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Foreign Policy

The Philippines, Two Years After the Arbitration Award

Jul 23 , 2018

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As the Philippines marks the second anniversary of its landmark arbitration award against China, President Rodrigo Duterte is facing growing domestic pressure against his Beijing-friendly foreign policy. Eager to develop warmer ties with Beijing, the Filipino president has ‘set aside’ the award, refusing to raise it in multilateral fora. In exchange, he has sought a mutually satisfactory modus vivendi in the South China Sea as well as large-scale Chinese investments in the Philippines.

Under his watch, however, China has even accelerated its reclamation activities and deployed advanced military assets to Philippines-claimed land features in the area. In response, prominent figures, the defense establishment, and the majority of Filipinos have begun to question the wisdom of Duterte’s strategic acquiescence, and have called on the Philippine government to adopt a tougher stance against China’s maritime assertiveness.

Trial of the Century

In July 2016, an arbitral tribunal, constituted under Article 287, Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS), nullified much of China’s claims in the South China Sea. It marked the culmination of an unprecedented effort by a smaller claimant state to dare taking China to international court.

According to the tribunal at The Hague, China’s nine-dashed-line claims and doctrine of ‘historic rights’ were incompatible with modern international law. The tribunal also censured China for inflicting ecological damage across disputed territories through massive reclamation activities. It also chastised the Asian powerhouse for restricting the access of other countries to ‘traditional fishing grounds’ surrounding the Scarborough Shoal, which is also claimed by the Philippines.

Beijing lashed out at the arbitration award, dismissing it as a “piece of trash paper”, which is null and void in the eyes of the Chinese government. It reiterated its “three no’s” policy of non-participation, non-recognition and non-compliance vis-à-vis the arbitration award. According to Article 296 as well as Article 11 of Annex VII of the UNCLOS, however, the award is final and binding, hence rendering China a de facto outlaw.

Duterte, however, has sought to justify his strategic acquiesce by claiming that China has threatened to wage war against the Philippines if the latter were to assert the award at global fora. He has instead pushed for joint development agreements with Beijing in disputed areas, while downplaying the significance of China’s reclamation and militarization activities in the area.

Much to the delight of Beijing, the Philippine president also vetoed any criticism of China during his chairmanship of the Association of Southeast Asian Nations (ASEAN) last year. In recent months, China has deployed surface-to-air missiles, anti-cruise ballistic missiles, and electronic jamming equipment to Philippine-claimed land features in the Spratlys.

It has also stepped up its strategic footprint across the Philippines’ eastern and western continental shelves, both in the South China Sea as well as in the Benham Rise. Meanwhile, China’s promises of large-scale investment have, so far, proven a chimera. The Philippines’ traditional economic partners – Japan, America, and Europe – remain the biggest investors. Japan alone out-invested China by a factor of 23 in the first year of Duterte’s presidency and is the main driver behind big-ticket infrastructure initiatives such as the subway metro project in Metro-Manila.

Shifting Gears

As a result, a growing number of Filipinos believe that China has taken Duterte for a ride, skillfully managing to extract geopolitical concessions without offering much in return. And public discontent is rising.

According to a recent survey by the Social Weather Stations (SWS), a leading polling agency, more than 8 out of 10 Filipinos have opposed Duterte’s preference for a ‘meek’ and ‘humble’ policy towards China. Another authoritative survey, by Pulse Asia, showed that 7 out of 10 Filipinos want the president to assert the Philippines’ rights in the South China Sea based on the arbitration award.

The Armed Forces of the Philippines (AFP), which remains deeply wary of China and has maintained strong institutional ties with America, has repeatedly underscored its constitutional commitment to defend the country’s territorial integrity and sovereign rights. It has even expanded its presence and upgraded facilities in Philippine-occupied land features in the Spratlys chain of islands.

Prominent statesmen have joined the chorus of mounting criticism against Duterte’s China policy. During a high-profile event marking the second anniversary of the arbitration award, organized by the Albert Del Rosario-Stratbase Institute, Vice-President Leni Robredo lauded the previous Benigno Aquino administration for filing the arbitration case against China. She called on the Duterte administration to “peacefully protest any effort to limit or control movement in these waters….[and] stand in opposition to military build-ups in the [South China Sea].” The vice president also called on every Filipino to “celebrate that [arbitration award] decision,” and for the government to use the “hard-won victory” as “the foundation for all future engagements” in the South China Sea. 

Supreme Court (interim) Chief Justice Antonio Carpio, meanwhile, criticized the Duterte administration for placing the award in the “deep freeze.” He has argued that instead, it has been external powers, particularly the United States, France, and the United Kingdom, that have been effectively implementing the arbitration award through Freedom of Navigation Operations (FONOPs), which challenge China’s expansive claims in the South China Sea.

Former foreign secretary Albert Del Rosario, who oversaw the arbitration proceedings against China, accused Beijing of trying to “dominate the South China Sea through force and coercion” and defended the arbitration award as an “overwhelming victory” to push back against “China’s unlawful expansion agenda.” Former Solicitor General Florin Hilbay also lashed out at the Duterte administration for opting to effectively “waiver” the Philippines’ arbitration award, since this is the country’s best bargaining chip against China’s maritime assertiveness.

As Duterte enters his third year in office, his South China Sea policy is facing concerted opposition at home, putting into question the sustainability of his rapprochement with China. It also shows that the arbitration award continues to resonate among the Philippine public and establishment. 

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