Well Thought Out Analysis China - Philippine Conflict

[Old55]

http://www.huffingtonpost.com/richard-javad-heydarian/philippines-vs-china_b_6386216.html

 

 

Richard Javad Heydarian Become a fan 

Academic, policy advisor, and author of "How Capitalism Failed the Arab World: The Economic Roots and Precarious Future of the Middle East Uprisings"

Philippines vs. China: Law and Disorder in the South China Sea

Posted:  01/07/2015 10:24 am EST Updated:  01/07/2015 10:59 am EST

 

 

 

Generalizations about Asian cultures are often misleading, if not despicably orientalist. But I would dare to say that the Philippines is a nation of lawyers, while China is a nation of strategists and business-minded leaders. And this partly explains how the two countries approach the South China Sea disputes.

Owing to its glaring conventional military inferiority, the Philippines has embarked on an unprecedented journey: Launching a legal warfare, dubbed as "lawfare," against China. Manila hopes to leverage international law to rein in China's relentless push across disputed waters in the South China Sea. In a nation of lawyers, the local media has tirelessly sought the views and analysis of lawyers rather than military strategists and foreign affairs experts, who may have a better grasp of the realities on the ground.

In the public sphere, there is minimal discussion of the intricacies of Chinese political system, the advent of popular nationalism and its impact on foreign policy, and complex decision-making processes that determine Beijing's territorial policy. Often, panel discussions among experts boil down to the various articles of the UNCLOS and the arbitration proceedings in The Hague. The upper-echelons of the Philippines' Department of Foreign Affairs (DFA) is also dominated by legal strategists. Leading geopolitical experts are often ignored.

Astonishingly, the Philippines' Department of Defense (DOD) recently postponed the refurbishment of its facilities on the Thitu (Pag-Asa to Filipinos) island, which is among the most prized features in the South China Sea, in order to supposedly maintain Manila's "moral high ground" amid the arbitration proceedings against China. In many ways, lawfare is the name of the game in the Philippines. Discussions on pro-active diplomacy and military modernization often take the backseat.

Meanwhile, China has combined diplomatic charm-offensive, anchored by multi-billion trade and investment deals across the Asia-Pacific theatre, with ruthless military strategy, featuring massive construction projects and para-military patrols across disputed waters. So far, China has astutely used economic incentives and diplomatic acrobatics to dispel any form of unity among Southeast Asia countries on the South China Sea disputes. It remains to be seen whether China and the Association of Southeast Asian Nations (ASEAN) can even agree on the guidelines of a Code of Conduct (CoC) across disputed waters anytime soon.

The question therefore is: Does this mean that the Philippines did the right thing by resorting to compulsory arbitration against China?

A Historic Battle

The month of December has been particularly eventful. China, the U.S. and Vietnam have all expressed their position on the legal aspects of the maritime spats in the South China Sea. And China has officially boycotted the arbitration proceedings by refusing to submit a counter-memorial to the Arbitral Tribunal in The Hague before the December 15 deadline.

China reiterated its outright opposition to any form of third party arbitration vis-a-vis sovereignty disputes in the South China Sea by releasing a position paper on Dec 7, which contains three major arguments. First, Beijing contends that the special arbitral tribunal at The Hague, where the Philippines filed a memorial earlier this year, has no jurisdiction over the issue, since the UNCLOS does not accord it the mandate to address what are essentially sovereignty-related issues. Although China is a signatory to treaty, it has exercised its right (under Article 298) to absolve itself of any compulsory arbitration (under Article 287 and Annex VII) over territorial delimitation issues, among other things.

Second, China maintains that, based on supposed "historical rights," it exercises "inherent and indisputable" sovereignty over the disputed features, including those that fall well within the Philippines' 200 nautical miles Exclusive Economic Zone (EEZ).Third, Beijing asserts that the Philippines violated prior bilateral and multilateral agreements (that is, the 2002 Declaration on the Conduct of Parties in the South China Sea, known as the DoC) by initiating a compulsory arbitration procedure under UNCLOS.

Interestingly, the position paper was released a week before the Monday deadline for China to submit its formal position, or defence, to the arbitral tribunal. The Philippines, in response, maintains that it is China that has violated the DoC by unilaterally altering the status quo through expansive construction activities, widening paramilitary patrols and coercive behavior within the South-east Asian country's EEZ, specifically in the Scarborough Shoal in 2012 and, more recently, in the Second Thomas Shoal.

The Philippines also maintains that the arbitral tribunal has the mandate to interpret the parameters of China's right to opt out of compulsory arbitration procedures. For the Philippines, its legal case is perfectly consistent with the mandate of the arbitration body, since its memorial focuses on whether China's notorious "nine-dashed-line" claim is consistent with international law, and the determination of the nature of disputed features (under Article 121) --specifically, whether they can be appropriated or occupied and generate their own respective territorial waters.

