Shame Power: The Philippine Case against China at the Permanent Court of Arbitration

The Philippines may not have much conventional power it can bring to bear in its territorial dispute with China in the South China Sea. But today it demonstrated that it does have the power to shame China on the international stage. After hearing the Philippines’ legal case against China’s South China Sea claims, an international tribunal at the Permanent Court of Arbitration (PCA) ruled that there was “no legal basis for China to claim historic rights to resources within the sea areas falling within [its] ‘nine-dash line’” claim. The ruling went even further. It detailed how China had aggravated the dispute and “violated the Philippines’ sovereign rights in its exclusive economic zone” by constructing artificial islands and interfering with Philippine fishing and energy exploration.[1]

Chinese and Philippine claims in the South China Sea
Chinese and Philippine claims in the South China Sea

The ruling was a long time in coming. In 2013 Manila brought its dispute with China to the PCA, an option provided for under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Normally, the PCA’s tribunal would have heard the arguments of both parties in a dispute before making its ruling. But in this case, it heard only those of the Philippines. China refused to participate in the proceedings, arguing that the tribunal had no authority over its maritime borders. So to ensure that the tribunal had adequate authority to make a ruling, Manila asked it to narrowly assess “the sovereign rights and jurisdiction of the Philippines over its maritime entitlements” in the South China Sea. That allowed the tribunal to make a ruling without Chinese participation. It also obliged the tribunal to consider the validity of China’s overlapping “nine-dash line” claim under UNCLOS.

Of course, the tribunal’s ruling does little to compel China to change its behavior in the region. China has already changed the status quo in the South China Sea. Over the last two years China has reclaimed enough land to turn the features it occupies in the Spratly archipelago into man-made islands large enough to support military-grade airfields and facilities. China is unlikely to abandon them now.

Over the long term, the tribunal’s ruling puts the Philippines in a better position to pursue future legal action. For the time being, however, what the tribunal’s ruling does do is to publicly shame China. Once, that mattered to China. In 1997, when a United Nations commission was considering a resolution critical of China’s human rights record, Beijing mounted a major diplomatic campaign, including tours by Chinese leaders and offers of trade deals, to dissuade other countries from voting for it. The fact that China did so to avoid international criticism suggested that it mattered to China. Today it does not seem to matter as much. China has grown too economically and militarily powerful. That has made it more confident in its ability to shape its geopolitical environment on its own terms.

One of the first countries to feel the brunt of China’s new confidence was the Philippines. Perhaps that was because the Philippines had become an easy target. After the Cold War, it allowed its navy and air force (the two services that matter in the South China Sea) to fall into disrepair. At the same time, it distanced itself from the United States. So, when China began asserting itself in the South China Sea, there was little Manila could do. That much was clear when China blocked access to Philippine-claimed Scarborough Shoal in 2012 and prevented Manila from resupplying by sea its outpost on Second Thomas Shoal in 2014.

Yet Manila refused to back down. It took its case against China to the PCA. It also began to rebuild its armed forces and strengthen its security ties to Japan and the United States. In March, the Philippines and the United States held their first joint naval patrol in the South China Sea and finalized their Expanded Defense Cooperation Agreement, allowing American forces to rotate through Philippine military bases. Meanwhile, the Philippines has hosted a growing number of Japanese naval vessels, including a submarine, at its naval base in Subic Bay.

Nonetheless, the Philippines may change its approach to China. Former President Benigno Aquino, whose perseverance had been so critical in keeping international pressure on China, left office in June. His successor, Rodrigo Duterte, seems ready to take a softer line towards China. During his presidential campaign, he said that he would work to shelve the Philippines’ dispute with China; and that he was open to joint development of the South China Sea, especially if Chinese economic assistance was forthcoming. Such comments should encourage Beijing. But it remains to be seen how China responds.

