Magnetic Rocks, Part II: Assessing the Philippines' Legal Strategy in the South China Sea

May 20, 2014 Topic: Military Strategy Region: Philippines

Magnetic Rocks, Part II: Assessing the Philippines' Legal Strategy in the South China Sea

A modern-day David vs. Goliath: the Philippines vs. China

Editors Note: This is the second in a two-part series assessing the legal strategies of the South China Sea claimants in their broader strategic context. Here, the author analyzes the strategy of the Philippines. For part one, please click here.

 

The Philippines must often feel as if it is engaged on the wrong side of a David-and-Goliath dispute in the South China Sea. In almost every respect, Manila finds itself at a disadvantage: it lacks the capability to protect its claims against sustained intrusions; its claims rest on shaky legal grounds; its friends and allies are unwilling to go to war to defend those claims; and its opponents are committed, cunning, and powerful.

Yet despite the odds, Manila has fared remarkably well, in large part because it has been able to capitalize on its strengths and conceal its weaknesses. After realizing that a dispute on China’s terms was no dispute at all, the Philippines turned the tables on Beijing with a pro-active strategy designed to exact concessions from its larger neighbor by forcing China to choose between specific maritime claims and its long-term interest in regional stability.

This strategy has evolved over time as China has responded in kind. At first, Manila relied heavily on efforts to change the situation on the ground and to internationalize the conflict. However, China was able to counteract the Philippines at each step with its greater maritime presence and international political capital.

As a result, the Philippines has recently turned to a third element of its pro-active strategy: international law. Despite the weakness of its own claims, the Philippines has been able to mastermind a comprehensive campaign against Beijing grounded in international law. This assault has centered around an arbitration case filed against China in January 2013, which has successfully—at least so far—backed the larger nation into a corner. But while this arbitration will be a critical waypoint for Manila along the road to consolidating control over its claims, it also raises unsettling questions about the unstable dynamic that has gripped the region.

Losing Hand

In many respects, the Philippines has been dealt a losing hand in the South China Sea dispute. Like China, the Philippines must contend with a serious strategic dilemma. On the one hand, it wants to consolidate control over its South China Sea claims. This ambition is buoyed by the fervent nationalism of its citizens, who loudly object either to any concessions on the Philippines’s part or to encroachment on the part of other contestants. On the other hand, though, Manila must also nourish its network of relationships in the region, including its ties with its fellow ASEAN members, with China, and with the United States. It’s no easy task for the Philippines to maintain amicable relations with its chief South China Sea rivals, many of whom possess far stronger legal claims than it does. It’s even harder when nurturing any one relationship can often appear to come at the expense of the others, given the zero-sum competition between many of the Philippines’s neighbors.

The dilemma is particularly thorny with respect to the Sino-Philippine relationship. China is the Philippine's chief competitor for control of the South China Sea. But China is also one of Manila’s primary trade partners, even if the Philippines depends relatively less on it than do other states in the neighborhood. In the past, Beijing has not been afraid to leverage its economic heft to express its displeasure with Philippine policy: during the Scarborough Shoal standoff, for example, China curbed imports of Philippine bananas and obstructed tourist visits.

More importantly, the Philippine navy pales in comparison to the People’s Liberation Army Navy. In a conflict between the two forces, the Philippines would face an uphill battle at best; a more honest assessment would describe the situation as “hopeless.” A similar disparity exists between the two nations’ civilian maritime enforcement capabilities. And when tensions flare, some in China have not been afraid to stress the Philippine military’s comparative weakness. Also during the Scarborough Shoal standoff, Chinese General Luo Yuan noted slyly that “considering the relative military strengths of China and the Philippines, the Filipino people can judge for themselves the wisdom or otherwise of their government’s decision to take this stand against China.”

Even the Philippines’s friends are not always dependable. Although Manila is a longstanding treaty ally of the United States, relations between the two countries have sometimes been rocky. Of course, Manila has ramped up its cooperation with Washington in recent years as the threat posed by China has grown more ominous. But despite its best efforts, the Philippines has been unable to persuade the United States to clarify the exact scope of their mutual defense treaty, and particularly how much it applies to disputed territory in the South China Sea. The Philippines also worries that even if Washington is theoretically committed to its Asian pivot, it may not be able to deliver because of budgetary woes at home.

