Commentary: The likely winner of the RP-PRC arbitration case

Whatever the outcome of the RP-PRC arbitration case, the real winner would be the United States and Japan.

“This is the solution to west Philippines sea, not US imperialist aggression and naval provocations,”  writes Gerardo Lanuza, a professor at the University of the Philippine. The solution to which Lanuza refers is the arbitration proceedings in the Permanent Court of Arbitration in The Hague. This, of course, assumes that the two are mutually exclusive. The Philippines winning — or even losing — the arbitration case will not roll back American forces from the Asia-Pacific theatre. Whatever the outcome, the United States will secure its place as the indispensable power in the Pacific: it will have a much more deeper presence in the region. The South China Sea will become more and not less militarised. Japan will join the fray. This is because the arbitral decision needs to be enforced and Washington and Tokyo have the wherewithal to do it. The US pivots to stay. Japan has risen.

Leading by example

The way the law works in the international realm is not the same as how it operates in the national sphere. For example, in general, trial in absentia is not an accepted judicial practice in most States. In RP v. PRC, we are witnessing a case proceeding without the other party present in the court. But the crucial difference is the absence of a credible institution that would enforce international law and the decisions of international courts. The UN Charter allows a party to a case being adjudicated by the International Court of Justice (ICJ) to ask the UN Security Council (UNSC) to give effect to the decision (Article 94, par. 2). However, the UNSC is not obliged to enforce it. And as Constanze Schulte notes in Compliance with Decisions of the International Court of Justice, ICJ cases referred to the UNSC are scant because “cases of defiance regularly involved a permanent member either on the applicant or the respondent side.” One example of these cases is the 1986 ICJ case between Nicaragua and the United States: the Case Concerning the Military and Paramilitary Activities in and Against Nicaragua. It was about how the US violated Nicaragua’s sovereignty by supproting the Contras. The ICJ ruled in favour of Nicaragua and ordered the US to pay reparations. The US didn’t participate in the merit phase of the case; withdrew from ICJ’s compulsory jurisdiction (until now the US, including three other members of the P5: China, Russia, and France, has not recognised the compulsory jurisdiction of the ICJ); vetoed all UNSC resolutions related to it; and ignored the UN General Assembly resolution urging the US to comply. And what did the international community do beyond this? Nothing. What lies beyond rhetoric is force — and no one could and would be willing to use it against the US.

Will China behave differently? All signs lead to No. China didn’t participate in the arbitration. In its statement regarding the Arbitral Tribunal decision on jurisdiction, China is adamant: “With regard to the issues of territorial sovereignty and maritime rights and interests, China will not accept any solution imposed on it or any unilateral resort to a third-party dispute settlement.” Writing for Huffington Post, Richard Javad Heydarian predicted that “we can anticipate…a ‘legal multiplier,’ whereby other claimant states such as Vietnam and Malaysia can also leverage the UNCLOS to defend their claims against a revanchist China.” If we can anticipate this, so can the strategic statesmen of China. China can just pre-empt this by withdrawing from the treaty, just like how the US withdrew from the compulsory jurisdiction of the ICJ.

Non-compliance and beefing up its defences in the Spratlys, Heydarian argued, will be harmful to “China’s soft power and bid for regional leadership” because they will be undermined by the “reputational costs, and…diplomatic backlash” of being defiant. I am not convinced. Firstl, how serious will these reputational repercussions be? States have different sources of reputation. Damage in one area doesn’t easily blemish another, unless these sources are sufficiently related. Despite overwhelming objection against its invasion of Iraq, the economic relations of the US didn’t suffer. Did Thailand receive debilitating diplomatic backlash when it sent its military to the Preah Vihear complex, even though the ICJ bestowed the Temple’s sovereignty to Cambodia? Will China’s non-compliance put a dent on its planned Asian Infrastructure Investment Bank (AIIB)?

The allure of Corcyra

A coalition of countries can form to levy economic sanctions against China, just like how a trans-Atlantic one formed against Russia when it annexed Crimea. But the Spratly archipelago is not Crimea. In Alliance Formation and the Balance of World Power, Stephen M. Walt identified the different factors that spur States to join an alliance: States feel more threatened by nearby States with enormous resources, greater offensive capabilities, and ambitions that could jeopardise their own interest. Russia was mostly all of these to the EU, but China? Learn the lesson of the Southeast Asian Treaty Organization, the alliance formed to contain Communist China: the British and the French didn’t see China as a threat just like the US did. Thus, the alliance was paralysed by fundamental difference on who and how threatening the supposed menace was. The planned economic sanctions of the US against China over the latter’s alleged cybercrime provides a preview on the prospect of a trans-Atlantic coalition vs. China. It’s grim. Hans Kundnani, a Senior Transatlantic Fellow at The German Marshall Fund of the United States, wrote about the difficult dilemma EU countries will face:

“In a conversation with Australian Prime Minister Kevin Rudd in 2009, Secretary of State Hillary Clinton famously asked: “How do you deal toughly with your banker?” It is striking that, since then, the United States seems to have found a way to do exactly that. But Europeans now increasingly face their own version of Clinton’s question. For some EU member states, particularly exporters like Germany, the question will be: How do you deal toughly with your customer? For other member states, particularly the countries of the eurozone “periphery,” it will be: How do you deal toughly with your investor? Unless EU member states can find answers to these questions, China could again divide the West as it did over the Asian Infrastructure Investment Bank.”

