Commentary: Without a ‘We,” it won’t work

YEARS have already passed since the arbitral decision on Philippines v. China was released. Since then, pundits have been offering advice on what the Philippines must do next. We can group them into two general categories: One group wants to internationalize the issue, and pursue a multilateral track; the other wants to pursue a bilateral track and negotiate directly with China.

The internationalize-the-issue group is inspired by what Nicaragua did after it won against the United States in the International Court of Justice in 1986. This group thinks and propagates the belief that the US complied with the decision, which I already exposed in my May 25, 2017 column as a lie (“The Nicaraguan option wishful thinking”). However, let’s still examine how effective this option could be.

This option involves rallying international support, persuading the world to condemn China, and pressure China to give up its interests in the South China Sea. The Association of Southeast Asian Nations (Asean) would be a good start to do this. But can we expect Asean states to have a united stand? Not all Asean countries are involved in the conflict. Is it in their interest to antagonize China on our behalf?

Vietnam might be the best country to ally with to do this, but don’t expect too much. Although international court decisions are only applicable to the parties it addressed (there’s no stare decisis principle in international law), the arbitral tribunal decision on Philippines v. China has negative implications on Vietnam’s claims, which also depend on some notion of historical rights.

The decision stated that “historical rights” are superseded by the UN Convention on the Law of the Sea (Unclos). If Vietnam accepts that, it would be against their interests. Besides, Vietnam has been successfully negotiating bilaterally with China on several issues; chief of their bilateral achievements is the maritime delimitation of the Gulf of Tonkin. Though they are historical enemies, somehow they are able to make it work. Perhaps we must learn more from the Vietnamese experience.

Besides lobbying Asean countries, another way to internationalize the issue is to utilize UN mechanisms. A UN General Assembly resolution can be filed by Japan or the US, urging China to comply. To make this work, prepare to lobby other countries to vote Yes. Can we match China’s diplomatic capital? The most probable outcome of this route is a perfunctory statement on following international law, which, by the way, every country disregards when it’s in their interest to do so.

Another route is the UN Security Council (UNSC). Being our ally, the United States can file a resolution urging China to comply with the arbitral decision. Nine of the 15 members (with no veto from a permanent member) are needed in order for such a resolution to pass. China, a permanent member, will inhibit itself. But expect that the resolution will be vetoed by at least one permanent member, Russia; and it will be voted down by the non-permanent members of the UNSC that have closer ties with China than the United States.

Also, pay serious attention to the Trilateral Communique between Russia, India, and China last April 2016 regarding this issue. The other two emerging giants of international relations agree with China: don’t internationalize the issue and that all disputes related to Unclos “should be addressed through negotiations and agreements between the parties concerned” (SputnikNews, 22 April 2016).

So, what now?

It’s worth repeating what Louis B. Sohn, renowned professor of international law and drafter of the UN Charter, once said:

“It is an axiom of international diplomacy that the most efficient method of settling international disputes is through diplomatic negotiations between the two governments concerned, without any meddling of third parties, other states or international organizations.”

Pursuing direct bilateral negotiations with China based on provisions of the Unclos and aspects of the arbitral decision that aren’t divisive is the way to go. Anything that touches on “exclusive privileges” would be unproductive at this stage of the relationship between China and the Philippines.

There are provisions in the Unclos that require states to cooperate, such as those that can be found in Part IX regarding enclosed or semi-enclosed seas, to which the South China Sea belongs. In the arbitral decision, the Scarborough Shoal has been declared traditional fishing grounds of both China and the Philippines. Thus, no country could prohibit the other from fishing in that area. Negotiating a fishing agreement with China and the sustainable use of the waters around the shoal would be a good start.

But there’s so much bad blood between our countries. In such a situation, the first thing that must be done is to rebuild trust. Thus, before addressing the rational and material aspects of the disputes, we must first address its psycho-political dimensions.

It’s impossible for parties to have an enduring agreement without trust. It is only after trust has been raised to adequate levels that talks can proceed to an exploration of common interests, which is the necessary step before reconciling divergent interests. Without a “We” that would be formed by such an exploration, any agreement won’t work. China and the Philippines are in a strained relationship that they both need to rebuild, and not in a broken marriage that they need to dissolve, which the madness of calls for #Chexit represents.

(An earlier version of this entry was published in the Manila Times on 20 July 2017).

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