Rules-Based Regimes and the Scarborough Shoal Dispute

JURIST Columnist Edsel Tupaz of Tupaz & Associates says that if the Philippines unilaterally takes China to an international court over the Scarborough Shoal or Spratly Islands dispute, the US is unlikely to enforce a judgment in the Philippines' favor despite the two countries' longstanding ties...

Conflict between Chinese and Philippine naval ships in the waters of Scarborough Shoal is now on its fourth week. As of May 5, intelligence reports indicate that at least 30 Chinese vessels, including three government ships, are present in and around the small island group located 124 nautical miles from the Philippine province of Zambales and more than 500 nautical miles from the nearest Chinese port of Hainan. The standoff was triggered on April 10 when Chinese vessels blocked the Philippine navy from arresting Chinese fishermen for alleged illegal fishing activities within the Philippines' 200-nautical mile exclusive economic zones. Even as Philippine President Benigno Aquino III encouraged fishermen to venture into the disputed waters of Scarborough ("Panatag Shaol" under the local vernacular), intelligence reports have indicated significant increases in the Chinese presence there.

During last week's "2 + 2" summit between the Filipino mission and the US State Department, both Philippine Foreign Affairs Secretary Albert Del Rosario and US Secretary of State Hillary Clinton reaffirmed their countries' "commitment" to "jointly explore" the ways in which the defense capabilities of the Philippines can be strengthened to establish a "minimum credible defense posture" through "robust cooperative security assistance programs." According to a joint statement which was issued following the summit, "the US intends to transfer a second high endurance (Hamilton class) cutter to the Philippines this year" in keeping with that commitment.

Did the April 29 summit, and the joint statement that followed, signal a meaningful shift in US foreign policy in Asia? Or should this joint statement be dismissed as something more ceremonial given the two countries' historical, if not cultural, ties since the late-nineteenth century? It ought to be recalled that from 1898 to 1946, the Philippines was a non-state territory ceded by Spain to the US through the Treaty of Paris of 1898 in the aftermath of the Spanish-American War. Along with the Philippines, Spain ceded the territories of Puerto Rico, its possessions in the West Indies, Guam and all claims to Cuba, in light of the Teller and Platt Amendments. On July 4, 1946, the US recognized Philippine independence and sovereignty through the Treaty of General Relations Between the United States of America and the Republic of the Philippines.

While July 4, 1946, marks the formal date of relinquishment of American sovereignty, it could be said that all other ties, from general economic relations to political reciprocity rights, did not significantly change until US-backed Philippine President Ferdinand Marcos declared martial law during the 1970s. Despite the declaration of martial law, relations between the two countries remained steadfast and have arguably been strengthened through various extant commitments. One such agreement is the US-Philippines Military Bases Agreement of 1947, which was signed barely a year after the declaration of Philippine independence. From 1947 until the country's post-martial law period in the 1990s, the Philippines has housed as many as 23 US bases, including the two of the largest US bases in Southeast Asia — Subic Bay Navy Base and Clark Air Force Base. In 1951, the US and the Philippines inked a Mutual Defense Treaty which requires each party, pursuant to Article IV, to mutually "recognize[] that an armed attack in the Pacific Area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes."

While the Philippines was noticeably reliant on the US for military assistance and defense during the Cold War, popular pressure led the Philippine Senate to decline to renew the bases agreement in 1991 and US forces withdrew. However, like the countries declaration of independence in 1947, the end of the bases agreement was not an indication of any significant withdrawal of US presence in either the Philippines or Asia in general. The old framework was simply replaced by a new one under the auspices of a Status of Forces Agreement (SOFA) between the US and the Philippines. Coined as the Visiting Forces Agreement (VFA), the document resembles, and functions very similar to, the NATO Status of Forces Agreement that has served as the model for US military and diplomatic practice in making similar agreements with the likes of Japan and South Korea.

The conflict over Scarborough Shoal forms part of a larger maritime — nay, territorial — dispute over the ownership of the entire "South China Sea" or "West Philippine Sea" depending on one's political vantage point. In two prior works in JURIST, The Law of the Seas and the Scarborough Shoal Dispute and The Law of the Seas and the Spratly Islands Dispute, I attempt to interface the more particularized agreements, such as the 2002 Declaration on the Conduct of Parties in the South China Sea between China and the Association of Southeast Asian Nations (ASEAN), with the UN Convention on the Law of the Sea (UNCLOS). I also parlay their norms with the grander, more generalized norms of the UN Charter.

The current Philippine diplomatic posture towards China seems to be a combination of, on one hand, drawing in US presence through joint military exercises and war games, such as the recent "Balikatan" exercises, that are dangerously close to the very areas under dispute, and on the other, invoking any and all "rules-based" regimes one can think of. Despite strong ties between the US and the Philippines, and the many layers of bilateral commitments between the two states, it remains to be seen how any rules-based regime can be acceptable to Beijing. Last week, China rejected Del Rosario's request for arbitration or mediation under UNCLOS — or any other framework — as a potential avenue to diffuse tensions over Scarborough and the Spratly Islands. Presently, Del Rosario is threatening to take China to an international court unilaterally, meaning that they intend legal action regardless of whether China chooses to consent to be bound under the orders and judgments of such a court. Arbitration tribunals included. Can such an advisory opinion hold any sway these days? Given increasing US economic investment into Chinese markets, it seems unlikely that the US will give their unconditional support for the Philippines' cause. It also seems unlikely that, beyond selling second-hand planes and ships to the Philippines, plain old sentimentalism will drive the US into a gunfight between its old-but-small ally and an unwieldy, hungry dragon.

Edsel Tupaz is currently a private prosecutor of the House prosecution panel in the impeachment trial of Philippine Chief Justice Renato Corona. Tupaz is a public interest lawyer and law professor whose expertise lies in comparative constitutional law and policy, teaching at law schools in the US and the Philippines. He is a graduate of Harvard Law School and Ateneo Law School.

Suggested citation: Edsel Tupaz, Rules-Based Regimes and the Scarborough Shoal Dispute, JURIST - Sidebar, May 7, 2012, http://jurist.org/sidebar/2012/05/edsel-tupaz-scarborough-ii.php.



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