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Suing China

Publication Date : 24-01-2013

 

The Department of Foreign Affairs (DFA) announced the other day that the Philippines has submitted its territorial dispute with China for resolution by an international arbitration tribunal as provided for under the 1982 United Nations Convention on the Law of the Sea (Unclos).

The DFA is surely aware that China is not obliged to submit to such arbitration. Indeed, China has previously declared—on Aug 25, 2006—that its government “does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention”.

This may seem at first blush nothing more than the brash recalcitrance of a big power. But, the Unclos allows such caveats or reservations to be expressed at the time of signing, or ratification, or even after.

There’s a useful website that shows the current status of these declarations: http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm

The Philippines itself has made its own declaration at the moment of signing and ratification, which manifests its understanding of the terms of the Convention.

Of the eight statements that constitute the Philippine declaration, all explicitly reiterate the primacy of the country’s sovereignty—except for one. Paragraph 3 states: “Such signing shall not diminish or in any manner affect the rights and obligations of the contracting parties under the Mutual Defence Treaty between the Philippines and the United States of America of 30 August 1951 and its related interpretative instruments; nor those under any other pertinent bilateral or multilateral treaty or agreement to which the Philippines is a party.”

This manifestation sticks out like a sore thumb in an international covenant. Anyone who closely reads it will wonder what we mean by the sovereignty we so vigorously assert in the rest of the statement.

What is the point of invoking a bilateral defence treaty between the Philippines and the United States in a document that purports to lay the basic principles and rules prescribing the rights and responsibilities of nations in their use of the world’s oceans?

All that this strange paragraph is saying is that nothing in the Unclos shall prevent the Philippines from invoking, if necessary, the US-RP Mutual Defence Treaty—a colonial treaty that precisely spits at our claims to being a sovereign nation. Do we have to tell the world that while we may be weak, we have America to help us fight our battles?

I do not believe it is a good thing to flash the American card every time we find ourselves having to stand up to China’s bullying. It diminishes our stature and credibility in the Asean community, let alone in the community of nations. If we deride Cambodia as a lackey of China, can we take pride in being treated as a lackey of the United States? But that is how China sees us.

At the height of the standoff at Scarbourough Shoal, instead of telling us directly that they are agreeing to our call for a simultaneous pullout of all vessels from the shoal, the Chinese thought it fit to communicate their agreement only when it was brought up at a meeting between US Assistant Secretary of State Kurt Campbell and China’s Vice Minister for Foreign Affairs Fu Ying in Washington. Indeed, we learned of the Chinese message only later—after it was communicated to our government by US Ambassador Harry Thomas.

Such diplomatic manoeuvres may not mean much to Filipinos who think that we have no choice anyway but to hide behind America’s security shield in dealing with China. But in Asia particularly, diplomatic behaviour signifies a lot. It tells others how we think of ourselves, how much value we attach to our independence, and how much autonomy we have when we enter into relations with other nations.

We should not allow ourselves to be drawn and used as a pawn in a geopolitical rivalry, in the mistaken belief that we can use the United States to further our own claims in the West Philippine Sea. America will do what is best for its own national interests, but these interests will not always coincide with our own. For reasons entirely its own, America has failed to ratify the Unclos, despite the fact that it actively participated in its drafting.

I would have thought that, prior to bringing our dispute with China to a UN arbitration tribunal, we could have fully exhausted the avenues offered by the Asean framework. This is our basic community in the region. We helped nurture this alliance into what it is today. Is there still room for manoeuvre within an Asean whose members appear to have become timid and wary about doing anything that might displease China? I think there is.

We can continue to pursue the pragmatic goals behind the promulgation in 2002 of the Asean “Declaration on the Conduct of Parties in the South China Sea.” This document rests on two propositions: one, that the quest for a comprehensive settlement of the various competing claims in the area should avoid the use of force or its threat; and two, that the absence of a settlement should not stand in the way of cooperative ventures like: protecting the marine environment, ensuring safety of navigation and communication at sea, search and rescue operations, scientific research, and combating piracy and the use of the oceans for the illicit traffic in arms and drugs.

In a fascinating paper he delivered last October at a conference in Laos, former University of the Philippines president Francisco Nemenzo argued that Asean cannot afford to be disunited at this point if its member-countries wish to be effective in dealing with both the United States and China. I cannot agree more.

 

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