Law & Society by Chester Cabalza: July 2016

Tuesday, July 12, 2016

01:56 PM July 12th, 2016

The decision of the Permanent Court of Arbitration (PCA) in The Hague which will be released Tuesday is akin to the “beginning of an end,” a Filipino security expert said.

“The case will end today but this will only be the start of an intensified power play between China and the US, the two opposing titans, eventually dwarfing the Philippines. And this will happen whoever wins in the case,” Chester Cabalza, a security expert and professor at the National Defense College of the Philippines (NDCP), told the INQUIRER on Monday afternoon.

Experts believe that Tuesday’s landmark ruling, which will be released at 5 p.m. local time, is likely to be in Manila’s favor.

“After the ruling comes out, whoever wins, it won't be about the case anymore,” Cabalza said. He said it will be about what the US and China would do next.

Cabalza said that even before the ruling, both the US and China have already stepped up their information warfare. The two superpowers have also shown their military might.

Cabalza also said that whatever the decision of the arbitral court would test the mettle of Pesident Rodrigo Duterte as the country's chief diplomat, particularly his abiliy to morph into a regional leader.

“This will be a litmus test for the President. The world will be watching us,” said Chester Cabalza.

Cabalza said indeed, Duterte and his Cabinet must study the decision of the arbitral tribunal very well, as their next steps in the dispute will have far-reaching implications.

“The decision will become key to unlocking alternative options for the new administration. It could either go for a convergence or cooperation in terms of diplomacy, economy, and defense, or it could opt for divergence,” Cabalza said.

Cabalza said that 2017 would particularly be significant, and challenging, for Duterte's skills in diplomacy.

With the Philippines chairing the Association of Southeast Asian Nations (Asean) next year, Manila will host the regional bloc’s 50th founding anniversary.

The Asean itself has grappled with the South China Sea maritime dispute, as four of its member nations have overlapping claims in the vast ocean where an estimated $5.3 million worth of trade passes.

These claimant countries are the Philippines, Vietnam, Brunei and Malaysia.

Moreover, Laos and Cambodia, while non-claimants, are strong supporters of China.

Former President Benigno III had pushed for the adoption of a binding Code of Conduct in the South China Sea to allow the smaller claimant nations to protect their interests but he stepped down from office last June 30 with Asean and China nowhere closer to achieving the document.

Cabalza pointed out that as a realist, Duterte has shown a pragmatic approach to dealing with the South China Sea row, recognizing that China is “the giant neighbor with military might and economic prowess.”

“The President has to do something to assert his leadership. This is the best time for us to morph into a regional power. While we cannot yet have military might, we are strong diplomartically and economically,” Cabalza said.

He said Duterte could build on the legacy of Aquino who turned the Philippines into the fastest growing economy in Southeast Asia and left a surplus of P1.5 trillion.

Aquino also brought the country back to the international stage, with his good governance campaign and his defiance of China’s expansionism in the South China Sea by lodging the petition before the United Nations arbitral court in 2014.

Cabalza said a sudden shift in the Philippines’ strategy in the South China Sea conundrum would make the country a “laughingstock,” especially after other claimant nations like Vietnam and Malaysia, as well as other countries, have thrown their support behind the Philippines’ case against China.

Cabalza said that nothing precludes the Duterte administration from dealing with China bilaterally, “for as long as we assert our national interests.”

He said that the administration could do “multiple diplomacy” - have a bilateral approach with China with regard to Scarborough Shoal and do multilateral talks in dealing with the Spratlys, to include the other claimant countries. RAM/rga

World awaits South China Sea verdict amid fears of further tensions

Sutirtho Patranobis, Hindustan Times, Beijing
Updated: Jul 10, 2016 22:13 IST

A rusted US-made World War 2 warship stands at The Philippines’ lonely outpost amid China’s prowling battleships and frenetic island-building activities in the South China Sea.

The Philippines deliberately grounded the BRP Sierra Madre in the late 1990s on the Second Thomas Shoal, a chain of islets around shallow waters, to mark its claims on the Spratly archipelago.

China calls the archipelago Nansha islands and claims it along with nearly the entire SCS. Since 1999, the rat-infested warship has housed elite Filipino marine forces who have watched Chinese navy and coastguard ships becoming more aggressive over the decade and in recent years, reclaiming land and building artificial islands with airstrips.

