Flanking tactics

Don’t look now, but if we’re not careful, we could find ourselves legally outflanked over the West Philippine Sea.

In a move widely reported abroad on May 30 but which merited just minor, bottom-page treatment in the “World” pages of two local dailies, China Foreign Minister Wang Yi “and high-level representatives from 33 countries” signed a convention setting up an intergovernmental mediation body in Hong Kong. An article in the China Business Law Journal (CBLJ) said that the newly formed International Organization for Mediation (IOMed) that was initiated by Beijing “is modeled on the International Court of Justice and the Permanent Court of Arbitration (PCA) at The Hague, Netherlands.”1

It is Beijing’s latest move in its bid to gradually change an international order long dominated by the West (wouldn’t you do the same if you were the only other political-military-economic superpower?), but one that could soon impact us directly.

IOMed’s website does not yet provide a complete list of signatories, although one article cited China and “31 other ‘like-minded’ countries” like Pakistan, Papua New Guinea, and Venezuela2, while the CBLJ piece cited Algeria, Cuba, and Indonesia. Besides these countries, others that in 2022 signed the joint statement on IOMed’s “future establishment” also included Belarus, Cambodia, Cameroon, Côte d’Ivoire, Djibouti, Equatorial Guinea, Ethiopia, Gabon, Lao PDR, Madagascar, Sri Lanka, Sudan, Thailand, and Zimbabwe.3

The CBLJ article quoted Tao Chun-ming, former secretary-general of the respected Hong Kong International Arbitration Center (HKIAC), as telling media that he expected the IOMed to “resolve disputes in Asia and Africa at the beginning of operations” by early next year.

HURTING
It can be recalled that the Arbitral Tribunal at The Hague ruled in July 2016 against China’s “nine-dash line” in the South China Sea and its claim to exclusive “historic rights to resources” within that unilateral boundary.4

Beijing refused to participate in that case which the Philippines filed in January 2013, arguing that the tribunal lacked jurisdiction, and wielded the “might-is-right” principle by sending its navy, coast guard, and maritime militia (anyone still believes they are legit fishermen?) to elbow out Philippine ships and fishermen from areas in the Philippines’ 200-nautical mile exclusive economic zone (EEZ). It has also been deploying survey ships to loiter illegally within our EEZ and, in some instances, even territorial waters, violating the concept of innocent passage under international law (not to mention that someone has been leaving Chinese-marked drones off our shores).

While the IOMed differs from the commercial row-focused Hong Kong-based South China International Arbitration Center that was formed in 2019 and the private sector-led HKIAC formed in 1985 (more than a decade before China took over Hong Kong in July 1997) — in that the former will handle disputes (a) between states, as well as (b) between a state and the national of another state, besides (c) international commercial disputes between private parties — an official primer clarified that the new body will not mediate “disputes concerning territorial sovereignty, maritime delimitation, maritime interests or other issues… which have been excluded” by a state “through a declaration.”5

In this sense, it is similar to the PCA, which said in a press release on the Arbitral Tribunal’s July 2016 ruling that “it does not rule on any question of sovereignty on land territory and does not delimit any boundary between the Parties” under compulsory dispute settlement limitations of the convention that set up that court.

SORE POINT
Expect any superpower to find ways to plug any loophole in its power/influence projection.

Beijing’s statements since the July 2016 ruling show that while the former is secure in its coercive power, it has been smarting from the widespread support that the ruling has garnered. (I used to question the belief that the value of “saving face” remains compelling for Beijing, but its statements and actions in this matter have laid to rest such doubts.)

To Beijing’s dismay, we no longer fit in its playbook, which prescribes bilateral talks between a superpower and individual small neighbors in order to ensure that the former gets its way in any dispute. It is a course still advocated by some among us, even if the last administration — which adopted that tack (well, someone had to test it) — admitted in its final year that Chinese forces had pushed around Filipino troops (not to mention fishermen) within the Philippines’ EEZ. It’s just that military and coast guard personnel who bore the brunt were purportedly told back then not to talk to media about such incidents in order not to aggravate bilateral ties.

Beijing has reeled from the hit to its reputation, the latest occasion marked by the statement of visiting Lithuanian Defense Minister Dovilė Šakalienė, who said that incidents in the West Philippine Sea “shatter[s] the illusion of China being a peaceful and friendly neighbor.”6

Through its consulate-general in Auckland, New Zealand, Beijing also tried in vain to block the showing of the independent film, Food Delivery: Fresh from the West Philippine Sea, at the Doc Edge Festival on June 30, “in the interest of public and China-New Zealand relations.”7

Given this gap in its power/influence projection and as part of its efforts to shift the world order away from the West, Beijing decided: why not set up a new arbitration body within its own territory, where it wields unquestioned sway (one wonders whether IOMed can ever rule vs Beijing’s interests)?

I’m no lawyer, so it bears watching if China will file any case in that new HK venue that will, in some way, counter or somewhat dilute our 2016 legal victory which has been supported by many countries keen on unhindered South China Sea transit.

One possibility can stem from a July 2024 claim by China’s Natural Resources ministry that the grounding of the BRP Sierra Madre at the Second Thomas Shoal in 1999 has “seriously damaged the diversity, stability and sustainability of the coral reef ecosystems” in the area.8

Hence, mounting calls for the Philippines to follow up its July 2016 legal victory with a separate case on the massive ecological damage caused by China’s large-scale land reclamation and construction of artificial islands, as well as Beijing’s failure to stop the harvest by Chinese fishermen of “endangered sea turtles, coral, and giant clams on a substantial scale in the South China Sea (using methods that inflict severe damage on the coral reef environment)” — a finding cited in that arbitral ruling. Justice Secretary Jesus Crispin C. Remulla had said in January that the government was studying such a case.9

Well, it took the Arbitral Tribunal three years to rule on the Philippines’ suit — albeit that was a more comprehensive case — and President Ferdinand R. Marcos, Jr. will be marking the midpoint of his six-year term with his state-of-the-nation address come July 28.

