Internationalizing the Spratlys
On 22 January 2013, the Philippines notified China that it was initiating arbrital proceedings “to clearly establish the sovereign rights and jurisdiction of the Philippines over its maritime entitlements in the West Philippines Sea.” An Arbrital Tribunal is one of the four procedural choices for the settlement of disputes concerning the interpretation or application of the United Nations Convention on the Law of the Sea or UNCLOS.
By seeking this recourse, the Philippines has taken another way of internationalizing its disputes with China over maritime jurisdiction within the West Philippine Sea, which is part of the broader South China Sea. Internationalizing this dispute is a logical strategy for the Philippines.
First, the Philippines is not in a position to project force in aid of its claims in the West Philippine Sea. Nor it should, particularly offensive force. All States Parties to UNCLOS have an obligation to settle any dispute between them by peaceful means in accordance with their commitment under the United Nations in such a manner that international peace and security, and justice, are not endangered.
China is fast becoming a naval power if it is not yet. China has already deployed submarines and destroyers in the area. China now has an aircraft carrier capable of transporting fighter planes. It is a nuclear weapon State. On the other hand, the Philippines has none of these and remains dependent on the United States’ military assistance under the Mutual Defense Treaty.
Putting on notice before legitimate international organizations and the world of public opinion is, therefore, an important weapon available to weaker states. Public communication could be decisive in any political struggle both among nations and here at home.
At the domestic level, it is like putting someone on the police blotter to document acts of threats against another person. In its notification and statement of claim, the Philippines says that China has unlawfully interfered with the exercise by the Philippines of its rights to navigation and exploitation of living resources within its archipelagic waters.
Second, most of the South China Sea, a 2.7-million square kilometer area in the middle of eight of the ten Southeast Asian countries and China, are high seas where transit and innocent passage is guaranteed under UNCLOS. The right to transit and innocent passage cannot be impeded and suspended.
As part of international seas, naval fleets of Major Powers do not just pass through this area. Military exercises, including multinational in nature, take place within or passes through Exclusive Economic Zones of various states in the region. Russia's Pacific Fleet exercises with China in the area.
The United States Navy’s Seventh Fleet, reportedly the largest among the forward-deployed U.S. fleets, regularly patrols and uses this area in sending troops and logistics for the largest multinational exercise in the Asia-Pacific region with more than 10,000 participants from seven participating countries and several invited observers, known as the Cobra Gold. The exercises include senior leader engagements, simulations and field training exercises, and humanitarian and civic assistance projects. Even India is thinking of deploying warships to the area where it has oil and natural gas commercial interests.
Moreover, one-third of global maritime trade uses the South China Sea. It is estimated that each year, $5.3 trillion of trade passes through that area and U.S. trade accounts for $1.2 trillion of this total. Therefore, the Philippines’ internationalization of its entitlement claims over the West Philippine Sea is simply an extension of an already international domain.
Third, internationalizing the Philippines’ disputes with China by invoking international laws and norms could, in fact, be an important contribution to the promotion of the rule of law in our international system where there is no world government. It is of course a reality that, where there is no effective enforcement authority, might could end up being right.
But as Alexander Wendt once said, anarchy is what States make of it. We should remain a staunch supporter of constructing an international community based on norms and principles. It is equally important to be reminded of what Edmund Burk said that the only thing necessary for the triumph of evil is for good men to do nothing.
All these years, the Philippines negotiated in good faith, bilaterally and within the framework of ASEAN-China relations. There is no reason why the Philippines should not reconsider and go back to the negotiating table once China makes its claims less than extravagant, threatening and more respectful of neighbourly relations and the rule of law. There seems to be no evidence of that for now.
(Disclaimer: The opinions expressed in this article are the author's and do not necessarily reflect the views of the organizations of his affiliation.)