Tony Peters [CC BY (https://creativecommons.org/licenses/by/2.0)]
Resolving PH-China maritime dispute
By Victor N. Corpus
October 31, 2019
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Sorry sir VNC, but I have to DISAGREE with practically all the major points raised in your article.
Point #1. China built artificial islands for “survival.” They are intended to prevent blockading of Malacca Strait and other minor straits, and to prevent a first strike by US submarines.
No country in its right mind today will seek to block Chinese sea trade, the world’s second biggest economy, unless there is an actual shooting war with them.
Moreover, blocking those sea lanes will not force the capitulation of China, because they have land routes to Southeast Asia, South Asia, Central Asia, Europe, the Middle East (West Asia), and all the way to Africa. That’s the old Silk Road.
It was a totally different situation when Western powers imposed an oil embargo on Japan, blocking its sea routes. For an island nation, that was about survival. It resulted in Japan seizing the oil fields in Indonesia, and led to WWII in Asia.
Anyway, these artificial islands do not necessarily give China the capability to track US submarines in the South China Sea. That’s mission impossible. Besides, US submarines may maneuver in the Sea of Japan, Yellow Sea and the Pacific Ocean, and strike Beijing from there.
Curiously, the Nine-Dash Line claims of China are limited to its smaller neighbors in Southeast Asia. China has no similar claims in the Sea of Japan (China, Japan and Russia), nor in the Yellow Sea (China and Korea).
Why? The answer is obvious. The smaller nations in Southeast Asia cannot by themselves defeat China, while the stronger nations in East Asia can by themselves face up to China. Note that S. Korea hosts US military forces.
Before we forget, China first took Mischief Reef just soon AFTER the US military forces left PH. While I too preferred the closure of foreign military bases, I thought a gradual withdrawal was more prudent, to avoid a vacuum. Alas, the PH Senate voted for abrupt withdrawal, and China’s swift reaction took everyone by surprise.
Point #2. PH should set aside issue of “sovereignty.”
To be clear, the dispute between PH and China is NOT about “sovereignty.” It’s about “sovereign rights.” The UNCLOS (United Nations Convention on the Law of the Sea) makes a clear distinction. The dispute is located in the PH EEZ and beyond. There is no encroachment in PH territorial sea or archipelagic waters.
UNCLOS as international law affirms that maritime resources beyond national jurisdiction are the “common heritage of mankind.” UNCLOS, Sixth Recital. It recognizes sovereignty only over archipelagic waters and the territorial sea (12 miles from baseline). UNCLOS, Articles 2 & 3. It mandates that the coastal State has the sovereign right to exploit and manage natural resources, living and non-living, in its EEZ (200 miles from baseline). UNCLOS, Articles 56 & 57. It provides that the coastal State has the sovereign right to construct or authorize construction of artificial islands, installations, structures in its EEZ. UNCLOS, Article 60. It states that the coastal State has the sovereign right to determine allowable catch of living resources in its EEZ. UNCLOS, Article 61.
For PH, the right and lawful bases of its claims to the EEZ is UNCLOS, not the ruling of the arbitral ruling. Why? China signed UNCLOS, without any reservation about it’s Nine-Dash Line. Moreover, arbitration is based on mutual consent. Without this pre-condition, there is no binding ruling. With the huge budget spent for this case, maybe we can consider it a legal opinion, a very expensive opinion.
Point #3. PH should adopt “win-win” approach
Is a “win-win” approach possible in the PH-China dispute? To be possible, BOTH parties must be reasonable and open to compromise. I’m convinced that’s possible for PH, but is that possible for China?
To answer this question, we need to know who we are dealing with. The people running the Chinese government and military today, are the same militant youth who were radicalized at the height of the Cold War. They were schooled in the ways of Mao Tse Tung, who dreamed of communist hegemony of the world.
Forget Confucius. China today has long buried his memory and way of thinking.
This mindset explains their rather rough ways of dealing with the outside world. Their behavior in the South China Sea says it all. From the Chinese militia in reinforced iron ships, to the heavily armed Chinese Coast Guard, and military fortifications built in their artificial islands, they use force and intimidation to assert their claims, regardless of the opposing claims of other coastal States, and very provisions of UNCLOS which they ironically signed.
