China has become a master at pushing right up to the boundary of internationally acceptable behavior, then briefly crossing over the line, retreating, and doing the same again, until it establishes a 'new normal' for what is deemed to be acceptable. This has been seen for some time in a variety of areas, whether it be compliance with WTO rules or applications of international law. Given the recent saber rattling between China and Vietnam over national maritime boundaries and the ongoing muscle flexing over the Spratly Island Archipelago, it appears China is incapable of speaking the vernacular of international diplomacy in a manner commensurate with the expectations of responsible nation states.
The Spratly island group has long been a source of conflict between Brunei, China, Malaysia, the Philippines, Taiwan, and Vietnam. They comprise 100-plus islands, atolls, and shoals in the southern part of the South China Sea. Not only are the Spratlys at the heart of one of the world's busiest sea lanes, they are known to hold rich oil and natural gas reserves -- so much so that in 2002 a Declaration of Conduct of Parties was agreed between China and the ASEAN to demilitarize the islands, maintain the status quo, and to pave the way for joint deep sea oil exploration.
Among the six claimants, China, the Philippines, and Vietnam have been the most assertive. The Philippines predicates its claim under the theory of occupation and discovery since 1947, and Vietnam, through a broader (and less particularized) French title in the 1920s. At first, China attempted to lay claim to the entire "South China Sea" -- forming what on a map looks like a long tongue, extending hundreds of miles outside the country's exclusive economic zone -- and tracing its title, according to the Chinese, back to the Han Dynasty in the 200 B.C. era. It was only in 1992 when China first attempted to occupy one of the eight islands in the Spratlys' -- an odd way of addressing a sacred right, given that China is not known for simply ignoring its historical land claims.
Manila has accused Beijing of at least six intrusions by Chinese fighter aircraft and vessels in "Philippine territory" and its own "exclusive economic zone" since February of this year. Liu Jianchao, the Chinese Ambassador in Manila, called upon the Philippines to halt all oil exploration without Beijing's prior consent. Just Monday of this week, under the guise of naval exercises, Viet Nam fired rounds of artillery from its coastline after Chinese vessels allegedly disrupted its own economic activities in the western portion of the Spratlys.
In classic black letter law fashion, the Philippines, a long-time ally of the United States, quickly turned to the provisions of its Mutual Defense Treaty with the United States. Signed in 1951, the treaty requires the parties to "act to meet the common dangers" in the event of an "armed attack." The Treaty's operative phrase, "armed attack," may not qualify as a semantic equivalent of "threat or use of force" under the Geneva Conventions, but couched in antiquated Cold War vernacular, the Treaty also stresses that any such "armed attack" should first be reported to the United Nations Security Council (of which China is a permanent member). This implies that multilateral diplomacy and negotiations should be exhausted before the parties may resort to reasonably necessary force. The treaty contemplates an armed attack on a "metropolitan territory" of either party, or one of its "island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific." In short, ownership over the Spratlys isn't clear cut, and the United States may find it premature to take too strong a position in assuaging its ally, the Philippines, whenever Treaty obligations are invoked. This becomes more complicated given that China has pre-empted possible U.S. entry into the fray by warning America to stay out of this 'regional' conflict.
Whether considered in its entirety or any of its main islands, it is unclear whether the Spratlys can be categorized by the international community or the international courts as a "metropolitan territory" or "island territory" of the Philippines. It is also doubtful whether China, in making its case, can hearken to the sheer nominalism of the "South China Sea" on the map (which India of course wouldn't dare do with the "Indian" Ocean). Meaningful bilateral negotiations presuppose equal bargaining power, but this is clearly not the case between China and the Philippines. Can multilateralism be the key? Vietnam tried to take this route via the ASEAN when it served as Chair of the organization last year -- a strategy which China rebuked. Instead, and despite accusations of high handed unilateralism, Beijing, along with its ambassador in Manila, seems to be disposed to a bilateral approach, even today.
The governing international legal framework - the UN Convention on the Law on the Seas (or UNCLOS) -- which entered into force in 1994, has been criticized as controversial and its own grievance machinery, ill-equipped. There is no doubt that no less than six states are jockeying for the largest chunk in the Spratlys with regard to economic interests, which makes the Spratlys an international issue ripe for adjudication under international law. Beyond UNCLOS's built-in grievance system, contestants may turn to the International Court of Justice (ICJ) at the Hague. This will 'legalize' the issue, and will surely take long to adjudicate.