In the meantime, China is likely to brush off the tribunal’s ruling. But the Philippines’ success at the PCA has not gone unnoticed. Other countries have followed the tribunal’s proceedings with keen interest. Encouraged by the Philippines, Vietnam added its position to the proceedings in late 2014. Indonesia has said that it would consider its own case too, if negotiations with China failed. Even Japanese lawmakers have discussed the possibility of international arbitration over China’s offshore drilling activities in the East China Sea. If the Philippine case sets a precedent that others follow, Manila will have demonstrated that it has not only the power to shame, but also the power to inspire.

[1] Matikas Santos, “Key points of the arbitral tribunal’s verdict on Philippines vs China case,”, July 12, 2016.

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Japan’s Security Role in Southeast Asia (and the South China Sea)

Only a few years ago, it would have seemed inconceivable that Japan would have any security role outside of Japanese territorial waters.  But in a January 2015 interview, Admiral Robert Thomas, commander of the U.S. Seventh Fleet, related that Washington would welcome Japanese maritime air patrols in the South China Sea.  He said that they could help to stabilize the region by balancing China’s growing naval strength there.  That broke a long-standing taboo in Japan on public discussion of such uses for the Japanese armed forces.  While it still may be some time before Japan mounts maritime air patrols over the South China Sea, yesterday it held an historic naval exercise in those waters.

It was the first time Japan’s Maritime Self-Defense Force ever conducted a bilateral exercise with the Philippines.  Two Japanese destroyers and a Philippine corvette practiced how to deal with “unplanned encounters at sea.”  They exercised near Subic Bay, a big Philippine (and former U.S.) naval base that is only 260 km from Scarborough Shoal—the spot where Chinese and Philippine patrol boats were locked in a months-long standoff in 2012 and where the Chinese coast guard used a water cannon to drive away Filipino fishermen just last month.[1]

Even before the naval exercise, the Japanese and Philippine coast guards held a smaller drill in Manila Bay a week ago.  Later this year, Japan will deliver the first of ten offshore patrol boats that it promised the Philippines in 2013.  Manila plans to use them to better monitor its territorial waters in the South China Sea and prevent intrusions into them.  Security ties between the two countries have grown substantially.  Last year, Japanese Prime Minister Shinzō Abe invited Philippine President Benigno Aquino III to Tokyo to discuss greater security cooperation.  At the time, Aquino went so far as to say that “nations of goodwill can only benefit if the Japanese government is empowered to assist others… especially in the area of collective self-defense,” giving a nod to Abe’s efforts to loosen Japan’s constitutional constraints that prevent his country from defending allies under attack.[2]

South China Sea - Japan

Japan has also expanded its security activities with other Southeast Asian countries.  Early this year, it mended ties with Thailand, whose coup led to a surge of Chinese influence there and strained relations with its longtime ally, the United States.  In March, Japan signed an accord with Indonesia to enhance military exchanges and collaboration on defense equipment development.  And Japan has steadily expanded its military cooperation with Vietnam, another claimant in the South China Sea dispute.  Japan promised it offshore patrol boats too.  In fact, immediately after the Japanese coast guard finished its drill in the Philippines last week, one of its cutters proceeded to Vietnam to participate in an exercise there.[3]  Japan has clearly sought a greater role in the security of the region.

Nonetheless, there is a question of whether Japan’s military can sustain a wider role.  Contrary to China’s claims, Japan’s defense budget has not grown much.  It rose less than three percent in the last year (and not at all in U.S. dollar terms).  Any real expansion of Japanese military presence in Southeast Asia will have to run on a shoestring until Tokyo can afford a true increase in military spending.  That is not to say Japan is without options.  Its new long-range P-1 maritime patrol aircraft would be useful for patrols over the South China Sea.  Moreover, Japan could enlarge its navy by simply slowing the pace at which it decommissions older warships, many of which are still highly capable.  But there are limits too.  Keeping older warships in service entails higher maintenance costs which may crowd out investment in new weapon systems.

As Japan expands its security role in Southeast Asia, new questions will arise.  Foremost among them is whether Japan’s new role will lead to greater stability or instability?  On the one hand, the absence of an adequately balancing force in Southeast Asia has given China a free hand to assert itself in the South China Sea, as marked by its massive land reclamation activities in the Spratly Islands.  Given how grindingly slow America’s rebalance to Asia has been, Japan’s security support could be just what the region needs.

