Philippines Takes China to Court: End of Diplomacy in the South China Sea?

"To file, or not to file" this was the crucial question, which Filipino policy-makers have been wrestling with for months, as Manila pondered challenging China's sweeping territorial claims in the South China Sea before a United Nations (UN) court at The Hague.
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"To file, or not to file" this was the crucial question, which Filipino policy-makers have been wrestling with for months, as Manila pondered challenging China's sweeping territorial claims in the South China Sea before a United Nations (UN) court at The Hague. On March 30, the Philippines was scheduled to file a memorandum -- or "memorial" in legal parlance -- to defend its case against China and formally commence an arbitration at the International Tribunal for the Law of the Sea (ITLOS) over the disputed maritime features.

This was by no means an easy choice.

On one hand, filing the case could mean permanent estrangement with China, the total collapse of bilateral ties, and the increased probability of economic sanctions as well as military confrontation in the South China Sea. Even if the Philippines wins the case, there would be no existing "enforcement mechanism" to ensure China respects the outcome of the arbitration. In fact, China has unequivocally expressed its refusal to subject any issue concerning, among other things, "territorial delimitation" to international arbitration. Given the vagueness of China's territorial claims, and their quite unprecedented historical basis, the arbitration panel at the ITLOS would face considerable challenge at arriving at a decisive, clear-cut decision.

At the same time, by pushing ahead with the arbitration, the Philippines could rally the international community behind its own cause, portraying China as a legal pariah. In spite of China's refusal to boycott the proceedings, the Philippines believes that the arbitration could still push through: Since China is party to the United Nations Convention on the Law of the Sea (UNCLOS), the Philippine government believes that Annex VII of UNCLOS accords ITLOS the jurisdiction to push ahead with the arbitration.

Witnessing Russia's international isolation over its annexation of Crimea, the Philippines seems to calculate that China could face a similar outcome over its increased territorial assertiveness in the Western Pacific, especially if it loses the arbitration case at The Hague. Moreover, the Philippines hopes that its own legal maneuver against China will encourage other like-minded countries such as Vietnam, Japan, and India, which happen to share comparable territorial disputes with Beijing, to file similar cases against China.

Preemptive vs. Deterrent Diplomacy

In early-2013, the Philippines initiated court proceeding at ITLOS, filing Notification and Statement of Claim against Beijing's notorious 9-dashline doctrine, which bestows China with quasi-legal "inherent" and "indisputable" sovereignty over the bulk of contested features in the Western Pacific. The aim was to (indirectly) reinforce Manila's claim to a number of features within its 200-nautical-miles Exclusive Economic Zone (EEZ) by directly questioning the legality of China's historical claims in the South China Sea on the basis of international law, specifically the provisions of the UNCLOS.

The Philippines' mid-2013 decision to invite greater American military presence on its soil has surely irritated China, which views growing strategic cooperation between the U.S. and its Asian allies as a thinly-veiled containment strategy against Beijing. The Philippines' decision to file a legal complaint against China, however, has arguably been the greatest source of bilateral tensions, severely undermining channels of communication between Manila and Beijing.

No wonder, much of 2013 saw nothing but deterioration in bilateral ties, as China refused to dignify the Philippines' legal complaint at The Hague, condemned the Philippines' "internationalization" of a supposedly bilateral issue, and framed the whole maneuver as a great affront to its international image. For this reason, some questioned the political wisdom of the Philippines' decision to engage in a legal battle, since it encouraged Chinese hardliners to respond through more aggressive para-military patrols across the South China Sea. And an Air Defense Identification Zone (ADIZ) in the area, which would give Beijing quasi-legal basis to control the airspace above the contested features, could potentially follow this.

