Since initiating a legal challenge to China’s claims and recent activities in the West Philippine Sea (WPS) in January 2013, the Philippines had effectively restrained itself from undertaking any action in the contested maritime space believing that the same will undermine its case and that such exercise of self-restraint will confer it moral high ground. The primacy of the legal track apparently led the Philippines to close all other avenues of resolving the dispute while the case remains pending, despite the fact that (without necessarily endorsing) private out-of-court settlement remains a widely accepted legal option. The hands-off policy hurts Philippine interests indefinitely, notably fishing, without adequate relief or mitigation. It also prevents even the barest minimum repairs and improvement necessary to maintain the country’s facilities in the Kalayaan Island Group (KIG) /Spratlys in WPS. Finally, the legal fixation limits Philippine action and fails to take into account evolving realities and dynamics, notably increasing U.S.-China competition that blurs and shifts alliances, compelling smaller powers to be more cautious and contributing to overall regional anxiety and instability.
Fishing for jurisdiction
While the policy of inaction in WPS for the duration of the case may have its merits, it has considerable immediate and potential long-term unfavorable consequences. One of the innocent casualties to the disputes are Filipino fishermen who were advised to refrain from fishing in Bajo de Masinloc (Scarborough Shoal) as doing so may put them in harm’s way, a move seen by some as surrendering access to this rich traditional fishing ground to the Chinese. These poor individuals are not big commercial fishing operators who can assume the costs of moving to other farther fishing grounds, but are municipal or artisanal fishing people, whose very subsistence and livelihood depend on this nearby fishing lagoon. Government efforts to account for them and provide them with an alternative livelihood have been vague at present. One wonders why instead of finding ways to let them fish again in the area or equip them with more sturdy seaworthy vessels and better communication means to keep in touch with Philippine maritime law enforcement authorities in case they were threatened, they were told to fish at their own risk. The presence of Filipino fishermen in WPS, aside from curbing foreign illegal fishing, justifies the presence of Philippine maritime law enforcement assets in the area to regulate their activities and to ensure their safety and protection.
Meantime, while the Philippines hold back its own fishermen, other littoral states had been actively supporting the fishing activities of their own nationals to the point of escorting them as they fish in disputed areas. In fact, some claimants argue that far from being purely military fortifications, the structures they built on the features they presently occupy include provisions for supporting their fishermen, such as shelters in times of inclement weather at sea, thus bolstering not only their claims, but also civilianizing their jurisdiction – in a way conditioning the international community to believe that their presence in the area is not directed against any other state and that they do not pose a danger to freedom of navigation and overflight. Hence, while Filipino fishermen stay onshore, fishermen from other littoral states continue to fish and more importantly, fish for jurisdiction.
Winning the legal battle, but losing the islands to the sea
The Philippines had been a pioneer in demonstrating its effective jurisdiction in the WPS since the 1970s, but decades of neglect, complacency and now the present hands-off policy curtailed the necessary upgrades and improvements in most of the decades-old structures and facilities in KIG. Pag-Asa (Thitu) Island is the second biggest naturally formed land above water in the Kalayaan. Together with the Taiwanese-occupied Taiping (Itu Aba) Island, they may be the only two features in WPS, which can rightfully claim the status of true islands under UNCLOS. However, soil erosion and exposure to the elements are already reducing its land area. The Rancudo Airfield, one of the earliest and formerly the biggest of its kind to be established in KIG, has long been overdue for repairs and improvement to remain serviceable.
Lack of able infrastructure prevents the country from fully maximizing the benefit of KIG’s proximity to Palawan to facilitate the delivery of public goods, such as provisions and supplies and services to the more than 200 Filipino settlers in the country’s smallest municipality. There had been many proposals put forward for the rehabilitation of the structures in KIG, but none or very few of them ever materialized and the hands-off policy could only further stalled these needed undertakings. In 1994, then President Fidel Ramos planned the construction of lighthouses in KIG, but the project got bungled due to bureaucratic wrangling and concerns over possible reaction of other states. Looking back, that failure to seize the initiative costed the country lost momentum and strategic advantage. By 1995, the tide turned against the country’s favor with the Chinese occupation of Panganiban Reef (Mischief Reef).
Law is good, but sound strategy works better
After winning partial admissibility and jurisdiction from the Permanent Court of Arbitration (PCA), the Philippines expects the tribunal to render a decision on the merits of the case by next year. But as early as now, many had already said that China had already achieved fait accompli in the SCS through its island construction, making any final tribunal decision moot. By all accounts, China appears not willing to honor and comply with the tribunal’s ruling regardless of the reputational costs, arguing that SCS is a core sovereignty issue that they cannot compromise on. Domestic legitimacy and popular support can weather whatever international criticism China may receive on account of such non-observance.