In short, the Philippines finds itself in a rather disadvantageous strategic situation. It is engaged in a territorial dispute against a set of adversaries who possess relatively stronger legal claims. Its main rival sits atop the world’s second largest economy and far superior naval assets, and has demonstrated dedication and shrewdness in prosecuting its claims. Set against this formidable set of challenges, the Philippines has only a few uncertain—if strengthening—relationships with external powers like the United States and Japan.

Now or Never: The Philippines’s Strategic Response

But despite the hand it has been dealt, Manila has been playing the game remarkably well. First and foremost, the Philippines has identified a clear objective: a quick resolution to the dispute on the best possible terms. Unlike China, the Philippines has no interest in dragging out the situation. Its primary rival grows relatively stronger every year, and the island nation may not be able to count on its friends and allies—especially the United States—in the long run.

The Philippines can also afford to resolve the conflict in the short-term because its strategic dilemma is less pressing than China’s in many respects. True, Manila is also caught between the twin desiderata of regional peace and territorial sovereignty. But unlike China, the Philippines does not depend nearly as much on regional interdependence for its long-term growth. Even if a regional conflagration were to erupt, the Philippines would still be able to trade with its largest commercial partners, the United States and Japan. And while Manila might feel the pinch of any interruption in trade between China and the Philippines, it would not be a mortal blow for the island nation’s economy. In fact, the Philippines already displayed its willingness to soldier on in the face of (admittedly limited) Chinese economic retaliation during the Scarborough Shoal standoff.

This willingness to incur short-term costs has allowed the Philippines to exploit China’s strategic dilemma. Manila recognizes that Beijing is highly committed to its territorial and maritime claims, but Manila also knows that China is constrained by its dependence on globalization and globalization’s prerequisite, relative regional stability. China may want to control the South China Sea, but it also has larger global ambitions that require it to continue growing and modernizing. The Philippine strategy is simple: set China’s two objectives—the South China Sea and long-term growth—against each other, and then bank on the fact that China cares more about the latter than the former.

In practice, Manila has implemented this strategy by adopting a proactive and even a confrontational posture in the dispute. The Philippines hopes to exact concessions by escalating the conflict in a way that China is unwilling to match for fear of imperiling its long-term growth. In effect, David is deliberately goading Goliath in the hope that the better angels of Goliath’s nature—or at least his strategic interests—will stay his hand in the dispute.

The strategy also aims to turn the Philippines’s greatest weakness—the remarkable disparity in power between the two contenders—into a source of strength. The Philippines calculates that any counter-assertiveness by China will redound to Manila’s benefit internationally because China will appear to be the aggressive party that is picking on its weaker neighbor. After all, in the eyes of the international community, why would the Philippines start a fight that it was destined to lose? In effect, Manila can escalate safely because it is weak; Beijing will always look like the bully when it responds.

The Philippines has carried out this pro-active strategy using three distinctive tactics: (1) changing the facts on the ground; (2) internationalizing the dispute; and (3) wielding international law.

At first, the Philippines relied heavily on a combination of resource exploitation and arms purchases in order to alter the on-the-ground strategic reality. In terms of resource exploitation, Manila has encouraged its fishermen to venture further offshore, often sailing deep into the heart of contested areas. It has also prospected and drilled in these areas for oil and gas. In terms of arms purchases, the Philippines has augmented its naval and coast guard capabilities by turning to benefactors such as the United States and Japan. It has also demonstrated that it is not afraid to use these forces to try to tinker with China’s calculus, including by detaining or expelling hundreds of Chinese fishermen caught in disputed areas. Just recently, Manila arrested eleven Chinese fishermen in disputed waters near the Spratly Islands; it intends to prosecute nine of them for illegally poaching sea turtles.

Additionally, the Philippines has repeatedly tried to internationalize the dispute by inviting in external actors to constrain China and thereby increase the Philippines’s own leverage. For example, the Philippines has broadened and deepened its relationship with Beijing’s other rivals such as Japan, South Korea, and Australia. Manila has also tried to use the Sea’s hydrocarbons to entice countries like Russia and India into the region. And in its efforts to enlist outside allies, Manila has not forgotten its relationship with the United States – the two countries recently agreed to a new security accord that grants American military forces access to local bases for maritime and humanitarian operations. Finally, closer to home, the Philippines has been working to increase ties between the members of ASEAN in order to form a united front against Beijing.

