By Malcolm Cook

Too much, too soon: The July 12 West Philippine Sea ruling

Posted on July 27, 2016

WE SHOULD HAVE sympathy and patience for the new Duterte administration when it comes to responding to the resounding July 12 arbitration tribunal ruling in favor of the case filed by the Philippines in January 2013. The ruling can easily be seen as a case of too much, too soon.

The too soon. The ruling came less than two weeks after the presidential inauguration and two weeks before the first scheduled meeting of the National Security Council under this administration. The retractions, pending official response, and mixed messages we have witnessed are to be expected. Two things, at least, about the new Duterte administration amplify this challenge of the soon. First, during the presidential election, Duterte questioned the wisdom of the Aquino administration's decision to take China to court. The ruling is a legacy from the preceding administration, and one that Duterte has yet to fully embrace. Last Friday, in Maguindanao, Duterte stated: "If we can just have a settlement with them [China] despite the arbitral judgment, I think that we can get many benefits." Second, Duterte himself and his chosen stand-in Foreign Secretary, Perfecto Yasay, have very little relevant experience when it comes to strategic and foreign policy implications of the July 12 ruling. Neither have strong pre-existing relations with the relevant agencies of the national government. These relations and how Duterte and his team work with these agencies are being tested before they have been established. A baptism by fire indeed.

The too much. The ruling and the initial responses to the ruling are arguably the single most important foreign and security policy challenge facing the Philippines since the decision to not renew the leases on the US bases a quarter century ago. The ruling was eagerly awaited and has been firmly responded to by the Philippines only ally and largest source of foreign direct investment (US), the country's largest source of imports and trading partner (China), the country's top source of official development aid and infrastructure financing (Japan), the Southeast Asian neighbors, India, Australia, the European Union, and Taiwan. ASEAN, that the Philippines will chair next year on the Association's 50th anniversary, stands alone in its silence.

As expected, the US, Japan and Australia call on all parties to abide by the ruling. China and Taiwan reject it outright, China with more vitriol and insult than Taiwan. Southeast Asian governments were muted in their response, all avoiding verbs like abide and adhere, and most mentioning neither the ruling nor China. India's fulsome support for the ruling and the European Union's less than fulsome acknowledgement of it were more surprising.

The comprehensive nature of the ruling makes reaching an agreement with China in the West Philippine Sea, "despite the arbitral judgment" difficult. The unanimous decision by the five judges comprehensively supports the case filed by the Philippines in 2013 and undercuts China's maritime rights claims in the broader South China Sea. The only maritime rights that China can still claim to be in legal dispute with the Philippines in the West Philippine Sea are within the 12 nautical miles of the few land features, including Panatag Shoal, that the tribunal ruled are rocks. No features are islands with the right to an exclusive economic zone that could overlap with the Philippine zone. China's historic rights claim to maritime rights within the infamous nine-dash line covering more than 80% of the West Philippine Sea (and larger South China Sea) is now unlawful as are Chinese efforts to block access to the Philippine Sierra Madre vessel on Ayungin Shoal and exploration of energy reserves off Recto Bank. If the Duterte administration sticks to its commitment to use the ruling as the basis for bilateral discussions with China, there is little left to talk about except China's unlawful actions in the West Philippine Sea exclusive economic zone.

The Philippine response to the ruling will definitively shape the Philippines' relations with its neighbors, Asia's major powers and international law for the duration of the Duterte administration. If as China favors, Duterte ignores the ruling, this will greatly aid Philippine-China relations in the short term at the cost of the Philippines' international reputation, standing in the region, and relations with the US, Japan, India and Australia. Former Foreign Secretary del Rosario noted that the ruling is a rare case of “right makes might.” Duterte's decision, a decision that has come too soon and is too much, will determine if this is the case.

Malcolm Cook is a senior fellow at ISEAS-Yusof Ishak Institute in Singapore and a visiting professor at Ateneo de Manila University's Political Science Department where he taught full-time from 1997-2000.