MANILA, Philippines – "What if we win?"
It was an unlikely question from the only Southeast Asian country that brought China to court over the West Philippine Sea (South China Sea). What was the problem with winning?
Well, the problem was not winning itself, but enforcing a favorable ruling.
Former Solicitor General Francis Jardeleza said even the Philippines' "highest policymakers" asked themselves after filing a case against China: "What if we win? Will we be able to enforce it?"
This is the biggest question facing the Philippines after Tuesday, July 12, when it won a historic case that invalidated China’s expansive claim over the West Philippine Sea.
Enforcement is a problem because Beijing refuses to heed this ruling, and there is no international police to implement this. China, too, continues to block Filipinos from fishing in the disputed Panatag Shoal (Scarborough Shoal).
What is clear, then, is that the Philippines' victory is only one phase in settling a decades-long dispute over the West Philippine Sea.
Like a basketball game
Former Solicitor General Florin Hilbay, who succeeded Jardeleza, compared the dispute to a basketball game. "This is a game that will take some time," Hilbay said in a news conference Wednesday, July 13.
He said that everything that happened before the arbitration case, which was filed in January 2013, can be compared to "the first quarter of a basketball game."
"The second quarter,” Hilbay said, "is the arbitration proceedings."
The arbitration was "the game of the lawyers," he said. "'We're now moving toward the game of the diplomats."
Hilbay said that if the lawyers’ job was "to deliver a legal advantage" for the Philippines, "the game of the diplomats will be very different" as it will likely happen behind closed doors.
Hilbay said: "The end goal is for the Philippines to be able to effectively assert its maritime entitlements in the South China Sea/West Philippine Sea. That is the ultimate objective."
How will the Philippine government do this?
Kenney: 'Very good solution'
The days immediately after the ruling give us a peek into how the Philippines will play "the game of the diplomats" under President Rodrigo Duterte.
Minutes after the ruling was released on Tuesday, Foreign Secretary Perfecto Yasay Jr delivered what critics called a bland statement on the Philippines' victory.
At the same time, Duterte said he wants to send former president Fidel V. Ramos to China for negotations.
These initial moves remain consistent with Duterte’s stance not to "flaunt" Manila’s victory against Beijing, as the government tries to mend their ties.
Commenting on Duterte’s approach, Counselor Kristie Kenney of the US State Department told Rappler on Monday, July 11, "The thought that you would not flaunt it, as the President said, that you would issue restraint…seems like a very good solution."
"I wouldn't use President Duterte’s words. Those are his words," Kenney said, referring to Duterte's use of the word "flaunt," but "it's good that in issuing any statement or comment on the ruling, it be a statement that's restrained, that again leads to dialogue, that doesn't raise tensions."
Duterte approach 'mature, wise'
Asked why this is a good solution, Kenney explained on Monday: "The goal here is a diplomatic solution to a very complicated problem. The goal is not to use violence, to be provocative."
"And so to accept the ruling in a very peaceful way that opens the door for dialogue among the claimant states is, I think, the goal."
Rappler also asked Paul Reichler, Philippines' lead counsel in its case against China, to comment on Duterte’s decision not to "flaunt" the Hague ruling.
Reichler said, "I think that’s a wise way of putting it. I’m impressed."
"There is this distinction between defending and advocating for rights, legal rights, that an extremely well respected arbitral tribunal has declared you have, and on the other hand, flaunting a victory or defeat for China," the US-based lawyer explained.
Reichler said: "I applaud President Duterte for his mature and wise approach. In the end, everything has to be resolved peacefully and diplomatically, and so it doesn’t make sense to begin the process of seeking to implement the award by antagonizing or treating as an adversary any of your neighbors."
Commenting on Yasay’s statement on the ruling, Hilbay said, "It is the statement of a diplomat." He said this will allow him to use his own style "when the real work starts, which is today."
'Did we win a moral victory?'
Hilbay added that how diplomats will take advantage of the decision "will depend on their goal, their message, and their ultimate strategy."
Hilbay said the "game of the diplomats" is crucial because enforcement in international law is "very different." For one, he said, "you don't have a single sheriff who can enforce the decision."
Hilbay said, "This will require the support of all interested parties and hopefully ultimately the recognition by China of the arbitral award." (READ: How to enforce Hague ruling? PH lead counsel explains)
"There's such a thing as reputational harm or reputational cost," he added. "Given this final award, there will be a lot of pressure on China to calculate the risks and benefits of not following the award. I'm sure our neighboring states will also do their own calculation."
Jardeleza, who is now a Supreme Court associate justice, added on Wednesday, "We cannot enforce, but then we have the force of world public opinion."
"Also, did we win a moral victory? No…from the start, we had been hoping for a legal victory. We have a legal victory, not a moral victory," he said.
Philippines, China in stalemate
Jardeleza explained: "We may not be able to enforce it, just like in the case of a sum of money, but nevertheless we have a very clear legal victory, which will become the bridge, hopefully, to arm our negotiators and our diplomats in their coming talks with the other side."
The Philippines and China, however, face a stalemate.
To make things more complicated, the Philippines is seeking the good graces of China even as it "welcomes" its historic victory against Beijing. Duterte, for example, is considering China’s offer to build a railway from Manila to Clark in two years.
What the Philippines and China have now is like a new "case," in a much more flexible courtroom.
Let the game of the diplomats begin. – Rappler.com
Paterno R. Esmaquel II is a senior reporter leading Rappler’s coverage of religion and foreign affairs. He finished MA Journalism in Ateneo and MSc Asian Studies (Religions in Plural Societies) at RSIS, Singapore. For story ideas or feedback, email him at firstname.lastname@example.org.