China, Philippines, Vietnam, Brunei, Malaysia and Taiwan (which China claims as a breakaway province) have claims and counter-claims over islands, shoals and reefs in the SCS.

In the East China Sea, China is locked in separate but similar island-claiming dispute with Japan. US hasn’t remained quiet. Armed with its military pact with the Philippines and better ties with Vietnam, Washington has not only repeatedly spoken on the “freedom of navigation” in the SCS but has also dispatched warships and aircraft to test how choppy the situation was in the region.

In 2015, Manila realised that a crumbling warship will not be able to hold off the world’s largest armed forces – and Beijing’s money-fueled international diplomacy -- for long. It decided to march to the UN International Tribunal on the Law of the Sea (ITLOS) under the Permanent Court of Arbitration in The Hague with maps, copies of claims and complaints.

The Permanent Court of Arbitration in The Hague is set to announce its final decision on Tuesday.

The International Crisis Group said China claims all land features in the SCS and its claims “slices into the Philippines’ claimed (maritime) Exclusive Economic Zone (EEZ). The Philippines claims about 50 land features in the Spratly island chain and the Scarborough Shoal.’’

“Manila opted to sue China, firstly on the jurisdiction of ITLOS on the maritime dispute and secondly on the legality of the historical claim of China's nine-dash line. The legal track proceeded after a reality check on the part of the Philippines that it could not level off with the strength of a giant neighbour. There is an asymmetry of military capability between China as Goliath and the Philippines as David in the maritime dispute,” Professor Chester Cabalza fromNational Defence College of the Philippines told HT over email.

Ahead of the verdict, China dismissed it, particularly as there’s a possibility that it might go against Beijing. “It is a sheer delusion to expect to force China into accepting the decision via diplomatic channels or public fanfare,” foreign ministry spokesperson Hong Lei said. “The arbitration was unilaterally initiated by the “President (Benigno S) Aquino administration and distorts the United Nations Convention on the Law of the Sea (UNCLOS), challenges the dignity of the international law and undermines the rule of law in essence,” Hong said.

Zhu Feng from the China Center for Collaborative Studies of the SCS at Nanjing University told state media that the new Duterte government needs to refrain from hyping the arbitration ruling, not rely on it as the only basis for settling the disputes, and actively improve bilateral relations. “The most expected action from the Duterte government ...would be to drop the case in the Permanent Court of Arbitration in The Hague.”

To China, that’s the only way out because as Hong put it: “China will never change its stance.”

The decision will be keenly followed. Global trade worth $5 trillion passes through the region annually, and SCS contains nearly 11 billion barrels of oil and 190 trillion cubic feet of natural gas in proved and probable reserves, as per US Energy Information Administration.

If it is in favour of China, Beijing is likely to flex its diplomatic and strategic muscles more in the region.

“The increasing militarisation in the SCS definitely affects trade, commerce, diplomacy, ecological resources and power relations among major actors in the region including the US, China, Japan, and India. Global security is also at risk in the SCS conundrum, a choke point for trade and security, among claimant countries,” Cabalza said.

If Manila emerges winner, the war of words between China and other claimants is likely to escalate with Beijing expected to dismiss the decision and increase its show of power in the region.

Cabalza expects India to be involved.

“India has been playing its part to influence Asian neighbours to resolve their maritime differences peacefully. As a naval power itself, India has the moral responsibility to push for 'freedom of navigation' as a global interest in the hotly contested Indo-Pacific region. No state has the monopoly of seas and oceans. We need maritime and international laws to prevail in attaining an equi-balance of powers in an evolving multipolar world,” he said.

‘CHexit’ PH waters urged: Netizens raise call on eve of UN ruling

IT IS TIME for China to do a #CHexit from the West Philippine Sea, social media users and activists in the Philippines said on Monday on the eve of a crucial UN tribunal ruling.

Inspired by the Brexit term coined for Britain’s vote to leave the European Union, the catchy new reference for China has quickly gained currency on Facebook, Twitter and protest placards ahead of the verdict of the Permanent Court of Arbitration in The Hague on Beijing’s claims to most of South China Sea, including Philippine territorial waters.

“We ask our friends from other countries, especially our brothers and sisters in Southeast Asia, to call for a #CHexit,” Mong Palatino said as he protested with a small group of people outside the Chinese Consulate in Manila.

"China should stop bullying its neighbors."

