Written by Alex Calvo.
The 29 October decision by the international arbitration tribunal on jurisdiction and admissibility of the UNCLOS arbitration case launched by the Philippines against China has rightly been interpreted as a victory for Manila. The Court unanimously decided that it had jurisdiction concerning seven of its fifteen claims, with a decision on a further seven to be reached simultaneously with their merits, dismissing China’s view that the case involved deciding on maritime borders and that the Philippines had agreed not to pursue compulsory arbitration under UNCLOS. As stressed by the court, this does not imply a favourable decision on the case, with a final ruling not expected until next year. In the meantime, the two parties directly involved, and the many countries (both South China Sea claimants and other interested powers) with a stake in the matter keep jockeying for position. International law does not exist in a vacuum, and it is thus necessary to follow not only the arbitration proceedings themselves but other developments on the ground. In the case of Manila, she has taken two significant steps in the jurisdiction ruling’s wake: further weapons talks with Tokyo, and a fisheries agreement with Taipei. This has also coincided with the arrival of the first two of 12 Korean-built FA-50 combat planes and the signing of an strategic partnership agreement with Vietnam.
The Philippines are already the recipient of an assistance program designed to beef up her Coastguard, with the provision of boats, training, and communication equipment. However, the end to Tokyo’s ban on weapons sales and the latest reinterpretation of Article 9 of the Japanese Constitution with legislation on “collective self-defence”, have opened the door to much tigher relations. It may be unclear whether Tokyo will finally launch FON (Freedom of Navigation) patrols in the South China Sea, with conflicting reports on the matter, but there are many other ways in which Japan may seek to influence the situation in this vital stretch of sea. The specific forms which Japanese policy could take may yet to have been decided, but what is clear in Tokyo is that the country’s national security is at stake, and that it is in Japan’s national interest to see the Philippines develop stronger capabilities in the maritime domain. It thus came as no surprise to see President Aquino and Prime Minister Abe meet on the sidelines of the APEC summit held in the Philippines in November. Abe said “The President and I … shared deep concerns over unilateral actions to change the status quo such as the large-scale land reclamation and building of outpost in the South China Sea. At the same time, we confirmed the importance of partnership in the global community based on the rule of law to protect open, free and peaceful seas”. Concerning rearmament, the Japanese leader said “We welcomed the agreement in principle on transfer of defense equipment and agreed to work together for the early signing of agreement and realization of cooperation in defense equipment. There was a request from President Aquino regarding the provision of large patrol vessels to the Philippine Coast Guard and Japan would like to consider the specifics of the matter”. The Philippines are working to go beyond the coastguard cutters included in the existing agreements, seeking also larger, more capable vessels, given the deployment by China of a growing number of assets, from coastguard and other state agency vessels to trawlers and maritime militia, in the South China Sea.
In addition to upgrading her maritime and naval capabilities, Manila has been engaged in fisheries talks with Taiwan. The talks were launched in the wake of the 9 May 2013 fatal shooting of a Taiwanese fisherman by the Philippine Coast Guard at Balintang Channel. In addition to seeking to limit the scope for incidents and disruption to this important industry, the talks have at least two additional purposes. First of all, to present the Philippines as a reasonable country open to negotiations and agreements concerning disputed waters, implicitly stressing the contrast with China. Second, to give the impression that it is Beijing, not Manila, which is isolated, this also being the reason behind moves to upgrade relations with Vietnam and Malaya. Taiwan in turn is also interested in showing that President Ma’s “East China Sea Peace Initiative” can provide a template for actual action on the ground. Thus, the Philippines invested a considerable deal of political capital and efforts in the talks with Taiwan, which finally bore fruit with the signing of an agreement on 5 November. Wrongly described by some sources as a “treaty”, given the absence of formal diplomatic relations, it is nevertheless very important. According to TECO (Taipei Economic and Cultural Office), Taiwan’s semi-official embassy in Manila, it is expected to “effectively reduce fisheries disputes in the two countries’ overlapping exclusive economic zones and protect the rights and interests of Taiwan fishermen operating legally”. Its text lays down two rules concerning law enforcement: one-hour advance notification, and a three-days release period. Before one party can take action against a fishing vessel with the other’s flag, it must provide one-hour advance notice to its coast guard and fisheries agencies and to its semi-official embassy. Furthermore, if this results in the arrest of the vessel, she must be released within three days after a bond (or other security or payment) of a reasonable amount has been posted. TECO stressed that “The agreement upholds the spirit and principles of President Ma Ying-jeou’s South China Sea Peace Initiative, which calls for shelving disputes, pursuing peace and reciprocity, and promoting joint exploration and development of resources”. After the signing of the agreement, the maiden meeting of the “Technical Working Group” took place that same day, 5 November.
In line with moves towards the Philippines, on 17 November Manila signed an “strategic partnership” agreement with Vietnam. In their meeting, Philippine President Benigno Aquino and his Vietnamese counterpart Truong Tan Sang discussed the South China Sea, including the international arbitration case, where Vietnam is not a party but made a submission to the court. Sang said “Mr President (Aquino) and I shared our concerns over the recent developments in the East Sea, or the South China Sea, affecting trust, peace, security and stability in the region”, adding that the agreement marked a “new era for cooperation” between the two nations.
We can thus conclude that, while Manila is attaching great importance to the ongoing international arbitration, she is well aware that the law does not exist in a vacuum, but rather is part of a triumvirate also comprising diplomacy and military might.
Alex Calvo, a guest professor at Nagoya University (Japan), focuses on security and defence policy, international law, and military history, in the Indian-Pacific Ocean Region. He tweets at Alex__Calvo and his work can be found here. Image credit: CC by US Navy/Flickr.