China Pushes Back

But the Philippines has had only mixed success in executing the first two elements of its proactive strategy, namely, changing the facts on the ground and internationalizing the dispute. On the positive side of the ledger, the Philippines has successfully provoked China while crafting a regional narrative that portrays Beijing as the bully and the Philippines as a weak but feisty victim. In part due to China’s pushback against the Philippines, regional public opinion has swung sharply against China. The international community has become more and more involved in the dispute even as the Philippines and other claimants increasingly band together for protection against China.

But although Beijing is losing control of the public narrative, China has nevertheless effectively maintained the upper hand over much of the South China Sea itself. In crude terms, the Philippines’s strategy depends on forcing China to choose between losing the South China Sea and losing the region as a whole. Yet China has thus far evaded this stark choice by relying on a strategy that responds in a tit-for-tat fashion against Philippine provocations while deterring further escalation. Beijing’s minatory strategy has not won it many friends in the region, but it has not been sufficiently egregious to staunch—much less slow—regional trade. So while tensions continue to mount, China has not yet been pushed to the brink, as the Philippine strategy requires.

Worse, the Philippine strategy has come at significant cost. China has managed to score some spectacular successes, best exemplified by Scarborough Shoal. Although Manila intended to intimidate China out of the Shoal, the strategy backfired – Beijing effectively punted the Philippines out, and has since consolidated control over the area.

In part, the Philippines has faltered in its campaign because it has been fighting on the wrong battlefields. As part of the first two elements of its strategy, Manila tried (1) to change the on-the-ground reality in the South China Sea and (2) to internationalize the dispute. Yet in both arenas, China holds a comparative advantage. As described previously, China has maritime enforcement assets that easily dwarf those owned by the Philippines. Against this greater physical strength, the Philippines has relatively little leverage to change material realities. Similarly, China has greater weight than the Philippines in the international community thanks to its extensive trade relationships. States generally listen when Beijing warns them that any involvement in the South China Sea dispute could be costly for their investments in China. So even if some actors are becoming increasingly wary of China’s behavior, none has yet mustered the courage to put its money where its mouth is and to decrease its trade with the world’s second largest economy. Indeed, several international oil companies have ultimately decided against investing in the South China Sea after hearing that it could adversely affect their Chinese projects.

 

For its strategy to succeed, then, the Philippines needs to throw down the gauntlet in an arena where it has a comparative advantage over China and where China has difficulty leveraging its relative strength. For that reason, Manila has increasingly prioritized the third element of its strategy: international law.

The Mouse That Roared: A New Emphasis on International Law

All states are (generally) considered equal in the eyes of the law. International law can therefore be used to negate China’s material advantages in strength and reduce it to the same level as the Philippines. Accordingly, since 2011 Manila has relied more and more on international law as a weapon for prosecuting its claims. Of course, all of the South China Sea claimants frequently justify their claims through the language of international law. But the Philippines has done more than merely defend its claims through international law; it has also applied international law to contest China’s own claims in a variety of different arenas.

The opening shot was fired on Apr. 5, 2011. That day, Manila filed a note verbale with the United Nations protesting China’s nine-dash line as “hav[ing] no basis under international law.” The note was peculiarly timed; it responded to a previous pair of notes filed by China almost two years earlier, on May 7, 2009. When China had originally filed its notes, it had elicited a flurry of response notes from other nations over the following few months. But the Philippines stayed silent for two years before it decided to resurrect the issue unilaterally by filing its own note. Manila was interested in more than diplomatic formality; it chose to puncture that long stretch of inactivity in order to put Beijing on the defensive.

Since then, the Philippines has ramped up its international law offensive. Most significantly, Manila decided to take its case to a neutral arbiter in the wake of the Scarborough Shoal fiasco. On January 22, 2013, Manila took the bold step of launching an arbitration process under the auspices of the U.N. Convention on the Law of the Sea (UNCLOS). In its case, the Philippines is primarily making three claims: first, that China’s nine-dash line is unlawful under the Convention; second, that many maritime features claimed by China do not generate a 200-nautical mile exclusive economic zone (EEZ) as Beijing asserts; and third, that China has repeatedly violated the Philippine’s rights under the Convention.

Unsurprisingly, Beijing has rejected the Philippines’s claims and refused to participate in the case. Yet according to Article 9 of Annex VII to the UNCLOS, “[a]bsence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.” While it is uncertain what effect China’s absence will have on the tribunal’s jurisdiction, the arbitration seems to be going the Philippines’s way for now. Despite Beijing’s nonparticipation, the five members of the tribunal were chosen in April 2013. They issued their first procedural order on August 27, setting a deadline for the Philippines to submit its memorial. On March 30, 2014, the Philippines did so.