On the other hand, any minor incident between Chinese and Japanese forces in the South China Sea could easily escalate tensions between their two countries.  Anyone who remembers the accidental collision between an American EP-3 surveillance plane and a Chinese J-8 fighter in 2001 can imagine how a similar incident between Japanese reconnaissance aircraft and intercepting Chinese fighters could spiral into a major crisis.  Let us hope deterrence prevails.

[1] Mynardo Macaraig, “Philippines and Japan hold historic naval drills in flashpoint waters,” AFP News, May 12, 2015; Manuel Mogato, Adam Rose, and Ben Blanchard, “Philippines, Japan coast guards hold anti-piracy drills,” Reuters, May 6, 2015.

[2] Louis Bacani, “Aquino: Beneficial if Japan can defend allies under attack,”, Jun. 24, 2014,

[3] Rosemarie Francisco, Manuel Mogato, Linda Sieg, Tim Kelly, and Nobuhiro Kubo, “Japan steps up maritime engagement with Philippines, Vietnam,” Reuters, May 12, 2015; “Japan – Indonesia Joint Statement: Towards Further Strengthening of the Strategic Partnership Underpinned by Sea and Democracy,” Ministry of Foreign Affairs of Japan, Mar. 23, 2015; Mitsuru Obe, “Japan Reaffirms Economic Ties With Thailand,” Wall Street Journal, Feb. 9, 2015; Bagus BT Saragih, “Indonesia and Japan improve military ties,” Jakarta Post, Jan. 30 2013.

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Obama’s Visit to Asia and U.S. Alliances

As foreign trips go, President Barack Obama’s visit to Asia in April 2014 was more important than most.  It was originally scheduled to coincide with the APEC summit in October 2013, but domestic problems prevented him from travelling at that time.  But even then, such a trip was needed.  Many in Asia already had become concerned over his administration’s commitment to its strategic “pivot” or “rebalancing” towards the region.  Both its economic and security legs had come to little.  Despite the administration’s goal to complete the Trans-Pacific Partnership (TPP) free trade talks in 2013, they were nowhere near a final agreement (and still are far from one).  Meanwhile, doubts emerged about the seriousness of the U.S. military rebalance.  A major part of that rebalance hinged on the U.S. Navy’s shift from a force that was equally balanced between the Atlantic and Pacific Oceans to one that would be tilted, 60 percent, toward the Pacific.  But given that the administration’s concurrent efforts would reduce the overall size of the U.S. Navy, many wondered whether its tilt would provide any boost to U.S. capabilities in the region.  And, more broadly, the United States still seemed more willing to engage itself in places like Libya and Syria, than in the East or South China Seas.

During the intervening six months, tensions in Asia have climbed even higher: from China’s declaration of an air defense identification zone over the East China Sea (November 2013) and its quasi-maritime blockade of the Philippine-held Second Thomas Shoal (March 2014) to Japan’s decision to build a new radar base on Yonaguni Island (April 2014) to North Korea’s artillery barrages and missile tests (March and April 2014).  Layered on top of all that has been the Ukraine crisis, in which the Obama administration has allowed Russia to violate Ukrainian sovereignty without any serious repercussions.  That itself follows Obama’s failure to act in 2013 after Syria crossed his “red line” on the use of chemical weapons.  Little wonder that such worrisome events have made U.S. allies in Asia nervous.

Such was the backdrop for Obama’s visit to Asia over the last week.  Without a doubt, his main objective was to reassure U.S. allies in the region.  Obama visited all three U.S. security treaty partners during his trip: Japan, South Korea, and the Philippines.

In Japan, Obama plainly stated that the U.S.-Japan Security Treaty would cover all territories administered by Japan.  That means the Senkaku Islands (or Diaoyu Islands in China) in the East China Sea would be defended, since they are administered by Japan (though his later reply to a press question as to whether his statement represented a “red line” in the East China Sea slightly muddied its impact).  Still, it was the first time that an American president directly addressed the issue.  That must have heartened Japanese Prime Minister Shinzō Abe.  And though there was no breakthrough in the bilateral TPP negotiations between Japan and the United States during Obama’s stay, some incremental progress was made in the days afterwards.

