The Philippines’ lawfare strategy in the South China Sea disputes is inching closer to a moment of truth. In coming weeks, an arbitral tribunal, formed under the aegis of the United Nations Convention on the Law of the Sea (UNCLOS), is set to pass a final judgment on the ongoing maritime spats between China and the Philippines. For the first time, a team of impartial, top-caliber legal experts will officially weigh on the validity of China’s expansive claims and growing footprint across arguably the world’s most important waterway. What is at stake is preventing China from fulfilling a Seldenian Closed Sea ( Mare clausum ) in favor of preserving a Grotian Free Sea ( Mare Liberum ) at the heart of the Western Pacific.
Yet it is ultimately up to the Philippines’ incoming president, Rodrigo Duterte, to decide on what to do with a likely favorable arbitration outcome. And this introduces some element of uncertainty into the picture. Unlike his outgoing predecessor, Benigno Aquino, Duterte— a self-described “socialist” with historical ties to Philippine communists—doesn’t seem to be very keen on confronting China and has, quite legitimately, expressed doubts vis-à-vis Washington’s commitment to its Southeast Asian ally. (In fact, during the recently concluded Shangri-La Dialogue, which brought together the world’s leading defense ministers and experts, I asked Admiral Harry Harris, commander of United States Pacific Command, about the precise extent of American treaty obligations to the Philippines in an event of contingency in the South China Sea. I wasn’t able to receive an unequivocal answer beyond well-rehearsed semantics.)
Astonishingly, Duterte has even expressed reservations concerning the wisdom of ongoing efforts to bolster the Philippines’ minimum deterrence capability. “Fighter jets are good only for ceremonial flybys. I’m not in favor of building up external defense, I will not got to war with China,” Duterte recently told reporters. Though known as often mercurial, he was actually consistent with his earlier stance during the campaign trail, when he dismissed the purchase of much-needed jet fighters as a “waste of money.” For the incoming president, what matters is internal security operation, especially in light of the worrying resurgence of extremist groups, tied to Islamic State, in the southern island of Mindanao.
Duterte, meanwhile, has expressed growing interest in reviving long-frayed bilateral investment relations with China, even though this may come at the expense of a compromise on sovereignty disputes in the South China Sea. During his meeting with Chinese ambassador Zhao Jian, among the first dignitaries who met the president-elect shortly after the elections, Duterte and the Chinese envoy apparently went down to business right off the bat, discussing prospects for massive Chinese infrastructure investments in the Philippines. Obviously delighted by the cordial exchanges, with large-scale Chinese investments hanging in the balance, Duterte went so far as to praise Chinese President Xi Jinping as a “great” leader .
Duterte has also expressed doubts as to the utility of the Philippines’ arbitration case against China, which has boycotted the proceedings and questioned the jurisdiction of the arbitral tribunal to oversee the South China Sea disputes. Encouraged by convivial exchanges with the incoming Philippine leadership, China recently reiterated its call on the Philippines to entirely drop the arbitration case as a sign of goodwill. After all, the verdict is expected to be released a week after Duterte officially assumes power, so technically the case could still be dropped. And as Columbia University professor Matthew C. Waxman succinctly explains, much is also at stake for the whole international law regime, which may explain the curious timing of the expected release of the arbitration judgment.
The Trial of the Century
“For the UNCLOS system—as a body of rules and binding dispute settlement mechanisms—prominence and credibility are at stake,” Waxman explains. The arbitration body faces the risk of “being ignored, derided and marginalized by the biggest player in the region.”
Last October , the arbitral tribunal (formed under Article 287, Annex VII of UNCLOS) decided that it would indeed exercise jurisdiction on almost half of the items in the Philippines’ memorial (official complaint), with the remaining items subject to simultaneous examination in terms of both jurisdiction and merit. In a ten-page summary , the judges argued that the Philippine-initiated arbitration case “was properly constituted” and that the “act of initiating this arbitration did not constitute an abuse of process [as asserted by China].”
The judges reiterated that “China’s non-appearance in these proceedings does not deprive the Tribunal of jurisdiction,” and “international law does not require a State to continue negotiations when it concludes that the possibility of a negotiated solution has been exhausted.” The Tribunal, which has no mandate to decide on questions of sovereignty, decided that it can nonetheless exercise jurisdiction on determination of the nature of disputed features (see Art. 121 on “regime of islands”), particularly the Mischief, Gaven, McKennan, Hughes, Johnson, Cuarteron and Fiery Cross Reefs, as well as Scarborough Shoal.