One legal expert belittled any environmental case that China could file over BRP Sierra Madre’s continued grounding, saying that any damage caused by that decaying wreck — still registered as an active Philippine warship in order to trigger the Mutual Defense Treaty if attacked — pales in comparison to that caused by China’s island-building.

NEW ORDER EMERGING
To be sure, the establishment of this new arbitration court fits in with other moves to supplant an international order long dominated by the West, and from which we could benefit.

Take for instance the call in a July 5 joint statement of the finance ministers of the fast-growing BRICS group for reforms at the International Monetary Fund that include a more equitable distribution of member voting rights and an end to longstanding European leadership at the multilateral lender.10

China also spearheaded the establishment in 2016 of the Asian Infrastructure Investment Bank, which grew membership to 103 countries and territories by end-2020 from 57 founders and is headquartered in Beijing, as part of a broader thrust to provide alternatives to western-dominated institutions like the International Monetary Fund and the World Bank.

Beijing and Moscow have also signaled support for a nuclear weapons-free Southeast Asia — formalized by ASEAN in its December 1995 Bangkok Treaty — while Washington is reportedly considering the same.11

WATCH OUT
But one upcoming situation of immediate concern to us is the Philippines’ assumption of the ASEAN chairmanship next year.

The ASEAN regularly tracks a whole range of economic cooperation targets and had originally eschewed more divisive political issues. But it could not avoid taking note of the latter (without mentioning individual economies) in the past decade, e.g., as the Philippines and China clashed in the West Philippine Sea since 2013. Neither can it ignore simmering Thai-Cambodian border tensions of late.

One matter related to the West Philippine Sea (WPS) is the long-awaited Code of Conduct in the South China Sea (CoC) — the WPS is simply the part of South China Sea within the Philippine EEZ — for which negotiations began in 2018 even if this idea had been discussed since 2002, when ASEAN and China signed a Declaration on the Conduct of Parties in the South China Sea on consensus to seek peaceful dispute resolution and maritime cooperation.12

One knowledgeable diplomat who I consulted, however, expects talks to drag on — even if ASEAN hopes to finalize the CoC next year — doubting that there would be much progress so long as China insists on delinking the envisioned CoC from the landmark 2016 arbitration ruling (in order to dilute the effects of that decision), while the Philippines and Vietnam assert otherwise.

Judging from ASEAN statements and actions of individual members and China since 2013 (when the Philippines haled China to court at The Hague), it would be unrealistic to expect material progress on the CoC next year unless one side gives in (which could give China its desired legal gain vs the 2016 ruling).

I am not sure if anything else on this matter could be achieved even at the sidelines of next year’s ASEAN meetings, and even with the Philippines at the helm, especially in the wake of China’s top-level meetings with the leaders of Indonesia (in April and November 2024, plus a phone call last April), as well as Cambodia, Malaysia, and Vietnam on April 14-18 that served to further deepen bilateral ties. Those engagements yielded scores of agreements in agriculture, trade, infrastructure, artificial intelligence and other technologies, as well as health and education. China is on a charm offensive to project itself as a more reliable strategic partner in the wake of global trade and political disruptions after US President Donald Trump returned to the White House as 2025 began.13

THE NEXT PHASE
At this point, let me just note that Vietnam — which marked a successful visit by Mr. Xi in April — is able to maintain fruitful bilateral ties with its giant northern neighbor despite occasional clashes (Hanoi protested in October last year an incident in which Chinese coast guard sailors wielded iron bars to attack Vietnamese fishing around the Paracel Islands in the South China Sea, injuring at least 10 Vietnamese).14

Sure, the fact that both countries are ruled by communist parties — with Mr. Xi praising their “brotherly” relations in his April 14 arrival statement in Hanoi15 — helps provide stability amid hiccups in their relationship.

But I hope our leaders have been consulting their counterparts from Vietnam and Indonesia — who we consider our closest “brothers” in ASEAN — for tips on how to move forward with China.

To be sure, we have not been lacking in gains in our ties with China — from more of their companies setting up shop or expanding presence here to close cooperation in the fight against transnational crime.

It’s just that, perhaps, it could help for us to emphasize those positive elements — as both of those neighbors do — without giving up an inch of our rights in our waters and EEZ.

Striking that balance could do the trick. n

1 https://tinyurl.com/ypwpm2gm

2 https://tinyurl.com/yw47jbzl

3 https://tinyurl.com/yv5qebm3

4 https://pcacases.com/web/sendAttach/1801

5 https://tinyurl.com/yv98yong

6 https://tinyurl.com/yk73bk2h

7 https://tinyurl.com/ym4gtwpg

8 https://tinyurl.com/2cam9aen

9 https://tinyurl.com/244jwftl

10 https://tinyurl.com/yuokb84f

BRICS now counts as members Brazil, Russia, India, China, South Africa, Egypt, Ethiopia, Indonesia, Iran and the United Arab Emirates, while Belarus, Bolivia, Cuba, Kazakhstan, Malaysia, Nigeria, Thailand, Uganda and Uzbekistan have been inducted as partner countries. ( https://www.mea.gov.in/Portal/ForeignRelation/BRICS-2025.pdf )

11 https://tinyurl.com/yw79dzv2

12 https://tinyurl.com/yo9exws5

13 https://tinyurl.com/yld9vt72

14 https://tinyurl.com/yrygr6dm

15 https://tinyurl.com/yofa3jva

Wilfredo G. Reyes was editor-in-chief of BusinessWorld from 2020 through 2023.