Joining the Fray 

While the US does not take a position on the sovereignty claims in the South China Sea, it has indirectly supported the Philippines by supporting the resolution of the disputes in accordance with international law as well as questioning the validity of China's claims.The US State Department's position paper, released on Dec. 5, has raised issues with the "nine-dashed-line" doctrine, arguing that China's expansive claims lack precision and consistency.

After all, China has not unambiguously specified the exact coordinates of its territorial claims. It is not clear whether China claims much of the South China Sea, treating it as a virtual internal lake, or simply claims the land features in the area and their surrounding waters per se. The US, similar to most independent legal experts, also maintains that China's claim to historical rights over the South China Sea waters is not consistent with international law. China has neither exercised continuous and uncontested sovereignty over the area, nor does the South China Sea -- an artery of global trade, connecting the Pacific and Indian Oceans -- constitute a bay or any form of near-coastal water that can be appropriated based on historical rights-related claims.

In short, China's claims far exceed -- if not entirely contradict -- modern international law, specifically UNCLOS. Although the US is not a signatory to treaty, it has observed the international convention in its naval operations.

To the surprise of many observers, Vietnam joined the fray by submitting a position paper to the arbitral tribunal in The Hague last Friday, which contains three main points: It expressed its support for the Philippines' case; questioned the "nine-dashed-line" doctrine; and asked the arbitral tribunal to give due regard to Vietnam's rights and interests. Vietnam's maneuver will most likely have no significant impact on the pending legal case between the Philippines and China, but it carries significant political implications.

In recent months, Vietnam has been engaged in a sustained diplomatic effort to normalize relations with China and prevent another crisis in the disputed areas, especially in the light of the oil rig crisis in the South China Sea this year, which sparked huge protests in Vietnam and placed the two countries on the verge of armed confrontation. Vietnam's bold threat to join the Philippines' legal efforts against China carries the risk of renewed tensions in the South China Sea and of undermining tenuous, but critical, diplomatic channels between Hanoi and Beijing.

It seems, however, that Vietnam is hedging its bets by dangling the threat of joining a common legal front against China as a form of deterrence against further provocations in the future.With both the Philippines and the US explicitly questioning China's expansive claims in recent months, Vietnam perhaps felt compelled to reiterate its position on the issue and underline its right to resort to existing international legal instruments to address potentially explosive territorial disputes.

A Pyrrhic War?

Nonetheless, despite the unanimity of opinion and statements by Filipino, Vietnamese and American officials on the legal dimensions of China's claims in the South China Sea, it is far from clear whether Beijing will re-consider its policy in adjacent waters.

Ultimately, China could respond to growing international pressure by hardening its position. It can accelerate efforts at consolidating its claims on the ground, vehemently reject any unfavorable arbitration outcome as an affront to its national integrity, and impose sanctions on and/or diplomatically isolate the Philippines as a form of reprisal. After all, there are no existing compliance-enforcement mechanisms to compel China to act contrary to its position and interests.

Beyond sovereignty claims, the very credibility of international law is also at stake. As Columbia University Professor Matthew C. Waxman succintly puts it, "For the UNCLOS system -- as a body of rules and binding dispute settlement mechanisms -- prominence and credibility are at stake. A decision that the arbitral panel has jurisdiction," could put the arbitration body at the risk of "being ignored, derided and marginalized by the biggest player in the region." In the end, there may be no clear winners.

 

Edited January 9, 2015 by Old55

[Gratefuled]

I'm not going to read it all.

 

The Philippines has historically failed to strengthen its military through the years since WW2. They have always depended on the USA to be there (here) for them in case of need. They lost the support when they kicked out the miltary in Subic Bay and Clark AFB. Still the USA lends its support in training their military to deal with Muslim militant insurgents.

Instead of building on and around the islands in dispute they took for granted too much. Now, they don't know what to do about China's claim to the South China Sea and all that is within it. . Lawyers, international courts and negotiations will not do a damn bit of good. 

There is too much internal problems to cope with. I'm curious to see what will happen in Mindanao more than the South China Sea.

[robert k]

The UNCLOS system's credibility is at stake if used but if you don't dare use it, it has no credibility. It's all smoke and mirrors, power flows from the barrel of a gun.

[FlyAway]

They say the pen is mightier than the sword. I think China has the monopoly on both!

[scott h]

The Philippines has historically failed to strengthen its military through the years since WW2.

