ANALYSIS: The aftermath of the ASEAN 50th AMM: Whither the West Philippine Sea?

Jay L. Batongbacal

Posted at Aug 09 2017 05:30 PM | Updated as of Aug 09 2017 06:53 PM

The conclusion of the 50th ASEAN Foreign Ministers’ Meeting (AMM) underscores a major turning point in the disputes between China and the Philippines over the West Philippine Sea. Viewed against the previous week’s prelude of talks of joint development (and reported coercion against Vietnamese unilateral exploration) of petroleum resources, as well as post-meeting statements of foreign ministries, the stronger-yet-weaker statement on the South China Sea (SCS) disputes indicates that President Rodrigo Roa Duterte's (PRRD) course of action has already been set. The Philippines and China appear to have reached an accord on the issue, it only remains to put it in writing.

For a long time, joint development of petroleum resources had always been considered by observers and academics as a possible solution to the festering SCS disputes, because potential petroleum resources were assumed to be the primary driver of expansive unilateral claims. The problem, however, had been that previous experiences with joint development of petroleum resources were premised on the existence of legitimate overlapping continental shelf claims. PRRD’s revelation that discussion of joint development of Recto Bank are in an advanced stage, reinforced by MVP’s optimistic forecast of resumption of operations of the stalled Philex/Forum contract for it, indicates that the Philippines is nonetheless willing to accommodate China’s insistence on pre-emptive rights to participate in petroleum development projects anywhere in the SCS, the Philippines v. China arbitration award notwithstanding.

For a Philippine-China joint venture to take place in Recto Bank, a formal treaty establishing the framework and parameters for joint development is absolutely necessary. The nationalistic 1987 Constitution does not account for the exploration and exploitation of natural resources jointly with other States; it presumes that such activities are undertaken only either by the State or jointly with private entities (either Philippine citizens or at least 60% Philippine-owned corporations). While it may be argued that what the law does not prohibit is permitted (after all, there is no mention of natural resource exploration and exploitation with other States), neither is there any Philippine law that can bind another State and define how such joint exploitation may be carried out and implemented. A purely executive and mainly secret negotiation and agreement on this issue would be easily exposed to allegations of corruption.

The rapid approval of the Framework (actually a euphemism for a three-level topic outline) of the Code of Conduct in the South China Sea has been played up as major progress in the disputes. But in the absence of substantial content, and being a very sparse collection of thoughts put in writing rather than a set of clear rules, the Framework is no more than a political gesture meant to create an atmosphere of progress and cordiality in the midst of uncertainty. 

Whether the Framework mentioned an intention to make a legally-binding document or not is therefore immaterial and premature at this point. The Department of Foreign Affairs (DFA) has officially stated that substantial discussions have yet to take place, and it will take them at least until November to make any announcement about when talks will commence. This was subsequently undercut by Foreign Minister Wang Yi himself when he outlined preconditions for discussions about the start of talks: that the region should be “generally stable” and that there be “no disruption by outside parties.” No preconditions were ever suggested prior to approval of the Framework. Such a remark echoes the Philippines’ experience in 1999, when China said that it would be willing to discuss possible joint use of Mischief Reef with the Philippines “when conditions are ripe.” They never were.

China’s unilateral preconditions for discussion of commencement of COC negotiations places the onus on ASEAN to be on “good behavior” in the SCS as far as China is concerned. In the absence of agreement with ASEAN on the meaning of such preconditions, only China will determine whether they exist or not, and therefore, only China will determine whether COC negotiations will take place or not. 

It is not difficult to speculate that for the SCS to be “generally stable” and not subject to “disruption by outside parties” practically means that ASEAN or its members should not challenge China’s actions in the SCS even if they happen to be within their Exclusive Economic Zone EEZ/continental-shelf areas, or should not bring in external parties whether military allies and strategic partners or foreign commercial interests, and even if they don’t, external powers like the US, Japan and Australia should not conduct freedom of navigation operations anywhere in the SCS. The preconditions enable China to point to anyone else’s actions as reason for non-commencement of COC negotiations, thus calling into question China’s commitment to actually negotiate anything at all. This then is China’s diplomatic victory: it has maneuvered ASEAN to commit to a longer-term diplomatic track without even a firm start date or a timetable, and conditioned on behavior in accord with China’s perceptions. 

In this context, the small victories of reintroducing concern over non-militarization and land reclamation in the Joint Communique nearly evaporate. They no longer address China’s fait accompli of completing the facilities on and arming its finished and polished artificial islands, and instead are turned against all ASEAN claimants in case they do so (albiet in far smaller scales) in the future. Both Secretary of Foreign Affairs (SFA) Alan Peter Cayetano and Foreign Minister (FM) Wang described these statements as now being more inclined against parties other than China. 

In addition, SFA Cayetano’s and FM Wang’s separate descriptions of how the SCS section came into being, particularly his admission that the Philippines did not favor inclusion of those topics but Vietnam insisted, and that the section was the product of a compromise of majority and minority views, further dilutes their value as an ASEAN position. The whole point of consensus decision-making (rather than by voting) is to attribute the decision to the body as a whole and not be able to undermine it as being a position held by one or some members 

The strength of a consensus-based position lies in the singularity and solidarity of the group. Identifying the individual members’ positions in the decision-making removes the protection provided by membership in the group and exposes such members to reprisals and other targeted consequences. It also denies it the character of a common position and exposes it as a mere concession to the minority. 

It thus appears that the Philippines has discounted ASEAN’s importance in the handling of its disputes with China, as it has sacrificed ASEAN unity on the issue for the sake of continuing exclusively bilateral negotiations with China. The Philippines' initial opposition to Vietnam’s position for fear that it would harm the prospects of negotiations, and subsequently distancing itself from the agreed statements, support this conclusion. In addition, it should not be forgotten that the Philippines’ victory in the Permanent Court of Arbitration and its implications to the Southeast Asian region have again been largely ignored by ASEAN. 

Overall, the Philippines’ and China’s positions are now in sync and coordinated: joint development, bilateral negotiations, non-involvement of other parties, and recusal from multi-lateral avenues. ASEAN’s involvement in the territorial and maritime disputes is effectively neutralized and it is returned to its primary focus on regional economic integration. The actions of external powers like the US, Japan and Australia may even be considered by the parties as obstacles to the bilateral resolution of the dispute by individual claimants. 

Change has come.

----------

* EDITOR'S NOTE: Jay L. Batongbacal is an Associate Professor at the University of the Philippines College of Law and Director of the UP Institute for Maritime Affairs & Law of the Sea. He wrote this analysis/opinion piece for news.abs-cbn.com.