You are on page 1of 3

Thayer Consultancy

ABN # 65 648 097 123

Background Briefing: China-Philippines Standoff: Davis versus Goliath? Carlyle A. Thayer May 6, 2012

[clientnamedeleted] 1. The Philippines, under President Benigno Aquino III, has adopted a more aggressivepolicyagainstChinainrelationtotheSCSdisputes.Itsthefirstclaimant country, to my mind, to attempt to bring these longunresolved problems to international arbitration. At the same time, most of the international tribunals or courts, need both parties consent for a case to be even heard and its clear that ChinawontsupportanUNCLOSorinternationalarbitration. What are the risks for Aquino in taking on China frontally in relation to the SCS disputes?ItsaDavidversusGoliathbattle,whatbenefits/problemswillAquinoreap in standing up to Beijing? Is his aggressive stance rather than appeasement/compromiseatoodangerousgambleforAquino?Orisheontheright butuntreadedpath? ANSWER: The Aquino administration is pursuing a threetrack approach to sovereignty disputes with China diplomatic, political and legal. The Philippines is not necessarily taking a major risk by pursuing the legal track because it puts the Philippinesonthesideofupholdingthenormofinternationallawtosettledisputes. ThePhilippinesgetstotakethehighmoralgroundbecauseitsapproachexposesthe contradictions in Chinas declared policy. China asserts disputes should be settle underinternationallawwhileatthesametimeclaimingindisputablesovereigntyon thebasisofhistoricrights. The risks are that if China continues to brazen it out the legal track will appear toothless and needlessly provocative. China has the capacity to outlast the Philippines at Scarborough Shoal and make Manila blink first. This will devalue Filipinoassertionsofdefendingtheirterritorialintegrity. AlreadyitisapparentthattherearenervousnelliesinASEANwhoshyawayfrom confronting China. Commentators in Malaysia and Singapore have been critical of the stance the Philippines has taken. the Philippines risks being marginalized in ASEAN. WhataretheconsequencesifthePhilippinesdoesnotstanduptoChina?Chinese fishermen will continue to encroach more and more into the Philippines Exclusive Economic Zone. The Chinese will establish a presence in Scarborough Shoal and protect it with civilian enforcement ships. This turns the clock back over a decade

2 whenitwascommontorefertoChinastacticsascreepingassertivenessandtalk andtake. 2. The standoff is a test for ASEAN, the US and a rising China. How will they likely handleorrespondtothehighstakesimpasse? ANSWER:ThecurrentconfrontationatScarboroughShoalisbothasovereigntyand a jurisdictional dispute. It is not a military confrontation, no side has used or threatened to use force. The major damage done to the Philippines is illegal harvesting of protected marine species by Chinese fishermen and the exposure of the Philippines ability to exercise its sovereignty and sovereign rights in the area. ThematterisessentiallybilateralandthereisnodirectroleforASEAN. AsfortheUnitedStates,itisunclearifthe1951MutualDefenseTreaty(MDT)covers rocksintheSouthChinaSea.TheMDTwassignedlongbeforethelegalnormsinthe United Nations Convention on Law of the Sea (UNCLOS) were negotiated. Unless China employs military aircraft and naval warships, the present standoff does not risetothelevel ofthreatspecifiedintheMDTrequiringconsultations.TheUShas made clear it will not take sides in territorial disputes. But the logic of the US position is to give effective assistance to the Philippines so it can enhance its own civil and military capacity to defend its sovereignty and territorial integrity. This is notaquickfixsolutionbutonethatwilltakehalfadecadeormoretoaccomplish. China is caught in a dilemma of its own making official claims to historical rights anditstablingoftheninedashlinemapaswellasrisingdomesticnationalism.Itis inChinasinteresttoassertitssovereignty,eschewtheuseofforce,andwaituntil thePhilippinesgivesintorelentlesspressure.ThePhilippineswillbeanobjectlesson forVietnam,Malaysia,BruneiandIndonesia. 3. Why is China so opposed to international arbitration or bringing the disputes to UNCLOSrelated tribunals? Is there a high risk that it may lose a case or get an disadvantageous ruling or interpretation and see its 9dashed claim collapse altogether?WilltheleadershipchangeinChinahaveanybearingonChinasposition intheScarboroughstandoff? ANSWER: China is opposed to international arbitration for several reasons. First, it views international arbitration as conceding that China does not have indisputable sovereignty. Second, although China signed and ratified UNCLOS it views this convention as favouring western states. Third, taking territorial disputes to internationalarbitrationcouldexposeChinasclaimsaslackingafirmfoundationin international law. Fourth, Chinas leaders face tremendous internal pressures to standfirmonitsassertionofindisputablesovereignty.Iftheninedashlineclaimis rejectedbyinternationalarbitration,Chinalosesbigtime.Chinaspowershifttothe nextgenerationofleadersmakestheScarboroughShoalstandoffapoliticizedissue. The new leaders are likely to continue Chinas assertiveness. However, if the PhilippinescangaintractioninASEANandifSouthChinaSeaissuesrisetothelevel of2010intheASEANRegionalForumandthe2011EastAsiaSummit,Chinasnew leaders are likely to seek a political settlement to recoup some of their losses in international prestige. It is clear that the assertiveness of several civilian agencies and local government from 2009 onwards produced a backlash against China regionally. China responded by appointing State Counselor Dai Bingquo to head a

3 smallgroupworkteamtoassertcentralauthorityoverthesocalledninedragons orseparateministrieswithresponsibilityformaritimeaffairs.CounselorDaihashad difficultycontrollingtheseagenciesandhewillstepdownaspartoftheleadership transition.

You might also like