Is there anyone in the Chinese government and military right now who is willing to fall back on UNCLOS as the rightful and legal basis for dealing with its smaller neighbors? I don’t know. All I know is that we should be open to such possibility. Surprises can happen, like when Deng Xiao Peng and Boris Yeltsin opened their countries to a capitalist market economy.
Just in case this happens, what would be a “win-win” approach? Here are some suggestions.
For PH, we can offer a 60-40 sharing in oil and natural gas in the EEZ, where China finances the exploration and production; we can offer joint ventures or other modes of contracting in infrastructure projects, for reasonable rates of return; and finally, we can pursue neutrality in the South China Sea, to prevent any aggressive military action taken against them from our territory.
For China, they should pull out all their armed militia ships and Coast Guard vessels from the PH EEZ and Kalayaan; they should fully respect our EEZ as protected under UNCLOS; and they should unequivocally commit to turn-over to PH all the artificial islands built inside its EEZ.
In all the above, it is the commitment to turn-over the artificial islands that would be critical to any “win-win” formula. We can be patient with the timeframe. Think Hong Kong and Macau and the treaties with Western powers for the return of these territories to the rightful State.
Point #4. PH should enlarge the pie
I have no objections to developing economic ties with nations along the old Galleon Trade route. That is something we ought to do, and which are already doing. We are a member of APEC (Asia-Pacific Economic Cooperation), that
includes China, the United States and Mexico.
However, tying up the old Silk Road with the old Galleon Trade route, is probably too much to chew right now. It’s better to leave that to the economists, traders, investors, and yes, the digital innovators, to actualize this potential.
Meanwhile, let’s focus on the issue at hand, the PH-China maritime dispute.
Alt Point. PH should pursue “quiet diplomacy” and build a “strong military”
There are those, inside and outside PH, who seek to create a howl of protest from all corners of the world, to confront Chinese aggression in the South China Sea.
Is this strategy working? Based on the behavior of the Chinese militia and Coast Guard, it is not. In fact, China accelerated the construction of artificial islands in the PH EEZ, when PH sought to bring the world against it. This was the unilateral arbitration case, that no one in the world is now willing to enforce.
Besides, if we recall the mindset of the Chinese leaders today, the radical students of yesterday schooled in the doctrines of Mao Tse Tung, the resulting global protest may have instead shut down any voice of moderation from within.
I suggest we adopt the twin policies of “quiet diplomacy” and a “strong military.”
In pursuit of “quiet diplomacy,” we may conduct bilateral negotiations (like implementation of UNCLOS and conduct of joint venture [i.e. technical and financial assistance agreement; service contract]), along with multi-lateral negotiations (like the framing of the Code of Conduct).
We may also seek to establish relations with Chinese political / military groups open to adopting UNCLOS, instead of the Nine-Dash Line, if that is at all possible.
Finally, we can communicate (in Chinese language) directly with the Chinese people, to promote respect for international law, specifically UNCLOS, instead of the Nine-Dash Line.
Admittedly, this is tough nut to crack, but not mission impossible. The Chinese youth today no longer live under the Cold War. Many of them travel abroad for education and work. When outside of China, they can see that the outside world works differently from their system. So maybe, just maybe, we can get our message across.
To complement the pursuit of “quiet diplomacy,” we also need to build a “strong military,” capable not only of defending our EEZ, but also capable of projecting power beyond the EEZ. Realistically speaking, this is the only way to convince the political and military leaders of China to take us seriously.
For those who believe that’s mission impossible, think again. Think Taiwan. It’s a small territory with a small population, that is capable of holding back, and has actually held back, the giant up north. Think Israel. It’s another small territory with a small population, but is also capable of holding up against its larger neighbors. Think UK and Japan. They are relatively small islands, but have been among the greatest and strongest nations of the world. It’s really all up to us if we want to become a David in a world dominated by Goliath.
Dindo B. Donato
dbdonato@gmail.com
