^[1]

For ASEAN, the Philippines has become the canary in the mine in testing how much more poisonous the atmosphere with China can become in the South China Sea. By taking China before the bar of international law (and international opinion), Manila has got well out ahead of the rest of ASEAN.

The man on point is always at greatest danger of being shot, and the Philippines is feeling both exposed and righteous. See Stuart McMillan’s description of the Philippines ^[2] as both bold and alone in taking China to an international tribunal over its nine-dash line on a map claiming sovereignty over vast areas of the South China Sea.

The sense of ASEAN crisis I referred to in my previous post ^[3] has much to do with the uncertainty about how hard China will keep pushing. To see how excruciating this is for the Philippines, come and inspect the body language and the actual language of a Shangri-La session on ‘New Trends in Asia Pacific Security’.

The first two speakers on stage are the deputy chief of the General Staff of the People’s Liberation Army, Lieutenant General, Qi Jianguo, and the Philippine’s Defence Secretary, Voltaire Gazmin. Putting these two together for the same session proves that the International Institute for Strategic Studies might be taking on some Asian colours, but it still has a British sense of humour that can shade from dry to droll.

Gazmin’s speech ^[4] was a classic bit of opaque ASEAN-speak. Manila doesn’t always do ASEAN opaque, but times are tough. The Defence Secretary managed to do a speech on regional security trends without naming either the US or China. And he answered a question on the South China Sea without actually mentioning the South China Sea. This is masterful in an ASEAN sort of way. His call for Asia ‘to go beyond confidence building measures’ could’ve been lifted from any ASEAN Ministers’ speech over the two decades since the formation of the ASEAN Regional Forum. The taking-China-to-court bit in the speech that didn’t actually mention China read like this:

Sensitive issues placed in the backburner in the past have re-emerged to take centre stage. This dispels notions that these issues have become irrelevant in the 21st century with the emergence of non-traditional security challenges. Given this, while sensitive issues will not be resolved overnight, it would be timely for states to cooperate in finding means to achieve long-lasting regional stability through mechanisms provided by international law, with the hope of settling these issues with a sense of finality.

In his final scripted words, Gazmin copperplated the boilerplate: ‘to reaffirm our commitment to sustain dialogue on relevant security issues as well as enhance practical cooperation with our Asia-Pacific neighbours and other partners in pursuit of regional and global peace and stability’. If you detect a certain fraught or even pleading undertone to this, you have a good ear.

The Defence Secretary finally had to utter the ‘C’ word when his Chinese co-panelist did a bit of direct prodding during questions. General Qi said there was no need for the Philippines to seek international arbitration on its territorial differences with China. The General said Beijing had ‘smooth’ communication with Manila and thus China’s traditional insistence on bilateral negotiations should be the proper mode for resolving any dispute between the two countries. Here’s General Qi responding to those questions ^[5]:

As you know, the Chinese government has sovereign power over the East China Sea and South China Sea. It is our stand to exert sovereign power in these areas. Therefore, it is right and above reproach for Chinese warships to patrol in the territory of China. This is the answer to the first question. The second question is about the issue of the Philippines submitting the Scarborough Shoal issues to the International Court of Justice for arbitration. China has been maintaining a consistent stand in South China Sea relations, which is sustained by sufficient history and legal basis. However, China has been trying to resolve the issue through bilateral negotiation. We have made sincere efforts to maintain the stability of the South China Sea and promote regional cooperation. We have signed a Declaration on Code of Conduct in the South China Sea with the ASEAN countries, in which there is an important provision stating that the relevant disputes shall be resolved by the countries involved through negotiation. China and the Philippines are signatory countries of this Declaration, and both of us have promised to earnestly and comprehensively implement this Declaration. Besides, we have a smooth dialogue channel with the Philippines for resolving the Scarborough Shoal dispute. It is not necessary to submit it to the International Court of Justice. We can solve this issue through equal dialogue and negotiation. Only in this way, in my opinion, can we seek for a more harmonious and cooperative method to solve our disputes.

After that volley, Gazmin managed at last to say the word ‘China’—twice. The Philippines wanted to validate its maritime entitlements in accordance with international law, so China could be directed to respect those rights. And Manila hoped its use of this ‘friendly and peaceful mechanism’ would not provoke trade retaliation from China; although Gazmin didn’t use the word ‘retaliation’, preferring the slightly less direct expression ‘no adverse effects on our trade relations’. Here are the words of a Defence Secretary ^[5] who knows his country is out on point duty without much cover, and might just suffer a lot of pain if it has the temerity to win in court:

We hope that the arbiter will issue a clarification in accordance with international law that will direct China to respect our sovereign right and jurisdiction over our exclusive zone, continental shelf and zone, and this is from undertaking unlawful acts that violate our territorial rights. The arbitration is a friendly and peaceful mechanism; we hope that there will be no adverse effects on our trade relations with China.

‘Adverse effects’, indeed!

The Singapore-based scholar Dr Ian Storey ^[6] weighs the balance between the China effect and international law this way:

If the Tribunal decides that it does have jurisdiction, a final ruling could take several years to reach. Any ruling handed down by the Tribunal will be binding but not enforceable. Should the Tribunal rule that China’s claims are incompatible with the UN Convention on Law of the Sea, it will represent a victory for the Philippines and would put the onus on China to clarify its maritime claims. As seems likely, however, the PRC will simply ignore the ruling.

The China effect is weighing ever-heavier. The Philippines is well placed to win at law, yet suffer grievously because of China’s raw power.

Graeme Dobell is the ASPI journalist fellow. Image courtesy of Flickr user Secretary of Defense ^[7].