8 August 2024, NIICE Commentary 9404
Kyle Dane Ballogan

On July 2, 2024, two weeks after the series of altercations in the West Philippine Sea and the brink of a serious conflict, the Philippines and China again held ‘preventive diplomacy’ through a Bilateral Consultation meeting in Manila. As expected, the Philippines and China counterparts agreed to “restore trust, rebuild confidence, and create conditions conducive to productive dialogue and interaction”.

Diplomatic meetings that intend to discuss or include the South China Sea dispute are not new for the Philippines and China. In previous administrations, diplomatic consultations have also been exhausted, for example, former presidents Fidel and Zemin’s scientific meeting in 1995; Arroyo and Hu’s close cooperation in 2004, and 2005; Aquino III and Hu’s consultation in 2011; and Duterte-Xi’s Bilateral Consultation Mechanism since 2017. These consultations, held by different administrations with different sea tides, similarly set the goal of resolving the dispute peacefully through bilateral friendly consultation and negotiation.

Insubstantial Sino-Philippine Consultations

Yet despite years of consultations and negotiations, the disappointment with diplomacy persists that the consultations exist not to consult and reconcile the differences but to stand out in asserting their respective claims. If not, they kept lines for open communication but only at times when the two parties knew it would be effective for preventive diplomacy.

Based on the timeline of the dispute, the recent consultation will result in two temporary solutions like the past consultations: temporary diffusion of the tension due to open communication that relaxes the conflict; and act as a ‘stopgap’ in China’s aggression. There is also a long-term result: grounding the parties into a habit of consultation that does not address the real problem but maintains the status quo. The status quo is that China claims almost the entire sea, undermining the legal claim of the Philippines. This poses a question as to whether the Philippines has to keep communicating with China in the form of “consultation” in the name of diplomacy or there might be that aggression again.

Solutions were also explored before apart from meetings and consultations. However, none of these solutions have sufficed based on the recent developments of the dispute, perhaps, because of the choice of the solution itself or within the implementation of the solution. It is not that they completely failed, but they must be revisited by the parties.

As for mediation and arbitration, no third party has yet been sufficient to intervene in solving the dispute. Even ASEAN, of which four members are claimants in the South China Sea, will not mediate because of the ASEAN Way of non-interference, and its non-monolith structure. ASEAN’s united position in 1992 tried it before through the ASEAN Declaration, but China preferred bilateral over multilateral negotiations. China also rejected the 2016 Hague Tribunal ruling indicating its unwillingness to third-party participation or what the CCP perceived as interference in the dispute.

As for the establishment of a Code of Conduct that aims to conduct a win-win development like a joint exploration, but this can hardly be attained when the claimants themselves who the document should have bound are prone to unilateral actions and trust issues. Not even the Declaration of Conduct (DOC) signed by all claimants in 2002 has bound them to comply with provisions of UNCLOS and the principle of self-restraint.

Regarding the security alliance, more is needed than the Philippines having the option to invoke the Mutual Defense Treaty with the United States, as well as the minilateral patrols with allied countries. It is also not enough that the Philippines has a frontal assertive transparency approach and surveillance by just patrolling and showing its presence in WPS while being regularly harassed by China’s Coast Guards. It will cost time and resources to dissuade China and surrender its claim in the WPS through Philippine presence when China can easily dispel such presence on the ground.

Extending the Build Better More

To deter China’s aggressive claim while building a long-term gain for the Philippines is also building a long-term presence in WPS. The Philippines should explore extending the government’s infrastructure development program from land to the Philippine Sea. The Philippine government must externalize its so-called Build Better More (BBM) in the Philippine waters by installing bases or artificial islands to increase projection. The reclamation of artificial islands will serve as a peaceful protest against the reality that the overlapping claims will not change despite WPS’ legality. Moreover, a reclamation will lead the Philippines to compare the treatment of China to other state claimants, especially Vietnam which was able to conduct reclamation without China’s reaction compared towards the Philippines. The Philippines was just resupplying but received an extreme response. However, constructing artificial islands in the WPS must not be purely militarized in line with the possible security dilemma and escalation perceived by the neighbors. As such, employing Filipino fisherfolk with the protection of the military will maintain a quasi-civilian approach that will justify the economic purpose of an Exclusive Economic Zone.

Ultimately, in Philippines v. China, the Hague Tribunal awarded the Philippines very clearly:

“In combination, they endow the coastal State—which in this case is necessarily the Philippines—with exclusive decision-making and regulatory power over the construction and operation of artificial islands, and of installations and structures covered by Article 60(1), on Mischief Reef. Within its exclusive economic zone and continental shelf, only the Philippines, or another authorized State, may construct or operate such artificial islands, installations, or structures.”

Based on UNCLOS, the Philippines has the exclusive right to construct and operate artificial islands over its Exclusive Economic Zone, whether on the Mischief Reef or not.

A Final Note

However, the Philippines is militarily and financially poor. Thus, there is a need for support from the allied countries. This way, they support the Philippines without directly targeting or isolating China. Besides, their role is not to eliminate China but to rather be a good faith and reliable security provider for the Philippines and the Indo-Pacific that will counter China’s expansionism. But there is a challenge here: to clarify that such support is not to be understood as a zero-sum game that eventually leads to a war proxy.

Finally, on June 27, President Marcos Jr. said that the Philippines “have to do more” but did not specify what “more” means. Hence, I think he should build more. The Philippines has to erect something different that will supplement its efforts in the past years in securing support and alliance with relevant powers in the Indo-Pacific region, invoking the Hague ruling as a legal victory, and internationalizing the dispute for global care.

Kyle Dane Ballogan is a Research Intern at the Nepal Institute for International Cooperation and Engagement (NIICE).