Is the playing down of arbitration ruling a boon or bane for PHL?

The Association of South East Asian Nations (ASEAN), at a recently-concluded summit in Vientiane, Laos, was again silent about the July 12 landmark ruling of a United Nations-backed arbitral tribunal that favored the Philippines and rejected China’s excessive claim over the South China Sea.

It was an expected move because China, which exercises clout and influence among some ASEAN members, has opposed efforts to mention the ruling and bring the disputes to any international fora.

China instead demands that disputes be settled one-on-one between Beijing and other claimant states without intervention from outside forces, like the United States.

The ASEAN decides by consensus, meaning that even just one of its 10-member countries, has the capacity to block a decision or proposal.

Among the regional bloc’s key issues is the addressing of maritime disputes in the South China Sea. Four ASEAN’s members — Philippines, Vietnam, Malaysia and Brunei — are embroiled in overlapping claims with neighboring China.

At best, what the ASEAN leaders did in its final September 8 communique was to repeat past diplomatic rhetorics about managing the disputes. This included a call for an “expeditious” conclusion of a more legally-binding code of conduct in the South China Sea.

Last July, ASEAN Foreign Ministers met several days after the July 12 release of the ruling by the Permanent Court of Arbitration (PCA) in The Hague. However, they also refrained from mentioning the historic decision in their post-conference statement.

Also apparent was the Philippines’ silence on the issue.

New Philippine President Rodrigo Duterte himself has declared before the Laos summit that he will not insist on the inclusion of the arbitration ruling in the ASEAN’s final statement nor will he raise it in the meetings.

It was a departure from the policy of his predecessor, Benigno S. Aquino III, who challenged China’s massive claim through a legal case and stepped up military engagements in the South China Sea. 

Boon or bane?

However, is the playing down the tribunal’s award a boon or a bane for the Philippines?

At the ASEAN meeting, analysts said the Philippines ended its relative estrangement within ASEAN by playing down the issue.

Manila has struggled to get ASEAN’s full support amid China’s aggressive actions in the South China Sea.

“President Duterte has brought the Philippines back into the ASEAN fold,” said Carl Thayer, defense analyst and professor emeritus at the University of New South Wales - Australian Defense Force Academy.

“He has adopted a pragmatic approach with respect to the Arbitral Tribunal award and by doing so kept this issue low key,” he said.  “This has taken some pressure off China to respond in its usual heavy-handed way with bluster and threats.” 

Common positions

The Duterte administration's significant change of approach have made it much easier for ASEAN to adopt common positions that China might find acceptable, said Malcolm Cook, analyst at the Singapore-based ISEAS- Yusok Ishak Institute.

Duterte did state that he wants China to comply with the ruling. However, his conciliatory stance indicates that he does not want to antagonize Beijing especially as Manila prepares for bilateral talks to repair strained ties with its Asian neighbor.

"Duterte is clearly taking his chances here and I doubt we can have a meaningful engagement with China if Duterte insisted on the arbitration issue in ASEAN and other multilateral fora," said political science professor Richard Heydarian in a text message to GMA News Online.

Heydarian added the ASEAN statement is the "lowest common denominator that keeps ASEAN barely relevant in the disputes."

"It is very unlikely that ASEAN as an organization will ever openly point finger at China or take side with the Philippines over The Hague ruling," he said.

The Philippines is also hoping that China would allow Filipino fishermen back to Scarborough Shoal, seized by China from the Philippines after a standoff in 2012.

The PCA's July 12 ruling stated that no country can claim sovereign rights over the shoal, a traditional fishing ground for Filipino, Vietnamese and Chinese fishermen.

China, however, has refused to recognize the ruling.

The issue on the rival claims to the South China Sea, also called West Philippine Sea by Manila to refer to parts of it that fall under its exclusive economic zone, has long divided the ASEAN, which also includes Indonesia, Singapore, Thailand, Cambodia, Laos and Myanmar.

The lack of a unified position in the group over the maritime disputes has pushed the four claimants to seek other avenues. The group’s other members, wary of offending claimant China, discouraged ASEAN from taking steps to resolve the long-running disputes.

Not a victory for China

China may seem to have gotten its way again in the ASEAN summit but Thayer believes it did not score a victory.

He said ASEAN is firm and clear about the policy direction it wants to pursue.

The Chairman's Statement may have been a collection of past statements on the South China Sea but it still must be taken as unified consensus position.

ASEAN heads of government and states declared in the statement that they "remain seriously concerned" about ongoing developments in the South China Sea and have set out a seven-point policy representing the bloc's collective view.

“They once again called for self-restraint and the avoidance self-action that may further complicate the situation. They emphasized the importance of non-militarization…and ‘work expeditiously for the early adoption’ of an effective code of conduct.

They also ‘highlighted the urgency of the DOC’ and in the interim called for ‘preventive measures,’” Thayer pointed out.

DOC or the Declaration on the Conduct of Parties in the South China Sea calls on all claimants to exercise restraint and stop new occupation of territories.

However, it lacks the power to sanction states that will violate its provisions.

As a measure of incremental progress, ASEAN leaders also welcomed the adoption of the application of the Code for Unplanned Encounters at Sea and Guidelines for hotlines.

They also welcomed a Joint Statement of ASEAN and China Foreign Ministers on the full and effective implementation of the DOC, which Thayer considers an important declaration.

The Statement took the paragraph on self-restraint from the 2002 DOC, which says that all parties should refrain from occupying presently unoccupied features in the waters.

“In other words, ASEAN believes it has Chinese concurrence that it will not occupy and build on Scarborough Shoal,” he said.

"ASEAN can't force China to implement the Award, but it can pressure China to act with a modicum of restraint."

Philippine Defense officials recently released photographs of Chinese Coast Guard and other ships at the Scarborough Shoal, expressing fears that their presence in the area, which lies just 124 nautical miles from the country’s northwestern coast, could be a precursor to construction of another artificial island.

In retaliation to Manila’s arbitration case, China hurriedly transformed seven formerly submerged reefs into man-made islands equipped with airstrips and buildings.

This move aims to cement China's claim over the waters and bolster its military presence in the area, drawing concerns from several countries led by the US, Manila’s long-time treaty ally.

Given the Duterte administration’s adoption of a pragmatic approach to the disputes, former Philippine deputy Foreign Secretary and Permanent Representative to the United Nations Lauro Baja said it is premature to assess the strategic value of such policy.

“We can only look at it in the context of Chinese actions – past and present,” he said. “The important thing is to take control of the implementation of the ruling and not allow China or the US or both to decide for us what to do with the awards.”

“That would be another tragedy,” Baja said.

Analyst Cook said he finds it “problematic” that the strongest advocates urging countries to abide by the tribunal ruling are Western powers and Japan, which is also entangled in a separate territorial row with China in the East Sea.

“The ruling favors the maritime rights claims in the South China Sea of the Philippines, Indonesia, Brunei, Malaysia and Vietnam. If these claimants do not actively support the July 12 ruling, an opportunity to support the rule of law will be lost,” Cook said.

He said the Duterte administration should not be too confident in assuming that it can gain by restarting talks with China while making no effort to push the ruling that comprehensively supported Philippine maritime rights and undercut those of China.

“The history of previous bilateral talks and China's actions in the West Philippine Sea suggest this gamble will not pay off,” he said. — with Virgil Lopez/VVP/KBK, GMA News