If the Philippine government wishes to field a good case, it should not presume that the United States will unconditionally support its position. The Philippines should avoid spending its political capital with the United States on this issue, which was largely built upon historical sentimentalism between the two. The United States has changed a lot since 1951 and the Cold War, and more so since the Americans formally recognized Philippine independence in 1946 in the aftermath of war. The United States considers itself a dynamic player in international politics and has also signed quite a number of mutual defense pacts since the second world war, two of which are with Japan and South Korea - two countries which might choose to stay close to the Spratly question.
Harry Thomas, the U.S. Ambassador in Manila, recently announced "we will do whatever we are asked" -- apparently referring to the Philippine position against China -- but he also hedged his words in a manner diplomats usually do. It might be more prudent for Philippine President Aquino to take a more prudential path and avoid citing the martial provisions of the U.S.-Philippines defense pact, because much has changed since Taft and MacArthur were on Philippine soil. President Aquino may also need to keep his own house in order and have his cabinet speak as one voice, given that his foreign affairs department and armed forces seem to have taken divergent views on this subject. President Aquino needs to take into account the nature of realpolitik whenever he or his deputies try to find succor among the Americans, especially in light of the fact that the Philippine Senate voted to dismantle the American military bases and abrogated the 1947 US-PH Military Bases Agreement in the early 1990s, all in the name of nationalism and constitutional policy.
Aquino's best bet would probably be the ICJ, because in terms of legal evidence, the Philippines may have the strongest case among the big three. Since 1947, Philippine settlers and explorers have occupied main portions of the Spratlys, not just for livelihood or economic pursuits, but for residence. While known under different names under different nationalities, Filipinos have always referred to the Spratlys as the "Kalayaan" (Freedomland) Island Group. Then President Ferdinand Marcos issued at least two Presidential Decrees in the 1970s annexing and confirming the Kalayaan islands as a municipality of Palawan, a major province of the Philippines. In particular, the Municipality of Kalayaan was created under PD 1596 on June 11, 1978. Local municipal elections have been held in key Kalayaan towns since then, and even during the last election year. These are concrete and uninterrupted assertions (nay, exercises) of sovereignty which are recognizable by international legal norms, whose evidence has thus far remained undisputed. These are plausible claims which go beyond the mere assertion of rights as holders of exclusive economic zones, a weaker category under UNCLOS, and they may therefore qualify as direct sovereign claims under actual exercises and possession of popular sovereignty, which is the highest caliber of territorial claims.
The Philippines may also pursue the Spratlys dispute concurrently with the UN Security Council, not under the 1951 mutual defense pact but perhaps under a direct appeal to the UN body. This would place China, a permanent member in the Security Council, under heightened scrutiny. This would also allow the Philippines to showcase its legal talent - which is apparently being exported to places like Singapore and Beijing - if it were to advance its case under notions of universality and the Rule of Law.
This is not the first Filipino boxing match with China. The bus hostage tragedy in August last year was a diplomatic and security nightmare (see 'The Bus Debacle and the Philippine Psyche,' Business World, August 29, 2010). Rallies were held throughout China in protest of the botched rescue of Chinese tourists taken hostage and murdered by a disgruntled former policeman in the City of Manila. The Spratlys and the bus tragedy, taken together, represent both the peril and promise of the Philippines today, but also create the foundation for ongoing tension between China and the Philippines.
The Spratly issue is ultimately a litmus test for if, and when, China may act not as an 800-pound gorilla that may do as it pleases, but rather as a responsible member of the international community that exercises discretion and judiciousness in its actions. The backlash that was seen in the streets of Vietnam against China this past weekend as a result of its actions along Vietnam's maritime border may easily be replicated in the Philippines and elsewhere in Asia in due course. If China is smart, it will play its hand in court, rather than on the high seas. As it continues to get its footing in the international arena, China will come to realize the wisdom of playing the game in an honorable manner, consistent with a nation of its stature.
Daniel Wagner is CEO of Country Risk Solutions, a political risk consulting firm based in Connecticut (USA), and senior advisor to the PRS Group. He can be followed on Twitter here. Edsel Tupaz is a professor of international and comparative law, based in Manila. He can be followed on Twitter here.