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Duterte’s gambit calms sea tension but renders law irrelevant —experts

BEIJING—President Rodrigo Duterte's decision to set aside the country's arbitration victory against China over claims in the South China Sea may have deescalated the tension in disputed marine area but it has made  the landmark ruling irrelevant, analysts say. 

Exactly a year after the tribunal under the Permanent Court of Arbitration (PCA) in The Hague handed down the July 12 decision, critics have remained at loggerheads with Duterte over his China gambit.

Duterte's camp praises the immediate benefits of his pragmatic stance that prompted Beijing to allow Filipino fishermen to return to the Panatag Shoal, their traditional fishing ground into which they had been denied entry.

But critics have warned that Duterte's gambit might have emboldened China to tread into "a dangerous path."

"The Duterte administration's choice to, in practice, accept China's abuse of Philippine maritime rights and to put aside the ruling takes away this essential tool and could well encourage further Chinese infringements," said Malcolm Cook of Singapore's ISEAS-Yusok Ishak Institute.

"A might makes right is good for the strong and bad for the weaker," Cook told GMA News Online.

Former Foreign Secretary Albert del Rosario, who led efforts to bring the country's disputes with China to international arbitration, lamented that despite providing China "a most favorable environment in the Philippines...we have not seen the change that we would have wanted from Beijing."

"As the recipient of many olive branches, it has had the opportunity to return the gesture, by acting in kind and with the respect of a good neighbor," he said in a statement sent to GMA News Online.

"It has neither changed in its direction nor exercised greater restraint. Despite its friendlier face, we do not see restraint in China's militarization and unlawful activity in the West Philippine Sea," Del Rosario said.

Duterte argues that demanding immediate Chinese compliance to the ruling may result in an armed conflict that the Philippines will certainly lose given China's military might.

A more pragmatic approach would be to focus on normalizing relations with China with the aim of securing more trade and infrastructure funds from it, and then raising the arbitration ruling under a friendlier climate, Duterte said.

With Duterte's friendly overtures, Philippine ties with China have dramatically turned around.

Chinese Foreign Minister Wang Yi declared after meeting Foreign Secretary Alan Peter Cayetano in Beijing late June that under the new Philippine president, relations have come under a "golden period."

Trade has grown and commitment has been reached to settle the Asian neighbors' maritime disputes peacefully, Wang said.

Philippine Ambassador to China Jose Santiago Sta. Romana said the Duterte administration’s policy effectively eased tensions in the disputed waters and restored strained ties between Manila and Beijing.

“This is, I think, an approach based on an understanding on how to deal with China. I think this was the shortcoming in the past. If you deal with China in a hard way, in the hardball manner you will face the same equally hard, if not harder approach from the Chinese,” he told visiting Filipino journalists here in an interview.

“For China to accept the award before improvement of relations, nothing will happen. Our relations will be frozen if both sides will not budge. It will be frozen forever,” he added.

Since he assumed office in June last year, Duterte has moved to mend ties with China that seriously deteriorated under his predecessor, Benigno Aquino III.

Under Aquino, the Philippines filed the arbitration complaint in 2013, angering China.

While befriending China, Duterte has been hostile to the United States, Manila's long-time treaty ally, after the later criticized his violent war on drugs.

The arbitration decision declared China's historic claim over nearly the entire waters as illegal under the 1982 UNCLOS [United Nations Convention on the Law of the Sea].

China, however, ignored the decision, calling it "ill-founded" and "naturally null and void."

The decision defined for the first time which South China Sea features were considered islands, rocks and low-tide elevations under UNCLOS, a crucial declaration since the assessment will define what extent of territorial waters can be projected by a particular type of maritime feature.

China and the Philippines are among the 163 signatory states to the treaty.

The decision, however, remains in a legal limbo a year after the arbitration ruling was handed down because neither the Philippines nor China have taken steps, required under the UNCLOS, to immediately implement the ruling.

"The net effect of their inaction has been to weaken the fabric of international law globally as UNCLOS is considered the constitution of the world's seas," said Carl Thayer, defense analyst and professor emeritus at the University of New South Wales-Australian Defence Force Academy.

Although any ruling by the arbitral tribunal is legally binding, the PCA body has no enforcement power.

While critics scored Duterte for setting aside the tribunal's award indefinitely, his conciliatory stance de-escalated tensions in the resource-rich South China Sea, a busy sea route where majority of the world's trade passes through.

After Duterte's visit to Beijing in October last year, China allowed Filipino fishermen to return to the Scarborough (Panatag) Shoal, a rocky outcrop teeming with marine resources, seized by Chinese Coast Guard ships from the Philippines in 2012 following a two-month standoff. China's action triggered the arbitration complaint by Manila.

Under Aquino, the Philippines had been the most vocal critic of China's aggressive actions in the disputed waters and challenged its sweeping territorial claims through arbitration and stepped up military engagements with the United States.

Cook noted that the sharp contrast between the Aquino and Duterte when it comes to the South China Sea "has reinforced the view that the Philippines is an unreliable state prone to sudden policy reversals."

"International law is an essential tool for weaker states to pressure stronger states to not abuse their sovereign rights and to hold them up for censure when they do. China is clearly abusing Philippine rights in the West Philippine Sea," Cook said.

While ignoring the ruling, China has pressed ahead with its construction of seven artificial islands in the South China Sea. Now completed, the islands have been equipped with military facilities, runways and surface-to-air missiles.

Such move sparked alarm among Southeast Asian nations—Japan, Australia and the US—fearing that it would increase tensions and hinder freedom of movement in the busy sealane.

In the aftermath of the arbitral tribunal's ruling, China has mounted displays of military force over the Spratly Islands, with Chinese fighter jets and bombers flying over Scarborough Shoal and sending warships to patrol the area.

On the other hand, the Association of South East Asian Nations, which groups the Philippines and nine other countries, collectively refrained from mentioning the July 12 decision in their official statements amid the Manila's silence on the issue.

China, which exercises clout and influence among some ASEAN members, has opposed efforts to mention the ruling and bring the disputes to any international forums, demanding that they be settled one-on-one between Beijing and other claimant states without intervention from the US and its allied governments.

"The bottom line is that President Duterte has given every sign that he will not stand up for Filipino national sovereignty because he fears Chinese retaliation and doubts the US will come to the rescue," Thayer said. —LBG, GMA News