Post Arbitration: Duterte’s joint development and other policy approaches to the West Philippine Sea - Blueboard by Alma Maria O Salvador

March 13, 2018

Recently, the Philippines under President Rodrigo Duterte announced its plan to pursue “co-ownership” or more accurately, the joint exploration of portions of the South China Sea (SCS) with China, a year  after the Permanent Court of Arbitration (PCA) has awarded the Philippines with the ruling that invalidates China’s nine dash lines  and artificial island construction. Proposed areas include the west of Calamian Islands and the Reed Bank, off the waters of Palawan.
Unlike the Calamian Is which are not claimed by China,  the Reed Bank,  while it lies within the Philippine EEZ as far as the PCA ruling is concerned,  is contested by China.   Also known as the Recto Bank,  this maritime feature  has gained its popularity  when it was mentioned in former President Benigno Aquino III’s quotable SONA of 2011, “What is ours is ours; setting foot on Recto Bank is no different from setting foot on Recto Avenue.”  
Asserting state jurisdiction in the maritime than on land domain is more problematic. In referencing the UNCLOS, Professor Sam Bateman highlights  that dissimilar attributes of land and water domains result to different modes of jurisdiction.   Because fixity is absent in the maritime  domain, the state exercises sovereignty over the territorial sea but  it should not impede other states’ rights to innocent passage.  By contrast,  the state exercises sovereign rights to explore, exploit, conserve and manage the resources in the EEZ, where state jurisdiction is far less absolute than in the territorial seas.
Economist Elinor Ostrom  offers a relevant perspective using  the commons theory.  The “commons” such as public goods are universal access goods. Excluding persons from accessing values such as justice, security and health is difficult if not impossible.  The world’s coastal and marine fisheries, forests and airspace, on the other hand are differentiated  as common pool resources (CPRs). Unlike public goods, the utilization of CPRs, if unsustainable leads to degradation or depletion and subtracts future benefits from potential users.   High subtractability of benefits and non-excludability of users, thus are two of the important features of the global maritime  commons including the EEZ.
Given the above, it seems that joint development of the South China Sea common pool resources is the next best option for the Philippines.  At the height of the Philippines- China conflict over the Scarborough Shoal in 2012, no less than  Law of the Sea specialist Jay Batongbacal has emphasized how crucial cooperation is among littoral states  that border enclosed and semi-enclosed seas such as the SCS. Academics, then proposed cooperative measures as a de-securitizing action of lowering tensions and of down playing of non negotiable territorial sovereignty claims.  Joint resource development concretizes maritime states’ cooperation in resource utilization and exploitation most crucially in cases of overlapping EEZs and where maritime boundary delimitations do not exist between or among concerned states.   As non absolute sovereignty zones, states, according to the UNCLOS are duty bound to cooperate in the use of EEZs.
Joint development that’s constitutional is a pragmatic counterpart response to the continuing  power asymmetry in the West Philippine Sea.  To date, the Asia Maritime Transparency Initiative has captured the continuing fortification of Fiery Cross, Mischief and Subi reefs—as China and ASEAN foreign ministers agreed to resume talks on the much needed framework for a code of conduct.  Indeed, while post arbitration has created a  situation that’s less tense, the same set of geopolitical  variables govern the SCS and Ph-China relations.
Given this context, two other elements in addition to joint development characterize  President Duterte’s multi-layered response.  After choosing to shelve the ruling for a year,  Duterte obviously has moved towards bilateralism yet with  multilateralism  and non (US) intervention.  Bilateralism is reflective of his pivot to China and the latter’s preference but also of ASEAN’s inability  to mobilize multilateral support for the 2016 ruling.   Along side bilateralism, the Philippines has taken part with ASEAN and China in the 2017 negotiations for a multi-lateral framework for a code of conduct.  This is said to have introduced a relevant institution for preventing incidents at sea, considered by navies as one of the more efficient confidence building measures in the maritime domain.  However, what makes for this weak form of multilateralism are the greater trust issues that outweigh the operationalization of confidence building measures.
In choosing to take these policy directions, President Duterte’s government has to hurdle specific constitutional requirements. And just as challenging,  it should learn to address the realpolitik and trust challenges of dealing with China’s  sovereignty conditionality in the context of the post arbitration ruling.
Alma Maria O Salvador, PhD is an Assistant Professor of Political Science at Ateneo de Manila University.