On social media, some of the messages were more blunt. “China, get out of Philippine territory! #CHEXIT,” wrote @emiletabiar on Twitter.

“The West Philippine Sea is not for you to own. #CHexit,” said @rmcocoba.

Other Filipinos were not amused. “‘CHexit’?!?!? Cringing on this one,” said @titobabis.

China claims nearly all of the strategically vital sea, even waters approaching the coasts of the Philippines and other Southeast Asian nations.

Challenging China claim

Manila filed a case in the arbitral tribunal in The Hague in 2013 challenging China’s claim.

China refused to participate in the hearings and vowed to ignore Tuesday's verdict.

Experts have said that the ruling is likely to be in Manila’s favor.

Department of Foreign Affairs (DFA) spokesperson, Charles Jose, said the ruling would clarify the maritime entitlements of coastal states like the Philippines based on the 1982 United Nations Convention on the Law of the Sea.

In a statement on June 29, the court said it would not rule on questions of sovereignty over the land territory and would not delimit any maritime boundary between the parties.

China has repeatedly announced it will not abide by the arbitration court, saying the Philippines failed to exhaust negotiations to settle disputes.

Former Foreign Undersecretary Lauro Baja Jr. said “China will use every excuse to justify (its moves). They (Chinese) are worried that the tribunal panel will rule against them.”

“The decibels of China’s rhetorics are increasing. If we analyze the statements coming from China, they look like people who are losing,” Baja said.

Comply with Ruling

The Philippines has called on China to respect and comply with the decision.

The DFA said it was confident that the arbitration ruling would be favorable to the Philippines, but maintained it would “respect and comply” if ever the ruling was favorable to China.

A key factor that could change the equation of the consequences of The Hague ruling is how President Duterte decides to respond.

His predecessor, Benigno Aquino III, filed the case, straining Manila’s relations with Beijing, but Duterte has shown readiness to mend frosty ties with China.

Mr. Duterte has pointed out the benefits of nurturing friendly relations with Beijing, including a Chinese offer of financing railway projects in the Philippines. His rise has given China an opening to make inroads in one of America’s closest security allies.

Last week, Mr. Duterte said his administration stood ready to talk to China if the Philippines gets a favorable ruling.

“When it’s favorable to us, let’s talk,” he said. “We are not prepared to go to war, war is a dirty word.”

It remains to be seen, however, how far Mr. Duterte can stray from Manila’s critical stance on Beijing’s territorial assertiveness, given his country’s close ties with Washington and growing nationalist sentiment against Chinese actions.

The decision of the arbitral court would test the mettle of Mr. Duterte as the country’s chief diplomat, said Chester Cabalza, a professor at National Defense College of the Philippines.

Jay Batongbacal, an expert on South China Sea issues at the University of the Philippines, said Manila should avoid revealing its cards ahead of potential negotiations with Beijing, “otherwise you lose the leverage that you have.”

Experts say the outcome of the dispute could provide ammunition for other countries involved in disputes with China.

Six states have overlapping territorial claims in the South China Sea—China, Vietnam, the Philippines, Taiwan, Malaysia and Brunei.

In addition, China’s nine-dash line overlaps waters that are part of Indonesia’s internationally recognized exclusive economic zone.

“This is a time for China not to keep pushing forward too aggressively because they could embolden Vietnam and Indonesia to file a case as well,” said Bonnie Glaser, senior adviser for Asia at the Center for Strategic and International Studies in Washington.

Regardless, the ruling is unlikely to stop China from continuing to pursue more effective control over the sea space and airspace of the South China Sea, Glaser said.

US exercises

Over the last few months, the United States has held combined exercises by two Navy aircraft carrier strike groups off the coast of the Philippines and freedom of navigation cruises near China’s man-made islands to assert its presence in the Western Pacific.

Chinese state media have accused Washington of trying to turn the South China Sea “into a powder keg” and warned it not to underestimate China’s determination to defend its territorial claims.

Chinese warships, fighter jets and submarines have held live-fire war games as part of what the People’s Liberation Army Navy called routine exercises in the week running up to the tribunal’s ruling, drills that were seen at least in part responding to the US presence.

“There’s a real game of nerves going on here with China perhaps assuming that the US is bluffing and the US hoping that China will actually not test American resolve,” said Hugh White, professor of strategic studies of Australian National University. Reports from AFP, AP, Nikko Dizon and Estrella Torres