Obama then touched down in South Korea, where he warned Pyongyang against further military provocations.  Already this year, North Korea fired artillery into and short-range ballistic missiles over South Korean waters.  Now, there is the prospect of a North Korean nuclear test.  And so, Obama sought to do more warning.  He also worked to coax Japan and South Korea into overcoming their historical animosities.  Given that both countries and the United States must deal with the threat from North Korea (and perhaps China in the future), the administration hoped that America’s two security treaty allies could find a way to work together, rather than against each other.  Lastly, Obama’s presence in Seoul helped South Korean President Park Geun-hye demonstrate the strength of the U.S.-South Korean alliance to the Korean National Assembly.  That was important, since it soon will consider a major increase in its financial support of U.S. forces in South Korea, as part of a larger agreement reached seven years earlier in which wartime operational control of combined U.S.-South Korean forces would transition from an American general to a South Korean one.

Finally, just before Obama’s arrival in Manila, American and Philippine representatives signed a ten-year accord called the Enhanced Defense Cooperation Agreement.  Under negotiation for much of the last two years, that agreement was originally dubbed the Increased Rotational Presence Framework Agreement, largely because that was its intent: to enable U.S. forces to more regularly rotate through the Philippines in order to conduct joint exercises with the Philippine armed forces.  The final agreement also allows the United States to keep the equipment that it uses for those exercises at Philippine military bases.  The frequency of those exercises could be increased to the point at which there would be a near-continuous American military presence in the Philippines.  That would represent a meaningful change in U.S. force posture in the region and send a strong signal of American commitment to the Philippines.  The successful conclusion of the agreement was a victory for Philippine President Benigno Aquino III, who faced domestic opposition to it.  The agreement offers the Philippines some breathing space to rebuild its own external defense forces and pursue greater security cooperation with its Southeast Asian neighbors.

While in Southeast Asia, Obama also began to build new economic and security bridges to Malaysia, which had developed somewhat cozier relations with China than the United States since the 1990s.  Hence, it was notable that Obama and Prime Minister Najib Razak elevated their countries’ relationship to one of a “comprehensive partnership.”  (That matched the status which Malaysia conferred on China a year earlier.)  But little more was accomplished for the time being, due to popular resistance in Malaysia to the American-led TPP.

Upon Obama’s return to the United States, he can rightly claim that American allies in the region feel more reassured.  But American reassurances will ultimately need to be matched with American deeds.  Sadly, Obama’s reticence to persuade members of his own party to grant him “fast track” authority to streamline the TPP’s ratification process belies to some degree his own words of commitment.  An even bigger question is whether his words will impress China or North Korea.  No doubt, his words will be tested.  Questions about American commitments to its Asian allies were not fashioned overnight, nor will they be dispelled with a presidential visit.

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Diamond (Still) in the Rough: China’s New Charm Offensive in Southeast Asia

In early September, China hosted the 10th China-ASEAN Expo in southern Chinese city of Nanning.  There, Chinese Premier Li Keqiang glowingly characterized the last ten years as a “golden decade” of growing economic ties between China and the countries of Southeast Asia, all of which are members of the Association of Southeast Asian Nations (ASEAN).  He now foresaw that the next decade would be even better—a “diamond decade.”

Together with Chinese President Xi Jinping’s visits to Indonesia and Malaysia and his high-level meetings at the Asia-Pacific Economic Cooperation (APEC) forum that would soon follow, Li’s remarks appeared to mark the start of a new charm offensive in Southeast Asia.  China’s last charm offensive, despite Li’s depiction of a “golden decade,” had sputtered out at the end of that decade, overshadowed by China’s growing economic and political assertiveness on land and at sea.  Although China’s disputes with its maritime neighbors have drawn more attention, China also managed to irritate its neighbors across Indochina.  Its state-owned companies operating in the region have often been high-handed.  Their cavalier attitude towards displacing communities and destroying cultural relics contributed to Myanmar’s decision to halt the construction of the Myitsone dam in 2011—the first time any Southeast Asian country blocked a major Chinese-sponsored infrastructure project.  Meanwhile, China’s unrestrained hydroelectric development on its upstream stretch of the Mekong River has worried many downstream communities in Southeast Asia, even though their governments seldom voice their concerns.