Meanwhile, while Philippines’ hands were self-tied, other littoral states had been actively engaging one another in formal and informal platforms, including high level visits, exchanges, and dialogues, not to mention track 1.5, track II, and people-to-people diplomacy. Most importantly, activities on the ground, especially on the part of China, continued. In fact, it can be argued that the initiation of the case may have extinguished whatever prior restraints or inhibitions some claimants had with respect to conducting certain activities in the disputed sea, making hardly reversible facts-on-the-ground changes. In turn, China’s reclamation and construction of artificial islands in the perennial regional flashpoint further cemented the Philippine resolve.
Some relevant circumstances and recent sequence of events also led some in China to think that the arbitration was part of a larger containment strategy. The President of the International Tribunal of the Law of the Sea (ITLOS) at the time Manila lodged the arbitration was a Japanese, Shunji Yanai, and the lead legal counsel for the Philippines was a renowned American lawyer. The PCA decision also came two days after USS Lassen conducted its freedom of navigation operation, a move long-awaited by littoral states wary of China’s island building activities, but was seen by many in China as a direct challenge to its claims. Viewed from this larger geopolitical prism, the arbitration tend to be taken less as an independent Philippine undertaking in response to Chinese assertive actions in WPS, but rather viewed as an integral part of the U.S.-led effort to check China’s ascendancy through lawfare. Thus, instead of talking to the Philippines and trading compromises and concessions, China, following this logic, would prefer discussing with its rival the U.S., which it sees, rightly or wrongly, as the one ultimately behind all these. Hence, in the course of engaging the U.S. and other countries in the legitimate defense and enjoyment of the bounties of WPS, it is important for the Philippines to demonstrate independence and strict neutrality and non-participation in great power competition, particularly between U.S. and China, lest it be caught in the middle.
Balance we must: The fate of smaller powers
China’s rise is gradually challenging U.S. primacy in East Asia and, in this evolving context, middle and small powers thread a careful balance, force to be more calculating in hedging their bets and refrain from putting their eggs in just one basket. For long, the U.S. has been the region’s security guarantor, but even in this dimension China is already making some progress. China conducted joint anti-terrorism military exercises with Indonesia (July 2013), first ever joint naval exercise with Singapore (May 2015), first joint military exercises with Malaysia (September 2015) and first air force exercise with Thailand (November 2015). In addition, Thailand was reportedly acquiring Chinese submarines. These initiatives can be seen as challenging America’s rebalance to Asia, as well as its longstanding mil-to-mil exercises and security treaty alliance system with countries in the region (e.g. with Philippines, South Korea, Japan). The only complicating aspect in China’s security engagements with regional states is its expansive and ill-defined maritime claims.
However, despite the much publicized South China Sea (SCS) disputes, most littoral states continue to harness the Sea’s marine economic resources (even those well within China’s infamous nine dash line) with little incident, except for Filipino fishermen who continue to be deprived of access over Bajo de Masinloc since the May 2012 standoff. Indonesia had been strictly enforcing its law against foreign illegal fishing in its waters, including in its Exclusive Economic Zone, and had been sinking foreign fishing vessels, including a Chinese one last May 2015, without inviting adverse response from its neighbors. ASEAN leaders, including Indonesian President Widodo and Vietnamese General Secretary Nguyen Phu Trong had been actively shuttling to and from Washington and Beijing, as well as Tokyo, not to mention engaging their fellow ASEAN members and other regional players. In a feat of diplomatic rivalry, U.S. President Obama and Chinese President Xi, also made their rounds of East Asian capitals to reassure allies and partners and promote their leadership credentials.
This is the very fluid regional environment that small and middle powers have to learn to navigate. It requires a comprehensive appreciation of many relevant factors. It demands foresight and audacity moderated by caution and nuancing. Seen from this vantage, the Philippines’ legal fixation seems inadequate in responding to the needs of the times. It needs to be complemented by engagement elements. To this end, the recent visit by Chinese Foreign Minister Wang Yi preceding the attendance of President Xi Jinping in APEC 2015 at Manila may augur well for the resumption of a high-level officials’ dialogue between the two states. Hopefully, this could renew confidence building important for managing their bilateral relations beyond the WPS disputes and post arbitration decision.
It is often said that when the elephants fight, it is the grass that gets trampled. But far from being powerless pawns, small and middle states can and are actually cleverly exploiting the opportunities opened up by big power rivalry to advance their own national interests. It is not an easy balancing job to do but it is the fate that they must live or suffer. If they do it well and refuse to play in the hands of big powers, they can even keep the balance of peace and stability in an already tension-filled region.