In Asia, Japan imposing economic sanctions against China will just hurt itself. Australia? China is its “largest two-way trading partner in goods and services.” India? In 2014, it forged “a series of deals [with China] aimed at boosting economic growth in both countries.” Will they be willing to sacrifice their interest for the Philippines? No. Reality bites: No country is convinced that China annexed any territory of the Philippines. No country calls the South China Sea “West Philippine Sea” as a matter of policy. As the Philippines argued, the Arbitral Case is not about territorial sovereignty but maritime entitlements (though I find the separation between the two theoretically vague and impossible in practice: If State X is entitled to Y doesn’t X have absolute control over Y? If yes, then isn’t that sovereignty?).

Just like how Athens decided with whom it would ally between Corcyra and Corinthians during the Peloponessian War, third States will decide on the basis of their national interest. The Philippines’ appeal to international law might be as evocative as the speech of the Corinthians, but as Thucydides narrated, it was the Corcyra’s promise of material gains that enticed Athens. It’s not very convincing that any country would see it in their interest to cut economic ties with China. China is no longer the China during the 1989 Tiananmen Square protest that the world could easily turn its back on. This doesn’t mean that third States will bandwagon with China; they will just not see it in their interest to take an aggressive balancing stance against it in order to support Philippine revanchism.

The lessons of Cuba

Using force is another way to make China comply — and it’s the most likely tool the Philippines will resort to either by forging alliances or by building its own military muscle. And here’s why. One of the fifteen submissions of the Philippines is a request that the Tribunal declares that “Mischief Reef, Second Thomas Shoal, and Subi Reef are low-tide elevations that do not generate entitlement to a territorial sea, exclusive economic zone or continental shelf, and are not features that are capable of appropriation by occupation or otherwise” (Claim 4). Among the different features occupied by China, Mischief Reef and Subi Reef are the only ones the Philippines want the Tribunal to proclaim as incapable of “being appropriated by occupation…”

This exception is strategic: a pre-emptive strike against China. It’s a military tactic clothed in legal terms. Mischief Reef is the nearest Chinese-occupied feature to the Philippines (250 km west of Palawan). It’s one of the artificial islands China built, which some suspected to be the location of a possible third airstrip. Understandably, some fear that Mischief Reef will serve as China’s launchpad for invading the Philippines. However, that’s very unlikely because it’s going to be a suicide mission. That’s repeating Russia’s folly, a gamble China will not be willing to take. What is certain is that Mischief Reef will boost China’s capability to weaken Philippines’ ability to further strengthen its foothold on its occupied features. Meanwhile, Subi Reef is China’s northenmost occupied feature, which might also “provide an adequate base for another air strip.” The Philippines fear Subi Reef’s reclamation projects because it’s near Pag-Asa Island (Thitu Island), which is also the Philippines’ military, air, and naval base in the Spratly archipelago. Its rundown military facilities doesn’t pose a military threat. Its civilian inhabitants are the only weapon deterring China — or Vietnam — from occupying the island. In 2002, President Gloria Arroyo populated this island with civilian volunteers in order to augment ‘the two dozen military workers” living there. In return, the volunteers “get free food and housing and guaranteed work.

The Philippines will largely rely on its military alliance with the US — and most probably a new one with Japan — in order to enforce the arbitral decision related to Claim 2. Emboldened by it, the Philippines will seek to roll back Chinese gains. In order to do that, it will invite the US and Japan to have a semi or permanent naval base near the Spratlys, probably in Palawan. In May 2015, Gen. Gregorio Catapang, the chief of the Armed Forces of the Philippines, already revealed plans of building a naval base in Oyster Bay, Palawan; but he said that lack of funds could prevent it from being fully realised. It will likely be funded by both Japan and the US. However, the Philippines will be foolish to think that Japan and the US will engage in a war with China in order to claim Mischief Reef and Subi Reef for the Philippines. Because of their economic relations with China, the most they will do is pursue a minimal containment strategy that can check China’s possible aggression once the Arbitral Tribunal decides that these features cannot be appropriated by occupation.

Most probably, the Philippines will end up like Cuba during the 1962 October Crisis. This time, US and Japan are the Soviet Union, while China is the US. Fears of American invasion made Fidel Castro enthusiastic of installing Soviet strategic nuclear missiles in Cuba. Upon knowing this, the US established a naval blockade to prevent missiles from reaching this Caribbean island. The crisis was arrested by a negotiation between Kennedy and Khrushchev, which deliberately excluded Castro. The Philippines will end up as a bargaining chip by both Japan and the US in their respective conflicts with China. The Philippines will receive this benefit: in exchange for some concessions, China will assure  these two countries that it will not attack the Philippines without direct provocation nor expand its presence in the Spratly Archipelago that would compromise freedom of navigation, the interest of these two powers.

However, this will come at a cost of foregoing a fully independent foreign policy towards China, just like South Korea towards North Korea and Taiwan towards China. As Steve Chan, Richard Hu, and Injoo Sohn observed in Politics of détente: comparing Korea and Taiwan, “to a significant extent, relations across the Taiwan Strait  and on the Korean peninsula are nested in and even derivative of relations among the larger powers such as the US and China. They are specially sensitive to Washington’s strategic agenda.” This time, Manila’s relationship with Beijing would be shaped by two powerful agenda setters. Just like Havana, Manila will not be at the table while Washington, Tokyo, and Beijing play mahjong. And like Havana, Manila will be deluded to think that it could run the show.

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