Worse for China’s image is its maritime disputes with Southeast Asia, which were put under an international spotlight in 2010 when several ASEAN countries confronted China about its behavior in the South China Sea at the 17th ASEAN Regional Forum.  Regional concerns over Chinese intentions were further stoked by China’s increased interference of Vietnamese oil exploration ship; its months-long standoff with the Philippines over Scarborough Shoal in the spring of 2012; and its escalatory attitude toward Japan over the Senkaku/Diaoyu Islands since September of that year.  Finally, many believed that Chinese pressure directly contributed to rifts in ASEAN itself, when the 2012 ASEAN foreign ministers’ meeting failed to produce any progress on a multilateral code of conduct for the South China Sea or even issue a closing joint communiqué that mentioned one.  Surely such rising concerns have led the Philippines and Vietnam to accelerate the pace of their military buildups.

However, many Chinese believe they see the hand of the United States in China’s recently contentious relations with Southeast Asia.  They see American policy as either creating the environment that has allowed Southeast Asian countries to resist China’s interests or directly encouraging those countries to resist them.  In either case, they see the flare up of disagreements between China and its ASEAN neighbors as evidence of a larger American effort to contain China’s rise.  Hence, Beijing may believe that initiating a new charm offensive could not only capitalize on Southeast Asia’s continued view of China as a source of economic growth, but also diminish the effect of that American effort.  Whether Beijing’s new tack is momentary or longer lasting is too early to tell.

Yet China has already met with some success, perhaps enhanced as a result of President Barack Obama’s absence from the APEC meetings.  While it was not the first time an American president was absent, Obama’s absence came at a time when many Southeast Asians were looking for reassurance of American commitment.  At the very least, it allowed Xi to become the center of attention.  And Xi brought China’s “diamond decade” message with him.  He pointed out several areas of opportunity: upgrading China’s free-trade agreement with ASEAN, improving communications between China and Southeast Asian countries, strengthening financial cooperation across borders, developing maritime cooperation, and enhancing Chinese cultural exchanges with Southeast Asia.

Even before the APEC meetings, Xi visited Malaysia and Indonesia.  He heralded the advent of “strategic cooperative relationships” with those countries and was the first foreign leader to address the Indonesian parliament.  Then after the APEC meetings, Li arrived in Southeast Asia to continue China’s diplomatic efforts in Brunei, Thailand, and Vietnam.  In Brunei, Li discussed joint energy development.  In Thailand, he championed plans for a high-speed railway project connecting China to Singapore that has lain dormant for many years.  And in Vietnam—a country that has its share of maritime disputes with China—Li and his Vietnamese counterparts announced that the two countries would set up a joint maritime development working committee to ease the tensions in the South China Sea.

For their part, ASEAN countries seem to have responded positively (and possibly opportunistically).  Malaysia—perhaps sensing that the Philippines has, for the moment, halted China’s broader assertiveness in the South China Sea—may now view Chinese overtures as a chance to boost its own economy.  And while Thailand still sees the high-speed railway project as too expensive for it to undertake alone, it has encouraged China to contribute to the financing.

However, the one country in the region that China has not courted is the Philippines.  Instead, China seemed to go out of its way to isolate it.  Indeed, it is a strategy that some Chinese foreign policy scholars have advocated.  As if to underline the point, after China issued invitations to all the heads of state in Southeast Asia to attend the China-ASEAN Expo, it rescinded its invitation to Philippine President Benigno Aquino III.  And so, the Philippines was the only ASEAN country not represented at the event.  And so, even as China seeks to emphasize its kinder, gentler side, its steely side remains.  Relations between China and Southeast Asia may yet improve during the “diamond decade,” but mostly on Chinese terms.

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