[OPINION] Beyond Legalism: A Post-Arbitral Foreign Policy for the Philippines

[OPINION] Beyond Legalism: A Post-Arbitral Foreign Policy for the Philippines

Editor’s note: The July 12 arbitral ruling in favor of the Philippines has incited questions about the Philippines' future in relation to the disputed seas. In this article, Robin Michael Garcia proposes a few foreign policy perspectives that summarize his opinion on the options available to the Philippines; all of which do not necessarily reflect Kami.com.ph‘s views.

National discourse on the issue of the disputes between China and the Philippines has remained stuck in the legal dimension of the issue perhaps so, because of the current moment of national celebration, as we welcome the victory from the favorable decision of the Permanent Court of Arbitration (PCA). This celebration, while welcome, should not go on until the wee hours of the morning, because as we traverse the coming hours and meet the sunrise, one thing will be crystal clear: China will not get out of our backyard.

Indeed, as the Harvard political scientist, Graham Allison has noted, recent international political history can be instructive about the post-arbitral activities of China: none of the great powers in recent have ever obeyed the ruling of the Permanent Court of Arbitration (PCA) in their maritime disputes with smaller countries. Ironically, not even the greatest advocate of the “rule of law” in the region and in the world, the United States, has respected the ruling of the PCA when it disregarded the ruling in favor of Nicaragua. What is possibly the most ironic thing in all of these is that the US has not even ratified the United Nations Convention on the Law of the Sea (UNCLOS).

Ironically, not even the greatest advocate of the “rule of law” in the region and in the world, the United States, has respected the ruling of the PCA when it disregarded the ruling in favor of Nicaragua. What is possibly the most ironic thing in all of these is that the US has not even ratified the United Nations Convention on the Law of the Sea (UNCLOS).

[OPINION] Beyond Legalism: A Post-Arbitral Foreign Policy for the Philippines

The Hague rules in favor of the Philippines against China's claim of historical rights over the disputed sea.

This undeniably means that the disputes are as much political as it is legal. The problem with legal assessments, however, is that it ignores the issue of politics and thus our national discourse should now go beyond this parochial dimension and talk about the issue that has always been central but side-tracked by profuse legalism: power.

To be sure, the moral victory has some effect and we can expect the stronger states to re-examine its actions. But while this is so, this effect does barely profit less powerful countries their desired end: to raise the reputational costs so much so that the big powers will rush in and resolve the disputes in their favor. It is not hard to imagine how this may even work against them by provoking stronger states to retaliate thus making matters worse.

The problem is that not all states want to “belong”. China’s authoritarian resilience and all the non-democratic practices it brings (human rights violations, for example) suggest that it is the friend that is not very social. Moreover, evidence suggests that for international liberal norms to be imbibed by states, it must first have a strong affinity to pre-existing domestic institutions and cultures.

READ ALSO: Japan PM Abe: China should respect international law

The hope of many in using the legal means is ultimately to resolve the disputes. But given this political reality of the inability of international legal recourse to settle it, what should the discourse be focused on now? The legal discourse thus far has only provided for what we cannot do.

For example, when Senior Associate Justice Antonio Carpio keeps repeating that we cannot enter into a joint development scheme with China because it violates the principles of exclusivity in our national patrimony and it limits the national discourse to legal limitations of some policy options, but this does not constructively address a more fundamental issue at hand: what should we do now given that our legal recourse is barely effective?

I propose a couple of perspectives:

The first solution is the solution that has always been on the negotiation table: the joint exploration of the Scarborough Shoal while shelving the dispute on sovereignty. Sovereignty is an emotional issue particularly because of the assumption of the indivisibility of control which has always been attached to any proposed action by any state envisioned in the disputed waters. The principle of indivisibility has thus pushed states to go to war. However, it might be possible albeit controversially, to disentangle the issue of sovereignty and the notion of ownership from the policy of joint development.

In other words, mute the moral and principled discussion of sovereignty but carry on with the economic and practical issues. But even here, the two countries can go further. They can agree to develop the disputed waters into a jointly administered ecological and biological exploration station that allows scientists from both countries and beyond to explore life beneath the South China Sea and an eco-friendly tourism site that allows people from all over the world to experience the beauty of the South China Sea.

[OPINION] Beyond Legalism: A Post-Arbitral Foreign Policy for the Philippines

Circled in the map are some of the territories fought over by the Philippines and China.

(photo credit: businessinsider.com)

READ ALSO: Anders Corr: PH should sue China for $177-B

The second solution, a bit more radical but also more path-creating, is for the Philippines and China to mutually recognize each other’s sovereignty claim. The goal here is to still make the Scarborough Shoal a jointly-administered ecological and biological exploration station and an eco-friendly tourism site but differs by putting the issue of sovereignty front and center. However, the conception of sovereignty here is path-breaking because it challenges the issue of indivisibility: two states can own one territory. By so doing, the two countries can set a historical precedent for countries with territorial disputes to resolve their disputes in a novel and amicable way.

Finally, the ASEAN should serve as a venue for dialogue for the reason that it had always held some of the norms that China holds dearly at least in rhetoric: consensual, cooperative dialogue and non-interventionism. If we use its language, there may be a bigger chance that we change the way China interacts with the rest of its neighbors and improve its receptivity to international liberal norms.

READ ALSO: LOOK! Defiant PH raises territorial row vs China at ASEM

[OPINION] Beyond Legalism: A Post-Arbitral Foreign Policy for the Philippines

 

Robin Michael Garcia is a Ph.D. Candidate in International Politics at the School of International Relations and Public Affairs of Fudan University in Shanghai, China. He lectures on politics and international relations at both the University of the Philippines and De La Salle University.

Disclaimer: The views and opinions expressed in this article are solely those of the author and do not necessarily represent those of Kami.com.ph, its editors, or other contributors.

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