19sep01-PCA arbitral ruling consigned to limbo

POSTSCRIPT / September 1, 2019 / Sunday

PCA arbitral ruling consigned to limbo

By FEDERICO D. PASCUAL JR.

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THE PHILIPPINES and China effectively consigned to limbo on Thursday the UNCLOS-based arbitral ruling in 2016 on their maritime disputes, and moved to explore instead a wider Code of Conduct for resolving conflicts in the South China Sea.

Presidents Rodrigo Duterte and Xi Jinping stuck to their opposing public positions on the Permanent Court of Arbitration’s award – rendered on the basis of the United Nations Convention on the Law of the Sea (UNCLOS) — invalidating China’s claim and occupation of some Philippine maritime areas.

There were no indications during and after their less than an hour dialogue in Beijing that the stalemate would be resolved during the incumbency of the two leaders. That looked like a welcome development for them as the PCA ruling has been getting in their way.

Despite the apparent dropping of the arbitral ruling, Duterte was able to put on record for the consumption of the home crowd that, as he had promised, he finally raised it before Xi, never mind that his friend and benefactor promptly rejected it as expected.

It will take another president to revive the arbitral ruling and use it as leverage in dealing with China. When that time comes, we hope the legal position of the Philippines has not been fatally damaged or compromised by Duterte.

Presidential spokesman Salvador Panelo told the media in Beijing Friday that Duterte will no longer raise the arbitral ruling in his future meetings with Xi.

After effectively pushing aside the PCA decision, Duterte and Xi agreed to work out instead a multilateral Code of Conduct for resolving their disputes and those of neighboring states over SCS features and resources.

The Association of Southeast Asian Nations (ASEAN) has been discussing such a Code since 2002, but the 10-member group of disparate interests has failed to find consensus. China having been added as a major discussant, it has become less likely that a Code could be adopted during Duterte’s remaining three years in office.

The PCA ruling has been put aside without a replacement Code of Conduct mechanism, so now Manila and Beijing will have to look for other ways to manage bilateral issues “on the basis of mutual trust and good faith,” as Panelo put it.

The status quo has been thrown wide open, by design or otherwise. Despite their contrary public posture on the PCA ruling, Duterte and Xi are now in a better position to collaborate more closely in pursuing whatever plans they have.

Panelo said: “President Duterte and President Xi agreed that while their variant positions will have to remain, their differences need not derail nor diminish the amity between the two countries… The contentious issue is not the sum total of the Philippines-Chinese relations.”

 No joint statement as reference

IT IS unfortunate that no joint communique was issued after the Duterte-Xi talks. We the public will have to depend on scanty media reports quoting Panelo’s briefings based on his recollection and appreciation of events and statements.

It does not help any that there is a paucity of information from the China side. Nobody outside the meeting room at the Diaoyutai State Guest House seems to know what exactly Xi said and how he said it. That makes his position and intentions shrouded, yet flexible.

The talks as recounted by Panelo hewed to the preview given by Philippine Ambassador to China Chito Sta. Romana. That gave us the impression that Manila and Beijing knew in advance what they were to agree or to disagree on.

Duterte’s seeming deferential posture toward Xi drew a comment from political analyst Jose P. Cortez: “We cannot help noticing Duterte’s acquiescence to the People’s Liberation Army strategy of San Zhong shanfa (‘Three Warfares’) which seems to be employed by Xi in refusing to accept the PCA ruling.

“If anything, Duterte’s continuing silence on the psy-ops fully utilized by China vis-à-vis the Philippines strengthens our belief that the President has already surrendered whatever resistance to Chinese incursions he may have harbored in the past few months.

“Add the Chinese embassy’s media manipulation and we may have a clearer view of the hole Duterte has put us in. Sadly, we all seem to be dazzled by all the largesse — financial, cultural, diplomatic — from Xi, forgetting in the process that this is part of the strategy to weaken the country’s resolve to have the ruling enforced.”

Having rejected the PCA ruling, can China still raise it when it is time to discuss joint projects whose statuses have been defined even tangentially by the tribunal at The Hague? Will the ruling’s having been invoked by the projected partner, the Philippines, have any bearing?

One such project is the joint development of an area in the Recto (Reed) Bank. Duterte has said that joint exploration for gas and oil at Recto, which is within the Philippines’ exclusive economic zone, is allowed under UNCLOS and the Constitution.

He further expressed agreement with a 60-40-percent sharing, as proposed by China, of the fruits of the joint enterprise.

Will China’s conceding 60-percent share to its Filipino counterpart be regarded as an admission that the Philippines has the sovereign rights over Recto Bank and other disputed areas similarly situated within the Philippines’ 200-nautical mile EEZ?

The same question might also be raised in connection with the incident in June when the Filipino fishing boat Gem-Ver was rammed, sunk and abandoned by a Chinese trawler near Recto Bank. If the crew and the boat owner file suit, the question of jurisdiction might be raised.

 

(First published in the Philippine STAR of September 1, 2019. Follow the author on Twitter as @FDPascual.

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