In some respects, the Philippines’s focus on international law seems strange given the weakness of its own territorial claims. But the Philippines has been able to mask the weakness of its own claims by going on the offensive. It has set the terms of its UNCLOS case, choosing to focus less on its own tenuous legal position and more on the flaws in China’s expansive claims. In particular, the Philippines has a weak claim to the territory of the Spratly Islands when compared to China. But its case is focused not on who owns the islands—indeed, the tribunal does not have jurisdiction to resolve that question—but rather on maritime legal issues such as which insular features of the South China Sea are entitled to an EEZ under UNCLOS. And because China has refused to participate in the arbitration, Beijing has forfeited an opportunity to stress its own perspective and draw attention to Manila’s vulnerabilities.

Despite its formal abstention from the proceedings, though, China has nevertheless been frantically trying to stop the case. In the year and a half since the Philippines filed it, Beijing has tried alternatively to cajole and menace Manila into ending the arbitration process. The Philippines has rebuffed these attempts, sometimes publicly (to Beijing’s considerable embarrassment). China has also tried to turn the other members of ASEAN against the island nation, but has been met with polite refusals from that quarter as well.

At some level, China’s reaction seems overwrought. Even if the tribunal reaches the merits and decides against Beijing, so what? But China values being perceived as a rule-bound international actor because that perception has tangible benefits. As China grows more powerful, it must avoid appearing as a rogue revanchist state out to destabilize the extant world order. As it is, China’s neighbors are already skittish about trading with—and thereby strengthening—the large nation. Beijing cannot afford to give them any more cause for concern.

Therefore, the Philippine case has coercive potential precisely because it has become a barometer of China’s trajectory and even its identity. When pressured, will Beijing respect international norms? Or will it accede to the Thucydidian logic that “the strong do what they can and the weak suffer what they must”?

Manila has found a weak spot, and it intends to exploit China’s discomfort for at least a little while longer. And if its arbitration gambit succeeds, then the Philippines will likely continue to emphasize international law in its pro-active strategy.

Conclusion: A Sobering Note

While China dominated South China Sea negotiations for many years thanks to its shrewd strategy and material strength, it has increasingly lost control as smaller claimants like the Philippines have adopted a more proactive and even confrontational posture. So far, Beijing has struggled to handle these small-scale provocations in a sustainable way: although it has been able to use its economic and political clout to push back against them, it has done so at the cost of its regional reputation.

At the same time, however, the smaller claimants cannot declare victory yet either. For the most part, the Philippine strategy has been ineffective at coaxing concessions from China. Admittedly, Manila has hit upon a new—and potentially more potent—approach in recent years through its turn to international law. Indeed, China has shown an unheard of willingness to compromise over the Philippine arbitration (although Manila has thus far refused to negotiate, presumably in the expectation that it can get a better deal in the future). But as the case progresses, China will become increasingly desperate to halt the arbitration by any means necessary. The longer that Manila holds out, the more tempted China will be to overcome the Philippines’s stubbornness through strength rather than settlement. Beijing may also decide to gamble on the outcome of the arbitration, especially because the tribunal could easily find that it lacks jurisdiction to decide the case. So while Manila has gained the tactical edge, it remains to be seen whether the country can keep it.

Regardless of how the arbitration turns out, though, this dynamic bodes ill for the region’s stability, as the events of the past several of weeks unfortunately illustrate. Neither side wants the dispute to descend into bloodshed, but neither party is willing to concede. Worse, the strategies of both parties depend on the other’s reluctance to engage in open conflict. China assumes that the Philippines would be unwilling to provoke a naval engagement that it would almost surely lose, while Manila hopes that Beijing would not choose to inflame the region with a brazen display of its military strength.

In some sense, both parties are probably correct. But neither state has full control over how events develop on the ground, particularly as both China and the Philippines often allow local forces to operate on a long leash. While this tactic can demonstrate commitment and credibility, it also risks igniting a powder keg amidst a dispute characterized by the sparks of nationalism and miscalculation. And as history has demonstrated, only one spark is necessary for the keg to blow.

Sean Mirski is a second-year student at Harvard Law School, where he is Supreme Court Chair of the Harvard Law Review. He is also the co-editor of Crux of Asia: China, India and the Emerging Global Order.

Image: Wikimedia Commons