This was the main message of the lecture given by Dr. Jay Batongbacal, an expert on international marine environmental law and Law of the Sea, at the Ateneo de Manila University Professorial Schools at the Rockwell Center in Makati Wednesday. His lecture entitled “Maritime Philippines in the Asian Century: Global Environment Change, Regional Economic Integration, Geo-political realities, and Contested Legal Spaces” was part of the 11th Jaime V. Ongpin Annual Memorial Lecture on Public Service in Business and Government.
In his lecture, Batongbacal, also professor at the UP College of Law, argued for a serious rethinking of the “compartmentalization policy” – the notion of separating territorial maritime boundary issues from the broader context of state to state relations – saying that this has resulted in addressing the maritime boundary problems in a “vacuum, as if it exists solely and separately without regard to its potential impact on other national interests and other relations with other states.”
He said that this policy was reflected in the recent speeches by Foreign Affairs Secretary Albert Del Rosario, which he said echoed the policy of his predecessors about how the West Philippine Sea issue was not an obstacle to the development of other relations and that it was not the subtotal of the Philippines relations with China.
“The South China Sea indeed may not be the sum total of our relations with China but it is certainly a fraction that is very serious and important enough to generalize the entirety of it,” Batongbacal said.
China claims sovereignty over nearly the entire sea, but the Philippines, Vietnam, Brunei, Malaysia and Taiwan claim islands, reefs and atolls in the area believed to have vast deposits of oil and gas.
In April, a standoff between the Philippine and Chinese ships happened at the Scarbrough Shoal, a rich fishing ground west of Zambales province that is within the Philippine EEZ. Philippine ships were ordered to go home due to stormy weather, but President Benigno Aquino III had said that ships would be sent back once the weather clears.
Meanwhile, Chinese maritime vessels were reportedly still in the area, and the Chinese had cordoned off the mouth of the shoal.
Batongbacal said the Scarborough Shoal standoff was an example that “demonstrates the dangers of dealing with the issues of the disputes completely independently of other political, cultural, and economic relations.”
He noted how it was important for stakeholders to determine the Philippine’s interests in the area and what it wants to get out of its claims to the boundaries, saying that important issues posed by geopolitical realities, global environmental change, and marine resource development should also be primarily considered
Loss of trust and confidence
Batongbacal said that one of the most worrisome aspects of the whole affair for him was how the discourse was reduced to a “public, purely legalistic sparring match,” between the two countries and exacerbated the loss of trust and confidence between them.
He noted that though he thought it was not deliberate, he believed that it “was less than circumspect” the kind of statements issued on a daily basis by officials from the Department of Foreign Affairs (DFA) who were authorized to speak on the matter.
“Seeing how it was played out, it was clear to me that diplomacy took a back seat to an adversarial, litigation mode,” he said. He noted that statements being issued on the disputes focused on discussions about “raring parties to go to trial,” and that these were not the kind of discussions where parties were actually “trying to sit down, be calm, and really communicate with each other.”
“The public loss of trust and confidence, heightened level of suspicion, and restrain down to people to people relations have definitely been felt and intensified,” he said. He noted that based on his study of the chronology of events that transpired, he found out curiously that there were actions and reactions from the foreign ministers of both countries all being given on the same day.
“This is because they were reacting directly to Internet statements from sites, commentaries, and blogs….And they were not the kind of helpful, deliberate language that we usually expect from diplomatic conversation and I think that really contributed to the degeneration in the discussion,” he said. He added that it was important for parties to maintain open diplomatic channels for them to conduct clear conversations.
He also said that he hoped the country would learn from the consequences of the controversy over the reported back-channeling made by Senator Antonio Trillanes III, saying that it was something that really puzzled him and that it really should not have happened.
He echoed the sentiments made by officials that while back-channeling was a normal diplomatic practice, it needed to supplement the formal diplomatic channels.
