Time is of the Essence in South China Sea Arbitration Case

By Ernest Z. Bower & Conor Cronin

The Peace Palace in The Hague, Netherlands houses the Permanent Court of Arbitration. Source: Wikimedia, used under a creative commons license.

The timing of the decision by the Permanent Court of Arbitration in The Hague on the Philippines’ case against China’s nine-dash-line claims has critical geopolitical implications for Asia’s security. Specifically, a decision delivered well before the Philippine presidential election this May would allow the administration of President Benigno Aquino to respond strategically and with continuity, whatever the outcome. A decision delivered after May would in effect roll the dice by putting a new leadership team in Manila in charge of managing the court’s determination.

For policymakers, the implications should be clear. If the court decides China’s claims are not legal, then the Philippines, ASEAN, and countries across the world who believe that rule of law should govern the seas will need to carefully and constructively encourage Beijing to recognize and embrace this core tenet of international governance and security.

The Philippines brought its case before the court against China in 2013, challenging Beijing’s vast territorial claim that encircles nearly 90 percent of the South China Sea. The Chinese government refused to respond to the case, insisting that the court had no jurisdiction, and refused to attend the hearing when the Philippine team made its arguments.

Since China declined to present any comments by the January 1, 2016 deadline, the court moved into the deliberations phase and declared its intent to issue a decision in 2016. The window for the court to make an impact on the international relations of the South China Sea is closing fast, but just as critical is Manila’s response and a coordinated global message to Beijing to embrace the rule of law in the interest of regional stability and peace.

December surveys from polling firms Social Weather Stations and Pulse Asia found returning strong support for current vice president Jejomar Binay, a reversal of his once-flagging fortunes. With erstwhile polling superstar Senator Grace Poe facing threats of disqualification on citizenship and residency requirements, Binay has charged back to the fore, much to the dismay of President Aquino and his chosen successor, Mar Roxas.

President Aquino and the Liberal Party are dismayed at the prospect of Binay becoming the next president because of the many ways he diverges from the current administration’s policies. Differences grew so great between the president and the vice president that Binay resigned from Aquino’s cabinet in June 2015, freeing him to criticize the Aquino government openly. One of the first topics he chose to criticize the president on was relations with China.

Although he has publicly affirmed that he would continue the arbitration process, it is hard to see how Binay would take up a court ruling in Manila’s favor while courting Beijing. In an interview with a Philippine radio station before his resignation, Binay pushed for closer ties with Beijing, calling for a bilateral resolution to maritime disputes and even joint ventures to explore energy resources in the South China Sea. Ever the businessman, Binay pointed out that “China has money, [the Philippines] needs capital.”

Other candidates in the race have also weighed in on the arbitration and provided a mixed bag of responses. Senator Miriam Santiago, a legal expert and judge who was the first Asian from a developing country elected to the International Criminal Court, supports the arbitration case, but on other counts has diverged sharply from the policies of the Aquino administration. Santiago, who is strongly opposed to the presence of U.S. military forces in the Philippines, led much of the effort in the Senate against the implementation of the Enhanced Defense Cooperation Agreement with the United States before the Philippine Supreme Court on January 11 finally ruled the agreement constitutional, giving it the go-ahead. It is unclear whether Santiago would risk defying China after shirking U.S. military support.

Rodrigo Duterte, the hardnosed mayor of Davao City known for his support of vigilante murder squads, had colorful language for how he would stand up to Chinese bullying tactics. Despite his tough talk, Duterte said he would pursue bilateral talks and a less confrontational approach with China to resolve the disputes.

Grace Poe and Mar Roxas are the two candidates most likely to carry on Aquino’s course and follow up the court’s decision with actions supporting the authority of international convention. Poe, though independent, aligns closely with the Liberal Party. Roxas is a longtime member of the Liberal Party and has repeatedly supported the president’s approach to China. But Poe’s likelihood of staying in the race is looking increasingly unlikely as she appeals her disqualification by the Commission on Elections, and Roxas polled in the middle of the pack for both presidential surveys released in December.

If the court hopes to pass down a decision which will not be thoroughly ignored as realpolitik overtakes it, it needs to ensure that the Aquino administration has ample time to institutionalize its approach. Since there are no formal enforcement mechanisms for the decision, the messaging from the Philippines and the international community is of greater import. If the decision is released and a new administration ignores it to pursue the bilateral negotiations that China has demanded all along, it decreases the incentive for other small nations to turn to international law and arbitration. If the Philippines didn’t get anything out of pursuing its case, why should Vietnam or Malaysia follow in the future? As other avenues for fair resolution of disputes are shut, states will increasingly turn to military build-up in order to defend their interests with force.

Ultimately, resolving the South China Sea conundrum will require a combination of legal efforts, diplomacy, compromise, and cooperation. But the implementation of the court’s decision, in the short term, is as important to the relevance of international law as it is to the interests of the Philippines. Ensuring that implementation by allowing President Aquino enough time to develop a response to the ruling is critical.

Mr. Ernest Z. Bower is senior adviser and chair for Southeast Asia Studies at CSIS. Follow him on twitter @BowerCSIS. Mr. Conor Cronin is a research associate with the Southeast Asia Studies Chair.

Ernest Z. Bower

Ernest Z. Bower

Ernest Bower is Chair of the Southeast Asia Advisory Board at CSIS.


4 comments for “Time is of the Essence in South China Sea Arbitration Case

  1. Jose L Cuisia
    January 14, 2016 at 11:49

    Dear Ernie, I want to express my sincere appreciation for the excellent article you wrote together with Conor Cronin on why the Arbitral Tribunal should come out with an early decision on the Philippunes’ case against China. You covered all the important points why the Tribunal should make a decision on this case sooner rather than later and I found your arguments very compelling. I showed the article to ADR and he also liked it. Thanks my friend. Joey Cuisia

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