3 years later, did Duterte quash Philippines’ legal win vs China?

Philippine President Rodrigo Duterte (L) shakes hands with Chinese President Xi Jinping before their meeting at the Great Hall of People in Beijing on April 25, 2019. Photo by Kenzaburo Fukuhara, Pool/AFP

MANILA — President Rodrigo Duterte is facing increasing pressure to revisit his China policy and wield the Philippines’ legal victory against Beijing’s environmentally destructive activities in the disputed waters.

Friday marks 3 years since the Permanent Court of Arbitration (PCA) in The Hague upheld Manila’s sovereign rights to its 200-nautical-mile exclusive economic zone (EEZ), rejecting Beijing’s historic claim to resources in the South China Sea using its nine-dash line doctrine.

But the ruling remains a “paper victory,” said maritime lawyer Jay Batongbacal, largely because of the Duterte administration’s decision to set it aside in exchange for improved economic ties with China.

Former Solicitor General Florin Hilbay warned the Duterte administration against effectively recognizing China’s claim and “undermining our rights” to the West Philippine Sea despite the Hague ruling.

“Whether it’s by waiver, estoppel, acts inimical to the interest of the republic, then that can become potentially a basis for China to say down the line, ‘Well you had a right but you lost it,’” he told ABS-CBN News.

APPEASEMENT

China has completed construction of artificial islands in the Spratlys, pulverizing coral reefs to build military outposts in the strategic waterway.

Over at Scarborough Shoal, an area classified as a traditional fishing ground by the PCA, Chinese fishermen, backed by its coast guard, continued to destroy reefs to extract high-value giant clams.

Analysts warned 3 more years of Duterte’s so-called policy of “appeasement” would only worsen the damage to the marine environment and Philippine sovereign rights.

“It’s high time for them to change their policy and start pushing back a bit, even a little, against china and its actions in the West Philippine Sea,” said Batongbacal, who heads the U.P. Institute for Maritime Affairs and Law of the Sea.

Duterte’s modus vivendi with Beijing allowing Chinese fishermen in the Philippine EEZ “permanently damaged” the arbitral ruling, said Florin Hilbay, who helped argue the case at the Hague during the Aquino administration.

“It’s as if he’s waiving the rights that we have already won,” Hilbay said.

VINDICATION

The verbal deal, supposedly struck by Duterte with President Xi Jinping in 2016, came under scrutiny after a Chinese vessel sank a Filipino fishing boat and abandoned its 22 crewmen at Recto Bank.

The Hague ruling “vindicated our rights to our EEZ,” Batongbacal pointed out, so the Chinese had no business being in the area, which was located 85 nautical miles from Palawan.

Coastal states such as the Philippines exercise sovereign rights to their EEZs, meaning resources there are exclusive to them.

The PCA decision, released less than 2 weeks after Duterte assumed office, said China’s nine-dash line doctrine was “incompatible” with EEZs outlined in the 1982 United Nations Convention on the Law of the Sea.

“There was no evidence that China had historically exercised exclusive control over the waters or their resources,” a tribunal statement in 2016 said.

PREMATURE

Aaron Jed Rabena, a Manila-based foreign affairs analyst, cautioned against “prematurely judging” Duterte’s policy toward China, a major trading partner and the second biggest economy in the world.

Rabena, in a commentary published by the Lowy Institute, said the president’s “broad engagement” with Beijing had led to “favorable results” for Manila.

These include an “increase” in the Philippines’ “diplomatic and strategic value to Washington,” he said.

But he acknowledged that Duterte’s “creative” approach to foreign policy could also be set back by his “defeatist statements.”

“That’s what makes the president’s foreign policy look bad,” he told ABS-CBN News.

Duterte has been criticized for what appeared to be policy pronouncements essentially recognizing China’s maritime claim despite the PCA ruling.

The Philippine constitution mandates that resources within the country’s EEZ should be enjoyed “exclusively” by its citizens, a provision the president said was “for the thoughtless and senseless.”

SLOW DOWN

The Hague ruling has been criticized for lacking an enforcement mechanism to compel China to abide by it.

The Aquino administration sought to rally international support behind the Philippine arbitration case, framing it in the context of respecting the rule of law.

Under Duterte, the government departed from this track and instead engaged China bilaterally.

The ruling, landmark as it was, still failed to stop China’s island-building and general assertiveness in the disputed waters, the president argued.

But Batongbacal said the asserting the arbitral win, coupled with good strategy, “could have at least slowed down China’s incursions in our EEZ.”

“We could have at least deterred some of their more problematic developments in the South China Sea such as the completion of their facilities in the Spratly islands,” he said.

China, South China Sea, West Philippine Sea, maritime dispute, Permanent Court of Arbitration

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