A tribunal at the Permanent Court of Arbitration (PCA) recently released its long-awaited judgment in the Philippines vs. China case. The case is the culmination of years of careful judicial and diplomatic positioning by the Philippines, rejecting the legality of China’s dubious claims to 90 percent of the South China Sea and its island-building operations in the disputed waterway. Yet even though the court’s ruling broadly favors the Philippines, the country’s new and bombastic president, Rodrigo Duterte, seems worryingly open to derailing his predecessors’ hard-won efforts. Unless Duterte walks back his campaign rhetoric dismissing arbitration and offering up concessions to China, he could squander a major opportunity to secure greater stability for the Philippines and the region.
The case, which Manila brought against Beijing in 2013 under the UN Convention on the Law of the Sea, concerns the legality of China’s South China Sea claims and island building operations in the disputed waterway. As tensions have risen following China’s 2014-2015 artificial island-building campaign, the case has garnered an uncommon amount of international attention. The ruling represents an historic development for international law and a potential platform upon which the Philippines can wage its ongoing struggle for a rules-based order in the Asia-Pacific.
The court’s ruling found China’s so-called nine-dash line, which laid an ambiguous claim to some 90 percent of the South China Sea, to have no basis in international law. It also clarified the legal status of the land features that Beijing occupies in the Spratly Islands, determining that none are entitled to exclusive economic zones under UNCLOS. Further, the court ruled that China has deliberately aggravated the dispute by damaging the marine environment, denying the Philippines rights to its own EEZ, and destroying evidence of South China Sea features’ natural conditions. It is a strong ruling in the Philippines’ favor, but the question remains whether Manila will properly seize this opportunity.
When now-President Duterte was the longtime mayor of Davao City, he was not known for engaging in debates over foreign affairs. Rather, he built a political reputation as a populist, anti-establishment, tough-on-crime leader — albeit one who has been linked to violent gangs carrying out deadly vigilante justice. In his campaign-season criticism of incumbent president Benigno Aquino, however, Duterte opened a new front and took aim at the current administration’s foreign policy.
The mayor from Davao controversially dismissed the Philippines’ international arbitration case to balance against China’s assertiveness in the South China Sea. Instead, Duterte campaigned on reopening direct talks with Beijing, proposed joint resource development of contested waters, and even volunteered that Chinese investment in the Philippines rail infrastructure could soften his stance on the two countries’ territorial disputes. Although Duterte has occasionally mentioned the value of international meetings on the South China Sea, the bulk of his proposals suggest that he is less interested in a multilateral approach to dispute management than his predecessor.
The new president’s positions on the region seem poised to snatch defeat from the jaws of victory, yet also remain puzzlingly inconsistent. Since his election, Duterte has begun to scale back some of his campaign season concessions. He asserted that his government will expect Beijing to abide by the arbitration case ruling, and that any potential infrastructure investments will not result in the Philippines forfeiting any of its South China Sea claims. But Duterte’s new government has sent persistently conflicting signals on returning to bilateral talks with China, a prospect met with enthusiasm in Beijing.
The PCA legal decision now provides an immediate and consequential test for the new Philippine president. Regardless of any possible policy changes still unfolding from the Aquino-Duterte transition, the court’s decision is legally binding on both the Philippines and China. International law comes with few real enforcement mechanisms, however. China boycotted the legal proceedings from the beginning and has long said that it will not abide by the court’s decision. Indeed, the court has found that several Chinese-occupied featured are legally low-lying reefs, and are not even subject to minimal territorial sovereignty claims under international law. But we should not expect Beijing to simply decamp from the artificial islands it has just built, so it will fall to concerned states to reinforce the legitimacy of this decision.
If Duterte does not continue Aquino’s forceful support of the arbitration process, this verdict will wither in the court of international opinion. Prior to its presidential elections, the Philippines had sought such support from the Association for Southeast Asian Nations for its resort to international law in the South China Sea. The United States, which is neutral on the region’s sovereignty disputes, is firmly supportive of the legal process and engaging in its own public diplomacy effort bolstering the decision. It has been rallying regional partners like Japan, Australia, South Korea, and India, to voice their support for the legal process and to call on both parties to abide. China has been engaged in coalition building efforts of its own, however, encouraging countries like Russia and Cambodia to reject the arbitration process. Duterte’s proposal to return to direct negotiations with Beijing suggests he does not yet value multilateral political pressure as an important tool when making foreign policy in a militarily weak state.
Since the Philippines initiated its South China Sea case in 2013, no one imagined that they might receive a positive decision with anything less than full-throated enthusiasm and a strong determination to see it legitimized. Now that the ruling has arrived, the new president of the Philippines presents a geopolitical curveball, potentially softening the ruling’s impact and limiting his country’s leverage over issues of sovereignty. As the elected leader of a democracy, Rodrigo Duterte may of course recalibrate Philippine global engagement as he sees fit. Too much is at stake for regional stability and for international law, however, for off-the-cuff foreign policy. Duterte must provide the Philippines and the international community with clarity – and soon.
Harry Krejsa is the Asia-Pacific Security Research Associate at the Center for a New American Security. He is co-author of the CNAS report, “Reefs Rocks, and the Rule of Law: After the Arbitration in the South China Sea.”