appreciation of its potential strategic role.

Apart from its pro-active diplomacy, the Philippines has also opted to embark on modest capability building for its armed forces. This will help boost its confidence for at least the monitoring and enforcement roles it will need to play, rather than being intended to challenge other claimants. The downside of military modernization, not just for the Philippines but for the several other claimants and ASEAN countries now pursuing this more vigorously, is that it may sow the seeds for an arms spiral or race that would increase insecurity and instability in the otherwise peaceful region.

The new strategy of the Philippines is clearly intended to move the process forward, but there are two important missing elements which cause reservations on my part. First is that there is no parallel plan for the Philippines and China to persist in bilateral dialogue and consultations on the issue. During Pres. Aquino’s state visit to Beijing in September, the two countries reportedly “agreed to disagree”. A decision to disengage from direct consultations while pursuing the other elements of  the strategy can result in expanding the differences further, escalating mutual mistrust at a time when assurances of  their commitment to a peaceful diplomatic management of the disputes is most needed.

The second missing element is that the Aquino government appears to have very little faith in the processes arising from the 2002 Declaration of Conduct (DOC), after ASEAN and China failed to agree on its guidelines for close to nine years. While indeed the DOC is no longer enough, other ASEAN countries have invested in this track and expect discussions toward formulating a more binding code of conduct to be the next step, as the Philippines itself has often insisted in the past. The exact details of a code of conduct are unclear at this point, but one area that will need to be worked out is agreement on conflict avoidance measures, as this is where the current risks lie. Such measures are also necessary in order to provide a proper atmosphere for any future joint development or maritime security cooperation among the parties.

What we see from the present strategy appears consistent with previous Philippine diplomacy of seeking solutions. However, the biggest challenge remains getting the claimant states together - not against, but with China. The Philippines must assure its neighbors that solidarity and support on this issue is critical, not to help promote Philippine claims or to gang up against China as is sometimes perceived, but to provide regional support for cooperative solutions based on agreed norms and rules. Absent cooperative solutions, there is a risk that the situation deteriorates to one where military power becomes the final arbiter of the disputes.  

No comments: