|President Benigno Aquino and his Chinese counterpart, Hu Jintao, are welcomed by honor guards at the North Hall of the Great Hall of the People in Beijing in August 2011. - Malacañang photo
Last of a 2-part report
MANILA, Philippines - The Philippines can prevent a zero-sum game in the Spratlys and force China to lay all of its cards on the table if Manila and other claimants of the disputed territory in the West Philippine Sea will submit full legal claims, a US analyst said.
The Philippines and other members of the Association of the Southeast Asian Nations (ASEAN) who are claiming parts of the Spratlys, the Paracels and Macclesfield Bank must all submit their baselines, claims to extended continental shelves, and claims to islands, said Gregory Poling, research associate at the Washington, D.C.-based Center for Strategic and International Studies's (CSIS) Southeast Asia Program.
"Vietnam and Malaysia took a step in this direction with their 2009 submission of part of their continental shelves to the United Nations. The Philippines took a step of its own that year with its law on baselines. Now they must all submit full legal claims," he told ABS-CBNNews.com.
"That will place China in the unenviable position of either clarifying its own claims, or losing any legitimate claim to be acting within the bounds of international law," Poling said.
China is claiming the entire resource-rich Spratlys, the Paracels and Macclesfield Bank based on what it calls as a "9-dash line" that Beijing created in 1948.
Poling said China may have to throw out its 9-dash line map under the UN Convention on the Law of the Sea (UNCLOS), which was signed in 1982.
In a July 6 analysis of the territorial dispute between China and other countries, Poling said China also has no legal basis to back its claim on Scarborough Shoal.
"For years the Chinese territorial claims in the South China Sea extended only to the Spratlys (Nansha, or 'South Banks') and Paracels (Xisha, or 'West Banks'). Any claim to other features, like Scarborough Shoal, was only implied in so far as they fell within the ambiguous 9-dash lines," he said.
"Then China extended its claim to the entirely submerged Macclesfield Bank via the imaginary Zhongsha, or 'Middle Banks,' despite there being no way under international law to claim title over a submerged feature as if it were an island," he added.
"Further, in recent years, as Beijing has tried to move beyond an overreliance on the indefensible 9-dash lines, Scarborough Shoal has been incorporated as part of Zhongsha. The fact that it lies hundreds of miles from Macclesfield Bank or that it appears on none of the historical documents China puts forth to prove its title to the Spratlys and Paracels seemingly does not matter," Poling said.
He told ABS-CBNNews.com that China is insisting on bilateral and not multilateral talks with other claimants such as the Philippines because Beijing knows it can intimidate the smaller countries.
Having to face a unified ASEAN, however, is another matter for China.
"Insisting on bilateral talks also lets China maintain the illusion that the disputes are simply disagreements between two equally valid points of view (e.g. Manila's vs. Beijing's, or Hanoi's vs. Beijing's). That fiction, that China’s position is equally valid under international law, is harder to maintain when it is 10 ASEAN countries on one side of the table arguing against the Chinese position," Poling said.
He said China risks being a pariah in the global community if Beijing uses its military to insist on its claim in the Spratlys.
"Beijing knows that it could easily occupy every disputed feature in the South China Sea, but it cannot do so without causing wide and probably irrevocable damage to its interests abroad," Poling said.
Binding Code of Conduct
To defuse tension in the region, Poling said ASEAN member-nations and China must agree on a binding code of conduct.
He said this will force all countries involved to behave and minimize incidents like the Scarborough standoff, as well as China National Offshore Oil Corporation’s tender of oil and gas blocks that are in Vietnam's waters.
"The key word here is 'binding,' which will require the ASEAN states to find the solidarity they clearly lacked last week," Poling stressed.
Despite China -- through its ally Cambodia -- blocking an ASEAN joint communique mentioning the Scarboroug standoff last week, the Philippine and Malaysian foreign ministries said all of the bloc's member-states have agreed on the elements of a code of conduct in the South China Sea to manage the territorial disputes in the region.
"The Philippines was successful in having its suggested main elements included to give the Code the substance it requires," Philippine Foreign Affairs Undersecretary Erlinda Basilio said Wednesday.
Kuala Lumpur has issued a similar statement.
"ASEAN Member States have agreed on the elements of the Code of Conduct in the South China Sea and are ready to begin discussion with China on the matter," Malaysia's Ministry of Foreign Affairs said. "The failure to issue the Joint Communiqué will not weaken ASEAN’s will and resolve to begin discussion with China in developing the Code of Conduct in the South China Sea towards ensuring peace and stability in the region."
Poling also said the bright spot in the mess at the ASEAN Ministers' Forum last week was that the ASEAN states presented a draft Code of Conduct to Chinese Foreign Minister Yang Jiechi.
"That text is still not out in the public domain, but US officials present in Phnom Penh who did see it said that they liked what they saw, "he said.
"Now the question becomes what China will do with it. Will they be willing to negotiate based upon ASEAN’s text?" he asked.
Cambodia, China to blame
Poling also believes that the blame on the ASEAN row last week has to be placed on host and current rotating chair Cambodia and outsider China.
"It was clearly not the Philippines that pushed too hard last week. All indications are that both Manila and Hanoi were willing to compromise on the language of the joint statement, eventually offering language that simply mentioned recent incidents," he said.
He said Cambodia, "at the behest of China," rejected any mention of Scarborough Shoal and CNOOC's oil project in Vietnamese waters.
"China certainly deserves blame for trying to intimidate its neighbors and undermine ASEAN unity, but such disunity serves China’s strategic interests. The same cannot be said of Cambodia, which should have had a short-term interest in the success of its own chairmanship of ASEAN, as well as a long-term interest in a strong ASEAN able to resist Chinese intimidation," he said. "Despite the best efforts of other parties, notably Indonesian foreign minister Marty Natalegawa, it seems that the Cambodians simply refused to budge. If fault is going to be assigned, it has to start with Phnom Penh."
Philippines, allies must step up
Poling said the Philippines must step up to the challenge of China knocking on its doorsteps.
This involves improvement of the country's naval and maritime capabilities, as well as diplomatic savvy.
"The Philippines should, and is, seeking to upgrade its maritime awareness capabilities and its civilian and naval assets in the long run," Poling said. "In the short-term, it will have to rely on bilateral diplomacy to manage incidents with China, and seek some sort of united front with most, if not all, of its ASEAN counterparts to counter China’s intimidation tactics."
Meanwhile, the Philippines' allies such as the US, Japan, Australia must help Manila strengthen its defense capabilities and insist on international law to settle the disputes in the region.
"They should continue to do the two things they can and are doing: 1) Help the Philippines increase its capabilities at sea via military sales, training, technology transfers, joint exercises, etc. 2) Continue to push China and all of the claimants to seek a resolution of disputes in line with UNCLOS," Poling said.
"If China is allowed to pursue claims entirely outside the bounds of UNCLOS, then it will fundamentally undermine a half century of international law. That simply cannot be allowed to happen, and all nations, including the United States, Japan, and Australia, have recognized as much with their strong support for a peaceful and legal resolution," he added.