EAGLE EYES – Tony La Viña

19 July 2016, The Standard

Slam dunk, soft landing in West Philippine Sea

The arbitral award handed down last week by a tribunal convened under
the Permanent Court of Arbitration on the South China/West Philippine Sea
(SC/WPS) dispute presented in his first week of office an immediate and
consequential test for President Rodrigo Robredo. In my view, the new Philippine
President passed the initial test. So far there is calm in the seas in dispute and
more importantly calm in the streets of Beijing and Manila. T

Slam dunks are spectacular but if the aerial artist lands badly, it would not
be remembered. Indeed, in the West Philippine Sea, the Philippines won a legal
slam dunk; thankfully, the soft landing so far preserves that win.

But the next steps are critical.

Regardless of any possible policy changes still unfolding from the Aquino-
Duterte transition, the court’s decision is legally binding on both the Philippines
and China. And although international law comes with few direct enforcement
mechanisms, the world and our country is not entirely without remedies. Justice
Antonio Carpio, who has brilliantly provided much of our thinking around this
dispute, has written in the Wall Street Journal that, in some ways, the arbitral
decision is self-enforcing. Now that the legal status of the SC/WPS maritime
zones are clear - high seas for a significant part, exclusive economic zones for
many of the countries with little overlap given the finding that the region has more
rocks than islands - maritime powers can act accordingly whether is it refusing to
abide by no-fly zones imposed by China or using sea passages allowed in high
seas as well as exclusive economic zone.

For the Philippines, the constitutional and legal implications are clear. The
areas of the SC/WPS that are our exclusive economic zone are reserved solely
for Filipinos. Any joint development agreement must bear that in mind. In
addition, even if a legal framing can be found that is constitutionally compliant,
such development must be approached with caution. As Professor Diane
Desierto, one of the world’s and the country top international legal expert and
scholar, has observed in a Facebook post: “Make no mistake about
"joint development agreements" for petroleum and natural
gas resources in the South China Sea. Those who are most
vocal in proposing it for the Philippines, know exactly that
multibillion dollars are at stake - and the big question is
whether those billions actually go to real Philippine
development that will be sustainable and accountable.
Entering into these agreements also makes the Philippines
vulnerable to disputes over contract or treaty claims of
foreign investors. There is a Philippines-China bilateral
investment treaty with compulsory investor-State
arbitration. The Philippines should be careful that it does not
end up being taken to multibillion dollar arbitration by
patriotic Chinese investors.”

How then can we move forward?

China boycotted the legal proceedings from the beginning and has long
said that it will not abide by the court’s decision. We should not expect Beijing to
simply decamp from the artificial islands it has just built, so it will fall to concerned
states to reinforce the legitimacy of this decision.

What is important is that we have succeeded in defending our legal rights

over the disputed islands. We should continue our diplomatic initiatives, securing
support our ASEAN partners, United States, Japan, India, the European Union,
and other countries, which are neutral on the region’s sovereignty disputes, is
firmly supportive of the legal process and engaging in its own public diplomacy
effort bolstering the decision. China of course has been engaged in coalition
building efforts of its own, but with less success it seems.

Although the Philippines was optimistic in winning the arbitration, few

expected such a total victory, winning all our major points. Legally, it is the best
scenario that could be imagined. But such a complete victory also poses it own
challenge, Now that the ruling has arrived, as one observer pointed out, the
Philippines and our new president has been thrown a geopolitical curveball.

Foreign Affairs Secretary Perfecto Yasay’s has been criticized for his
somber demeanor when he spoke before the press after the arbitral award was
released. His call for “all those concerned to exercise restraint and sobriety” was
interpreted as a sign of weakness, worse some even described Secretary Yasay
was saddened by our victory. This is hogwash in my view.
 Secretary Yasay’s statement and his tone was in fact exactly the right thing
to do. Unpopular at first, his words and actions were the most reasonable course
of action to take. Indeed, as I immediately said when the decision came out, the
next step for us is to do nothing. In fact, we should hope that all those concerned
should, at least for the next several weeks, do nothing.

As Inquirer’s John Nery observed, “One thing Filipinos will watch out for is
the rhetoric that will come out of Beijing. It is good that calls for war are being
censored. It is not unexpected that Chinese officials will repeat the standard line
about “ancient rights” and “indisputable sovereignty.” It is only logical to expect
the new Chinese facilities, built on reclaimed land in the Spratlys, to remain in
place, and for Beijing to defend their presence and purpose as civilian in nature.
It is entirely likely that China will once again raise the possibility of imposing an
air defense identification zone, or take the United States to task for conducting
naval patrols in or near disputed areas . . . But as long as the language we’ve
heard before is the same language we will hear in the next several weeks, the
Philippines will see this as encouraging. It is the nearest equivalent to China
doing nothing.”

In the meantime, we should prepare for re-engaging with China on both

bilateral and multilateral fronts. This time, we have the arbitral tribunal’s decision as
leverage. Hopefully, former President Fidel V. Ramos will lend his gravitas to this
important mission. He is the right man for the job as he knows the meaning of win-win
solutions. For the moment, we should forget about joint development or commercial
agreements with China on the resources of the West Philippine Sea. Lets start instead
with something so doable and also very urgent – bilateral cooperation on the protection
of the marine environment. This is non-controversial, within the Constitution, and can
rebuild trust. As I will write in the next couple of columns, the arbitral tribunal ruled that
China has not done well by the marine environment. Perhaps, they can rectify this by
cooperating with us to rehabilitate the fisheries, reefs and other ecosystems affected by
their actions. Among others, the Philippines, China and other countries can take up the
suggestion of Justice Tony Carpio (which was also suggested earlier by environmental
lawyer Tony Oposa) to make the whole area a marine peace park for a hundred years.

Yes, from a slam dunk to a soft landing, the West Philippine Sea conflict can be
resolved in a win-win manner.

Facebook Page: Dean Tony La Viña Twitter: tonylavs