 

The above pretty much applies to the entire world with several major exceptions. The peace dividend that most countries enjoyed post WWII is fast eroding as the USA no longer needs as many forward deployed forces to maintain their military dominance and force projections.

 

One of the interesting things about the ongoing debate about the EDCA is the Filipinos (at least some editorial writers) want assurances that the USA will use military force if China starts moving in to the disputed islands, especially if somehow a few Filipino soldiers get wacked. What they fail to understand is that the USA will fight to the death (IMHO) if China invades the main islands, but the USA really doesn't give a tinkers damn about those shoals and submerged rocks. The USA at heart is really a mercantile country.  They don't care who develops and exploits the natural resources they are all squabbling about. The USA just wants to buy from who ever DOES develop it and hopefully sell the equipment to those who do.

 

China would be a fool to participate in the legal battle that the smaller countries are trying to force on them. They are playing is smart by demanding 1 on 1 arbitration. The old Sun Tzu saying, "Divide and Conquer". 2000 some odd years and it still holds true.

[Old55]

Its very unlikely China and the US will get into a shooting war. China has much more to lose than the US. 

Another thought, IMO Philippines ruled by China would be much better for the average Filipino. China is not stupid enough to invade and control Philippines there in nothing of value in it for them.

[Methersgate]

The writer seems to think that the Philippines is relying on international law because it is run by lawyers. I think the Philippines is relying on international law because trying to take on China in any other way would be absurd, and because the Philippines has a good case.

[Methersgate]

There is nothing of value in Tibet - and since the dates of Luzon and the Visayas paid tribute to the Emperor in the Ming dynasty China's claim to the whole of the Philippines is actually stronger than its claim to Tibet - in Chinese eyes.

[jon1]

There is nothing of value in Tibet - and since the dates of Luzon and the Visayas paid tribute to the Emperor in the Ming dynasty China's claim to the whole of the Philippines is actually stronger than its claim to Tibet - in Chinese eyes.

Logic like this would give the Moro claim to the Philippines from Manila south.... Iran most of the Middle East and Southern Europe... Italy all of Europe and the Mediterranean ...

 

It's funny how all of these people forget history and why wars were fought with results ending up in new countries, annexing territory or borders.

 

China has a long term strategy and will take what they want with the minimal amount of force. They already control most of what goes on in the Philippines via the chinese businessmen.

[Methersgate]

China has a long term strategy and will take what they want with the minimal amount of force. They already control most of what goes on in the Philippines via the chinese businessmen.

 

I worry when I see remarks like that. It is, inho, wrong on every level, and dangerous. 

 

First, having spent five years living in Beijing and working as I still do for a Chinese State Owned Enterprise, I can say rather firmly that China does NOT have a "long term strategy" in its foreign relations. These days, the Party is trying to control the feelings of extreme nationalism that are common amongst the younger generation - it is not uncommon to hear people say that they want to nuke Japan, etc. The Party cannot back down over the South China Sea, much as many people in it recognise that China's position is unsound in international law and based on a KMT misreading of Ming dynasty documents, because to do so would seem to be showing weakness, and that would produce violent rioting. Think back to what happened in 1919...

http://en.wikipedia.org/wiki/May_Fourth_Movement

 

The nine dash line was drawn by Zhou Enlai who is THE hero - the good guy who stood up to Mao and Khrushchev.

 

So the PRC, far from having a planned strategy, is caught by the demands of internal politics. That this makes China wonderfully unpopular in the region is not something the Party likes, but it has to live with it.

 

Next, China's claims - unreasonable as they are - are ALL based on the former payment of tribute, which was an acknowledgement of the suzerainty of the Emperor. This is because Chinese politicians see they duty as "re-establishing" the former greatness of China. What other nations think is irrelevant, because Chinese people think very little about outer barbarians. The history they are taught in school is the history of China. 

 

Why did the datus of Luzon and the Visayas pay tribute to the Emperor? (One died on the journey and his family were allowed to erect a tomb to him and keep people in China to tend it in the Confucian manner) - because they wanted to trade with China and in order to trade you had to first pay tribute. They wanted silk, porcelain, tea and the other goodies, and they paid with what China wanted - silver, but also beche de mer, etc. 

 

Lastly, please don't EVER accuse Chinese-Filipinos of working for the People's Republic. Not only are they more likely to identify with Taiwan*, since their families usually originated in Xiamen, but in doing so you stoke up racial hatred against the Chinese-Filipinos amongst the Malay-Filipinos, and please remember what happened in Indonesia in the Sixties. 

 

*The President speaks fluent Hokkien, and addressed the Chinese Chamber of Commerce in that language, pulling their legs about their failure to pay their proper share of taxes