Jamil Maidan Flores: How China Can Bounce Back After Tribunal's Harsh Rebuke
How badly did the ruling of the Permanent Court of Arbitration hit China? I think it is fair to deem it the equivalent of a five-count boxing knockdown.
For months China braced itself for an adverse decision on most of the 15 points that the Philippines brought before the tribunal; it waged a worldwide propaganda campaign to bring nations to its side of the controversy. It maintained that the court had no jurisdiction over the case, that the arbitration was nothing but a United States-inspired malicious attack against China — and therefore its rulings were null and void.
Twice Chinese Foreign Minister Wang Yi tried to foist on Association of Southeast Asian Nations (Asean) countries a "unilateral consensus" to favor this view. In April, it tried to rope in Brunei Darussalam, Cambodia and Laos to a four-nation consensus on the South China Sea, but clarifications by these three Asean countries soon exposed the deception; no such consensus was actually reached.
Last month he sought to railroad a "10-point consensus" at the Asean-China ministerial meeting in Kunming, Yunnan province. The 10 Asean countries, in a rare display of unity, repudiated the "consensus." They also agreed to issue a statement expressing concern at developments in the South China Sea, which was all the more damaging to China because it was released to the press and then mysteriously retracted.
Rushing to China's rescue, Cambodian Prime Minister Hun Sen delivered a speech fiercely denying that his government had been pressured to block the issuance of the Asean statement in Kunming. He stressed that Cambodia was firmly on the side of China and he denounced the international arbitration as a political plot. A few days ago he announced that China was allotting the equivalent of a whopping $600 million in grant aid to Cambodia between 2016 and 2018. There may be truth to the rumor that the grant has nothing to do with the South China Sea, but I do not really know.
Meanwhile, China's foreign office claimed that its global public relations campaign had won the support of 60 countries. The Asia Maritime Transparency Initiative (AMTI) quickly disputed that claim, citing that only eight confirmed their support for China, while the rest were either silent or had issued vague statements. On the other hand, more than 20 countries urged that all concerned respect whatever decision the court would hand down.
The result of these developments is a spectacle of China desperately bobbing and weaving as it saw the punch — the decision of the international tribunal — coming. China saw the punch coming but did not expect it to hit like a truck. For the tribunal was expected to rule in favor of the Philippines only on some key issues. Instead, the tribunal unanimously ruled for the Philippines on all 15 points litigated. This surprised even the lawyers on the Philippine side.
Observers say China has only itself to blame: if China had participated in the litigation, China could have named one of the judges; that could have prevented the ruling from being so unanimous. By participating, China might have even won a few of the minor points.
Actually from the very beginning China probably realized that it did not have any tenable legal arguments to bring to the arbitration. So it decided to create a new battleground in the geopolitical field where it could win through a bandwagon campaign to draw support from as many nations as possible for its position on the South China Sea. But even in this field China did not win.
On the whole, China seems to be rather absent-minded in its foreign policy planning. In 1996 it ratified the United Nations Convention on the Law of the Sea (Unclos), not realizing that the convention's provisions on exclusive economic zones superseded whatever sovereignty claims it may have had by virtue of its so-called nine-dash line.
Recently, China waded into the controversy between Japan and Taiwan on the entitlements of the far-flung, Japan-held Okinotori atoll in the Pacific Ocean. China asserted that Okinotori, being a mere atoll, could not generate an exclusive economic zone. Ironically this statement supports the ruling of the Permanent Court of Arbitration on the entitlements of the features in the South China Sea.
Still, the stinging court rebuke is not the end of the world for China. It can fulminate for a while and cry for the vengeance of heaven to descend upon the heads of the judges, but after that it has to move on. After all, nobody is in a hurry to enforce an unenforceable ruling. And there is no way it can be pressed to undo the changes it has wrought on the South China Sea status quo.
It is time to make good its offer of bilateral negotiations with the Philippines, which the latter has accepted. In accepting the offer, the Philippines might well have been guided by the words of the late US President Kennedy: "Let us not negotiate out of fear. But let us not fear to negotiate."
Philippine President Duterte has designated a predecessor, former President Fidel V. Ramos, as his negotiator. There could not have been a better choice: Ramos is arguably the best president the country ever had. His pragmatism, wisdom and patriotism are beyond question: he will not sell the country's birthright for a pot of stew.
Here is one scenario: The Philippines will go into the negotiations without bringing the tribunal's ruling to the table, but also without in any way abandoning its sovereignty rights as defined by the law of the sea. What its mutual defense treaty ally, the United States, thinks is irrelevant in this enterprise. It will be a delicate and tedious process but if both sides negotiate as equals and in good faith, and if they have the probity to work around the usual problems of legality and constitutionality, they can conclude agreements on mutually advantageous initiatives to exploit the wealth natural resources of the disputed maritime areas, without having to resolve sovereignty questions. For good measure they can conclude ancillary deals on China's participation in a massive infrastructure-building program of the Philippines through the Asian Infrastructure Investment Bank (AIIB).
When the deals are signed, China can wave the documents to the rest of the world as proof that it is capable of dealing fairly with smaller countries and that it is not an ogre of a hegemon, nor a bully. Other claimants — Brunei, Malaysia and Vietnam — may then wish to negotiate their own deals with China.
Wishful thinking? But something like this could have already happened years ago — during the term of President Gloria Arroyo when the Philippines entered into a Joint Marine Seismic Agreement (JMSA) with China and Vietnam. Unfortunately, the planning and the paper work were so sloppy the deal could not pass the test of legality and constitutionality. On top of that, two subsequent deals were reputedly graft-ridden. Nothing like that will happen again, not with Ramos on board.
The rest is up to China. It can pass up this opportunity, double down on its aggressive ways, and feed the fear among neighboring nations that its rise is not peaceful. Or it can take the path of bilateral negotiations that it has always rhetorically pushed for and demonstrate that reasonability is not a sign of weakness but the hallmark of the great.
Tags: Keywords: