Commentary: The feared joint development with China

PUNDITS and politicians fear the joint development that the Duterte administration is exploring with China in the disputed areas of the South China Sea. Entering into such agreement, these folks say, would “legitimize” the claim of China, which they believe has already been invalidated by the decision the arbitration court at The Hague issued in July 2016.

On June 2, the Philippine Star highlighted the concerns of unidentified experts worried about the constitutionality of joint development with China (“Cayetano: Philippines, China in talks about joint development in South China Sea”). Their main contention: the areas are no longer disputed because of the arbitral ruling.

That’s funny. Obviously, the areas are still disputed. The decision didn’t put the disputes to rest because in the first place the disputants didn’t mutually agree to enter into an arbitration proceeding in order to resolve their conflict. Without that agreement, the arbitration proceeding, instead of contributing to the end of the disputes, created a new dispute.

Not only has the arbitral decision not ended our dispute with China, it also didn’t end our disputes with other claimants—Vietnam, Taiwan and Malaysia.

The line of thinking of these unidentified experts assume that the way disputes end in the domestic system is the same way they do in the international one. In the former, court decisions effectively end a dispute because of the force behind them. In the latter, all disputes end through an agreement between the conflicting states.
Jay Batongbacal, a professor of maritime affairs and the Law of the Sea at the University of the Philippines, is one of the experts concerned about joint development with China.
On May 28, Batongbacal said: “A joint oil and gas exploration by China and the Philippines in the West Philippine Sea will ‘somehow give up’ the arbitration ruling that said Manila had sovereign rights over the disputed areas in the sea” (Manila Standard, “Philippines-China oil hunt ‘gives up’ arbitral ruling”).
Interestingly, in a paper he co-wrote with Aileen Baviera in 1999, “When Will Conditions Be Ripe? Prospects for Joint Development in the South China Sea,” joint development was lauded as an “attractive” approach.
“The [Joint Development Zone] approach is attractive because its flexible and provisional nature allows it to reconcile in principle the needs of parties for simultaneously preserving sovereignty and territorial integrity, promoting peace, and security with its neighbors, and advancing profitable economic uses of the ocean,” they wrote.
Will the pursuit of joint development with China which Batongbacal and Baveira considered “attractive” in 1999 really “give up” the arbitral ruling? More importantly, will joint development with China no longer contribute to “promoting peace, and security…and advancing profitable economic uses of the ocean”?
Entering into joint development is not a violation of the UN Convention of the Law of the Sea (Unclos) nor of the arbitration ruling. There’s nothing in Unclos that prohibits joint development. That the arbitral ruling decided that we have exclusive rights over the natural resources in our EEZ doesn’t mean that we would give up the arbitral ruling if we pursue joint development.

In fact, having sovereign rights over the natural resources (such as oil and gas) means that you also possess the right to make decisions on how you’re going to exercise it. If a state wants to exploit oil and gas with a foreign country or if it wishes to enter into a joint venture with another interested party, that is its choice. And it precisely has this choice because it has sovereign rights. Hence, joint development doesn’t give up our sovereign rights but a legitimate exercise of those rights.

There’s no reason to believe that joint development with China after the arbitral ruling will no longer be “promoting peace, and security…and advancing profitable economic uses of the ocean.”

Joint development with China will promote peace because it will deepen our relationship with China through a cooperative venture. Without cooperation, there can never be peace. So, those who are against cooperation are actually against the cause of peace.

Since it will promote peace, joint development will also advance our security interests. By forging a cooperative relationship with China, we are turning it from a threat into a partner.

In constructivist international relations theory, this is the transformation of China’s identity as our enemy into our friend. This transformation is essential for a stable peace. It is a crucial stage in the process of how peace breaks out between two enemies, as Charles Kupchan outlined in his very insightful book, How Enemies Become Friends: The Sources of Stable Peace.

It’s worth remembering what Lincoln once said: “I destroy my enemies when I make them my friends.”

Of course, friends also disagree. But friends who disagree are in a much better position to resolve their differences than enemies whose disagreements often transform into a desire to thoroughly defeat each other. So, those who are against turning China into our friend simply want Beijing to remain our enemy, and thereby a perpetual threat to us. I wonder whether it’s really in our national interest to keep having an adversarial relationship with China.

And lastly, it’s quite evident that joint development would be “advancing profitable economic uses of the ocean.” We did it in Malampaya, there’s no reason why we can’t do it in the disputed areas in the South China Sea.

(Published in The Manila Times on 5 June 2018)

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