But to prevent further bilateral crisis, and potential international backlash over the arbitration case, the Chinese leadership reportedly offered the Philippines certain "carrots" in exchange for Manila's decision to postpone -- not drop -- the filing of the memorial. Aware that it would be too embarrassing and politically untenable for the Aquino administration to drop its much-publicized legal challenge against China, Beijing reportedly only sought a temporary pause in the arbitration case in order to create enough diplomatic space to restart bilateral negotiations over the disputes territories. To sweeten the deal, China reportedly considered mutual disengagement from contested features such as the Second Thomas Shoal, provision of trade and investment deals to the Philippines, and even the postponement of the prospective implementation of an Air Defense Identification Zone (ADIZ) in the South China Sea. This was an enticing offer, which forced the Aquino administration to convene a special cabinet meeting in late-January.

Eventually, however, the hardliners won the day, insisting that China could not be trusted, and that the pressure track is the only way to bring China to the negotiating table in good faith. On March 30, the Philippine filed a voluminous (4,000-page) 'memorial' to the ITLOS, with Filipino officials emphatically declaring their (self-proclaimed) righteous fight against China.

"With firm conviction, the ultimate purpose of the memorial is our national interest. It is about defending what is legitimately ours. It is about securing our children's future. It is about guaranteeing freedom of navigation for all nations," Philippine Foreign Secretary Albert del Rosario exclaimed during a highly-anticipated press conference on March 30. "It is about helping to preserve regional peace, security, and stability...about seeking not just any kind of resolution but a just and durable solution grounded on international law."

The Gloves are off

It must be noted that the prospective finalization of a new security pact between the Philippines and the U.S., most likely in the coming months, has also encouraged the Aquino administration to adopt a more confrontational approach towards China. The Obama administration's increasingly vocal commitment to its Mutual Defense Treaty (1951) with the Philippines as well as its (indirect) expressions of support for the Philippines' territorial claims has strengthened the hands of those, who have called for a more hawkish approach to China.

Sensing the inevitability of an arbitration case at The Hague, China has warned about the potential ramifications of the Philippines decision to legally challenge its territorial claims. And China has the capability to hurt the Philippines if push comes to shove.

During the recent National People's Congress (NPC), the Chinese leadership announced a further acceleration (from 10.7% to 12.2%) in the country's defense spending in 2014, officially standing at $131.56 billion. Most analysts believe that in nominal terms alone, the real figure could be twice the official announcement. Leaving no doubt as to the country's commitment to push ahead with its territorial claims, and overwhelm its neighbors in an event of a conflict, Premier Li Keqiang vowed that the Chinese leadership will "resolutely uphold China's maritime rights and interests, and build China into a maritime power."

Some analysts would argue that the Philippines' infrastructure is also vulnerable to a potential sabotage. For instance, the State Grid Corporation of China (SGCC) owns 40% of the National Grid Corporation of the Philippines (NGCP). In an event of conflict, China could very well sabotage the Philippines' already weak electricity infrastructure, undermining its tenuously booming economy. As the Philippines 3rd largest trading partner, China could also impose sanctions, similar to or more severe than the non-tariff barriers and travel restrictions it imposed on Manila amid the mid-2012 standoff over the Scarborough Shoal in the South China.

All of these could severely undermine the Aquino administration legacy, which is largely based on the Philippines' improved economic performance.

In recent weeks, the Chinese para-military forces have also placed Filipino troops stationed in the Second Thomas Shoal under effective siege. As a result, the Philippine government has been struggling to resupply its maritime forces in the contested feature, which lies dangerously close to the hydrocarbon-rich waters off the coast of southwestern Philippine island of Palawan. In effect, the Philippine leadership views China's maritime posturing as not only a threat to its territorial integrity, but also energy security and economic resources.

A sober analysis reveals how the Philippines has engaged in a very dangerous gamble against China. Nonetheless, much will depend on how the Philippines will transform the momentum generated by its latest legal maneuver into a political springboard to pressure China into the negotiating table. To prevent a wholesale reprisal by Beijing, the Philippines will have to aggressively convince other Asian countries, notably Vietnam, to file a similar case against China, while ensuring maximum strategic and security guarantees from the U.S. in an event of a conflict in the South China Sea.

After all, international relations is not a realm of law, but instead a battlefield shaped by "balance of power" politics -- and the wisdom of diplomats on the negotiating table.

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