POSTSCRIPT / July 12, 2016 / Tuesday

By FEDERICO D. PASCUAL JR.

Opinion Columnist

Share This
Twitter

Arbitration ruling creates dilemma

THE PHILIPPINES faces the dilemma of what to do after the release today of the ruling on an arbitration case it filed in 2013 against China on their conflicting claims over some isles, reefs and shoals in surrounding seas.

The decision of the Permanent Court of Arbitration (PCA) at The Hague is expected to be largely in favor of the Philippines. The problem is how to enforce it on China, which from the very start has refused to recognize the tribunal’s jurisdiction and served notice that it will ignore any verdict.

A Philippine “victory” could be just psychological, mostly in its gathering expressions of support by its international friends adhering to the rule of law and the peaceful resolution of disputes.

Its treaty ally the United States cannot be expected to butt in sheriff-like to enforce the ruling. Unlike the Philippines and China, the US has not even bothered to ratify the United Nations Convention on the Law of the Sea (UNCLOS) under which the case was filed.

Fortunately for President Rodrigo Duterte, the accident of time gives him an opportunity to navigate with China (if it is willing) toward a mutually beneficial and amicable solution to a problem that could trigger a war nobody wants.

Beijing has asked Manila to set aside the arbitral decision and sit down for bilateral talks. But being the complainant, the Philippines would put itself in an awkward position backing down after it has won its case.

Since the President does not agree with some policies of his predecessor who filed the case, he may be able to rationalize his not insisting, at first blush, on the immediate enforcement of the ruling while Malacañang studies its implications and the options available.

In the normal course, the favorable PCA ruling should be a leverage in dealing with China. Still, that will require consummate skill on the part of Mr. Duterte – plus the dash of goodwill that he may have established in the past two months.

If China wants to improve its standing with the new administration, we think it should give the President more space to wiggle out of the dilemma.

With Mr. Duterte’s willingness to hold direct discussions, China should also honor the Philippine reservation (if any) that the PCA ruling stands even while the two parties talk of other things.

Departing from his predecessor’s heeding White House advice to discuss maritime issues with China only through a multilateral front (e.g. the Association of Southeast Asian Nations), President Duterte has announced his intention to go bilateral.

At one point he even disclosed he would adopt an independent foreign policy, which in Manila jargon means independent of American promptings.

Rody neither cold nor confrontational

THE PRESIDENT said in his first Cabinet meeting June 30 that he will neither “taunt (China) nor flaunt (the arbitration ruling)” and adjust to the developing situation “progressively.” He apparently does not want to be either cold or confrontational to China.

This bona fides approach makes sense. While we may change policies and ideologies, we can never alter the geographical fact that China is our next-door neighbor. Might as well make friends with it.

Taking that neighborly direction, Mr. Duterte has been talking with China ambassador Zhao Jianhuon trade and investments, including railroad systems and joint mineral exploration. One can imagine the goodwill thereby generated.

If Mr. Duterte is able to warm up relations enough, who knows, Beijing might forget momentarily its demand that the Philippines set aside the arbitral ruling and agree to discuss it some other day.

There could be a common effort to skirt around the issue of sovereignty – which to both parties is non-negotiable in the first place – and focus more on trade and investment, and people-to-people relations.

On the other hand, time does not seem to be on the side of Uncle Sam. American timing has been slowed down by the long wait for a new president and a new Congress to be installed yet after the Nov. 8 elections.

Even its ambassador in Manila, Philip S. Goldberg, is on the way out — soon to be replaced by Sung Kim, an Asian-American who is now Special Representative for North Korea Policy and Deputy Assistant Secretary for Korea and Japan.

Goldberg was jolted last May when then candidate Duterte told the US and the Australian ambassadors to shut up and dared their countries to cut ties with the Philippines once he is elected president. The envoys had criticized his remarks about the rape-slaying of a missionary during a jailbreak.

Key issues in Phl case against China

FOR THOSE who came in just now, CNN has summarized the key points of the Philippine case. Check the items below against the ruling to see if Manila swept all the points:

“What’s the Philippines case? There are three key points:

“1. The Philippines wants the court to decide whether certain features in the sea are islands, reefs, low tide elevations or submerged banks.

“It might sound like a minor point, but under the United Nations Convention on the Las of the Sea each delivers different rights over the surrounding waters. For example, a recognized island delivers an Exclusive Economic Zone of 200 nautical miles, giving the responsible country complete control over all enclosed resources, including fish, oil and gas.

“Importantly, artificial islands like those China has been building are not counted.

“2. The Philippines wants the court to rule on exactly what territorial claims in the South China Sea their country is owed under UNCLOS. These may contradict and potentially legally invalidate China’s claims.

“3. The Philippines wants the court to determine if China has infringed on its territorial rights through China’s construction and fishing activities in the sea.”

(First published in the Philippine STAR of July 12, 2016)

Share your thoughts.

Your email address will not be published.