“This one clearly was taking place independently…… it was not a correlated back-channel effort. What you have there is potential of getting diplomatic signals really crossed and confusing and adds even more to the possibility of tension,” he said.
Realistic solutions
In describing the current state of the disputes between China and the Philippines, Batongbacal said he thought that both parties were placed in a situation where “each one believes that the other would take unilateral action and in that case, whoever gets the high ground and take advantage of the situation, wins.”
“Obviously China is not leaving….That’s a situation that is to our disadvantage and it happened because of the lack of trust or failure of communication,” he said.
Manila had been considering the legal option of bringing the maritime dispute to the International Tribunal on the Law of the Sea (Itlos), stressing the need for international mediation to resolve China and the Philippines’ respective claims over Scarborough shoal. China, however, has rejected the proposal.
The United Nations Convention on the Law of the Sea (Unclos), meanwhile, provides for the right of coastal states to manage and develop resources within its 200 nautical miles Exclusive Economic Zone or Continental Shelf. The Philippines claims that Scarborough Shoal is within this 200 nautical miles EEZ or continental shelf of Luzon Island, and that it has effective jurisdiction and sovereignty over the area.
“Regardless of reasons by the littoral states, a basic element required in any form of cooperation to address the problems of maritime space is a measure of good relations, trust, and confidence, clarity and reliability, and recognition and accommodation of interests,” Batongbacal said.
“Without these elements, not even the UNCLOS (United Nations Convention on the Law of the Sea) can effectively resolve even a small problem of ocean use,” he added.
He said that under international law and international dispute settlements, it was necessary for both parties to have good relations and that the two countries had not created the foundation necessary to take the issue to a third party.
“It’s not that it’s difficult to argue on boundaries….your main problem is getting the other party to agree to go there with you and then if he doesn’t your next difficulty would be to convince the court that you could proceed with the case in the absence of the other party. There are many obstacles,” he said.
He argued that at the moment, the more realistic strategy would be to push for access arrangements – for Filipino fishermen to continue to fish in the contested areas and for the country to be able to undertake exploration activities – as initial steps. He said that the country should work out the problem of how parties would be able to start trusting each other, and the kind of functional cooperation and arrangements that would be needed to “keep that trust and confidence and build on it later on.”
White Paper on Managing the West Philippine Sea
Batongbacal was part of the informal expert group that had recently recommended to the Aquino administration the adoption of a national policy for the management of the country’s territorial dispute with China in the West Philippine Sea. An abridged, public version of the “white paper” submitted to Malacanang, the DFA, Department of National Defense and National Economic and Development Authority (Neda), among other governmental agencies, was published in the Philippine Daily Inquirer (https://opinion.inquirer.net/37294/managing-the-west-philippine-sea).
Asked about the status of the government actions on the recommendations, Batongbacal said that it seemed that there was “a bit off trickled down-effect when it comes to this paper.”
He narrated that when he went to the DFA office of the consular affairs Tuesday, he met a person from an important maritime agency who directly asked him for a copy of the paper because the agency did not get it from the “higher-ups.” Batongbacal, however, declined to give the name of the person and the maritime agency.
He said that based from the feedback they had received, officials from the DFA and Malacanang had accepted the paper and had discussions on it.
Asked for reactions, DFA spokesperson Raul Hernandez said that DFA officials attended the various public fora organized by the group and gave inputs for the paper. He added that the DFA was “reviewing the paper and studying its recommendations.”
Batongbacal emphasized that the purpose of the white paper was not to blame an agency or be against any agency’s position, but that it was a call to seriously identify and address the long-standing shortcomings in terms of policy guidelines and deliberations which had been creating problems in consistency and clarity of dealing with the West Philippine Sea dispute.
“It’s not about being against any one agency’s position, it’s about laying a framework for doing better. We are not there to criticize we’re there to help,” he said.
“And we feel that there are certain whole range of questions and policy, a whole lot of homework that needs to be done,” he added.