AS expected, former Foreign Affairs Secretary Albert del Rosario is chiming in as the South China Sea issue gets exploited again by the opposition to score points against the Duterte administration. The opposition is exploiting this because the China-threat path could be a tool to pave the way for their return to power in 2019 and beyond.
Del Rosario is suggesting that the Philippines draft a resolution to be submitted to the UN General Assembly (UNGA) later this year.” The resolution, he said, “should request China and the international community to abide by and implement The Hague arbitral ruling of July 12, 2016.”
Those who don’t know how international relations work and how the UN system functions in the world would surely take this as a brilliant suggestion, in the same way that they applauded when the Aquino government filed the arbitration case against China.
But as soon as one evaluates del Rosario’s suggestion from the vantage point of knowledge, one will inevitably realize the unrealism and strategic ineptness of his suggestion.
First, del Rosario thinks that the arbitration ruling binds, not only China, but others as well. That’s wrong.
In international law, arbitration ruling, just like the decisions of the International Court of Justice (ICJ) are only applicable to the parties involved. So, Del Rosario’s request that the “international community” or any member of it should abide by the ruling of a proceeding it’s not a party to has no basis in international law.
Second, implementation implies the use of force. As it has no control over any force, the UNGA has no capability to implement court decisions. The only UN body that has that capability is the UN Security Council (UNSC).
However, issues can only be referred to the UNSC if they are “likely to endanger the maintenance of international peace and security.” One cannot expect the UNSC to take up this particular issue because China is one of its five permanent members that has the power to veto any resolution. Even if China inhibits itself, there’s Russia, another permanent member, that could kill the resolution.
Third, assuming that the Duterte administration heeds Del Rosario’s advice. The next question is does our country have the resources to do the lobbying required to pass that resolution? Is our country’s range of carrots and sticks as wide as what China has at its disposal?
Just like how Athens decided with whom it would ally between Corcyra and Corinth during the Peloponnesian Wars, 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.
Fourth, the purpose of arbitration is to end disputes in a peaceful manner. Perhaps Del Rosario is still in denial that that didn’t happen with our disputes with China. Far from ending the disputes, the arbitration proceeding and the resulting decision added another layer to the disputes.
This is not to discount totally the utility of arbitration in ending disputes. Arbitration is effective when it’s mutually entered into by the parties involved in the dispute.
Generally, international arbitration gets activated after a “compromis,” an agreement between the parties to submit their disputes to arbitration and to comply with the arbitral award.
“The obligation to comply,” Brooks Daly, former Deputy-Secretary General of the Permanent Court of Arbitration has written, “follows from the obligation to comply with the underlying agreement to arbitrate” the dispute.
No such agreement existed between the Philippines and China. Thus, from the start, as is already known to those knowledgeable about how international relations works, the arbitration proceedings that the Philippines sought unilaterally was destined to be nothing but a 501-page paper.
The lack of such agreement is an issue that China would certainly use as part of its informational campaign against the UNGA resolution tract that Del Rosario is suggesting. And all China needs to get from other countries in order to kill the resolution is their abstention.
And fifth, perhaps Del Rosario is banking on the power of shaming China in order to make it bend. That’s also based on wishful thinking. When China ignored the arbitration, its power and influence didn’t wane in the world. Countries kept on forging economic ties with it. European countries even joined the China-led regional bank, Asian Infrastructure Investment Bank (AIIB), despite being pressured against it by the United States.
Non-compliance and beefing up its defenses in the Spratlys, argues international relations pundit and former fellow in Del Rosario’s foreign policy think tank Richard Heydarian, 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.
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. For example, despite overwhelming objection to its invasion of Iraq, which was widely deemed as illegal, the economic relations of the US didn’t suffer. Did Thailand receive a debilitating diplomatic backlash when it sent its military to the Preah Vihear complex, even though the International Court of Justice had declared that Cambodia had territorial sovereignty over the disputed temple ruins (located in Cambodian territory but more easily accessed from Thailand)? No? Then you know exactly how shaming China would work.
(Published in The Manila Times on 12 June 2018)