POSTSCRIPT / February 25, 2016 / Thursday


Opinion Columnist

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Better delay ruling on Phl-China row

WITH JUST four months left of the term of President Noynoy Aquino, it may be best for the United Nations arbitral court that is resolving the Philippines-China maritime dispute to delay handing down a decision till after a new president is sworn into office on June 30.

President Aquino has been forced into a tight spot, with hardly any room for thinking creatively out of a US-made box. Hopefully, his successor could be in a better position to open new windows to the north and negotiate more freely with Beijing.

For one, unlike Mr. Aquino, the new President can compare more freely the merits of Manila’s talking with Beijing directly or together with its fellow members of the Association of Southeast Asian Nations as suggested by the United States.

For another, a new president will have the benefit of a fresh outlook even to the point of considering joint activities with China in selected areas. Negotiations on such projects may eventually fail, but just talking again directly will have a positive effect on relations.

Pursuing amiable dialogue may prove difficult with Mr. Aquino still in Malacañang, especially if he would be waving a ruling from the UN’s Permanent Court of Arbitration at The Hague that is not favorable to China.

In his last statement on the subject, President Aquino hinted that he had information that the UN court was preparing such a favorable ruling and most likely hand it down while he was still in Malacañang.

No wonder China is rapidly building military and other permanent structures on disputed isles and reclaimed areas in the South China Sea, presumably to buttress its claim of prior physical presence.

Erstwhile Foreign Secretary Albert del Rosario has said that such a favorable ruling would strengthen Manila’s hand in negotiations. It was not clear if he had in mind direct talks with Beijing or with the help of a multilateral front such as that of the 10-member ASEAN.

Why not talk directly with China?

DIRECT DIALOGUE with Beijing had been proposed by some senior Filipino officials and businessmen, but President Aquino apparently has been convinced by the Americans not to go it alone, that he should use only the broader front of ASEAN and the good offices of the US.

Repeated attempts in ASEAN summits, however, have failed to convince all the members to speak with one voice in convincing China to be more flexible in its approach to regional disputes.

Only four of the 10 members –the Philippines, Malaysia, Vietnam and Brunei –have territorial issues with the giant neighbor. And then some other members are either within the sphere of influence of China or are not ready to strain relations with it.

Even if the Philippines gets a favorable decision from the UN tribunal, how will it be enforced when from the very start Beijing had served notice of its non-participation in the proceedings?

The usual answer to that is that a UN verdict will marshal world opinion against the bullying by China. This throws us back to the question of who will enforce the decision. Who will impose sanctions on China, if it comes to that?

With China, the regional kingpin, still enjoying considerable influence on its ASEAN neighbors, such outside pressure could divide, or even dissolve, the ASEAN.

As expected, the US and the European Union have warned China that it should respect a UN court ruling – when it comes — on its territorial dispute with the Philippines. Otherwise, what?

And what will President Aquino do – and how will he look — while the US and its allies sort of speak for their kid brother the Philippines in somewhat forceful language?

The better tack, we think, is not to force the issue yet, not while a lame duck President sits in Malacañang. Mr. Aquino has his own style and may be able, with US help, to hack it till Beijing agrees to some concessions, but it may be best for us to wait another four months.

Time militates against Phl interests

ON THE SAME China issue, reader Mario E. Valderrama said in an email reacting to our Feb. 18 Postscript (“US-ASEAN summit fails to isolate China”):

“The question that we Filipinos should ask ourselves is whether or not the Philippines would be in a better (or worse) position once the arbitral tribunal renders its award. Or, is the Philippines at its peril only serving US interests who, as you have intimated, has no moral ascendancy. It was not a signatory to UNCLOS. And it is known to have ignored a decision of an international tribunal, the ICJ at that.

“It is almost certain that the Philippines will win in the arbitration. Just as it is almost certain that China will ignore the arbitration and the resultant award or decision.

“While China is aiming its attacks mostly at the Philippines, it has also attacked the impartiality of the arbitral tribunal which, additionally, was accused of abusing the procedures as well as misrepresenting the law. It had already characterized the award on jurisdiction as null and void and has no binding effect.

“One of the enemies of the Philippines is time. Once the award (or decision) were rendered there would be local headlines announcing the Philippine victory. Then, after a couple of days (or weeks if the Philippines were lucky) the story would be relegated to Page 4, then Page 8, and thereafter disappear altogether.

“After which the matter would just be a matter of academic discussion, with lingering issues of arbitrator impartiality (there are issues involving the arbitrators Cot, Pawlak and Wolfrum) and jurisdiction (a State cannot be sued without its consent; there could be no arbitration without consent — the basis of UNCLOS provisions re non-arbitrable issues and the provision allowing opt-outs) being discussed together with the Philippine victory.”

(First published in the Philippine STAR of February 25, 2016)

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