The moment of truth in the West Philippine Sea

Tough choices

The verdict is expected to come out on July 12. Most experts agree that the outcome will be largely unfavorable to China, which has desperately sought to undermine the legitimacy of the arbitral body, claimed to have rallied up to 40 (poor and dependent) countries to question the Philippines’ legal maneuver, and has sought to reach out to President Rodrigo Duterte, who has expressed his openness to engagement and finding a modus vivendi with China in the West Philippine Sea. Of course, it remains to be seen whether the Duterte administration will fully leverage the arbitration verdict or, alternatively, decide to set it aside in order to revive frayed ties with China.  

A largely favorable outcome would give the Duterte administration great leverage to extract Chinese concessions -- non-imposition of an ADIZ, mutual disengagement from Scarborough Shoal, non-harassment of Filipino fishermen and troops in contested waters -- in the West Philippine Sea in exchange for not releasing a strong statement on the need for ‘compliance’ shun using the verdict to diplomatically embarrass China. But this will surely estrange America, Japan and other traditional partners. 

Of course, there is also the possibility that the verdict will not be favorable to the Philippines, especially if the court issues an indeterminate, obfuscated verdict and shoots down Manila’s arguments in terms of their merits, particularly the one concerning China’s nine-dashed-line claims and doctrine of historical rights. 

It is possible that the court will resort to very vague legal semantics to provide China some room to save face and not antagonize the powerful country, which has threatened to withdraw from UNCLOS altogether if it confronts a prejudicial outcome. In this case, Duterte has minimal leverage on China, but he can still open up communication channels, albeit form a weaker negotiating position, by disowning the whole arbitration proceeding as the folly of his predecessor. 

There is a third, middle-way option. Both parties can, upon mutual consent, agree to the creation of a “conciliation commission” (under Article 1, Annex V of UNCLOS), which allows both parties to project their supposed respect for international law, preserve diplomatic channels, and address their overlapping claims with the guidance of a mutually-accepted panel of legal experts, who can only provide legal advise but issue no binding verdict. Then again, this option also carries its own risks and there is no guarantee that alternative UNCLOS-based mechanisms will meaningfully alter China’s behavior.  

Much will also depend on how America and other major naval powers will utilize the arbitration verdict to justify more regular, wide-ranging and multilateral Freedom of Navigation Operations (FONOPs) in the West Philippine Sea, aimed at reining in Chinese assertiveness in the area. 

What is at stake is not only regional security in Asia, which has been heavily undermined by the increased militarization of territorial disputes, but also shared access to global commons in accordance to modern international law. 

It is a clash between China’s “territorial” and “closed seas” vision of adjacent waters, on one hand, and the international community’s call for “open seas” and rule of law in international waters, on the other. –  

Richard Javad Heydarian is the author of Asia’s New Battlefield: US, China, and the Struggle for Western Pacific (Zed, London). A version of this piece was published by Brookings Institution, Washington DC.