Chinese shadow play

After a month-long standoff with the Philippines over the Scarborough (Panatag) Shoal, China announced on May 13, 2012 that there will be a two-and-a-half month ban on fishing by Chinese fishermen in the South China Sea, including the area of the disputed shoal. The Philippines returned the gesture and imposed an identical ban in the area.

These announcements came amid reports that both countries have gone back to the negotiating table following the tense saber-rattling. It also came after Washington declared that it would remain neutral in the ongoing territorial spat between the two Asian countries, despite its half-a-century-old Mutual Defense Treaty with the Philippines.

China claims title to the rock and the waters surrounding Scarborough Shoal on the basis of discovery and ancient title. The Philippines raises similar claims, including a 1730 map indicating the rock to be within its archipelago. But the Philippines also claims it as part of its 200-nautical-mile exclusive economic zone under the United Nations Convention on the Law of the Sea. This gives it the sovereign right to exclusively engage in fishing in the area.

Philippine officials should beware and disabuse themselves of any notion that the no-fishing policy China just announced means a Chinese retreat from Panatag. In fact, it is a classic Chinese shadow play, with Manila being lured back into the table of negotiations.

The Philippines’ policymakers should realize that the country can only get nowhere in negotiations with China which, by all indications, would prefer to let the controversy as is, that is, pending and unresolved rather than risk international arbitration with no clear positive outcome for itself.

The Scarborough Shoal is not China’s only unresolved territorial dispute in the region. It also has an unresolved dispute over the Spratly group of islands, which in addition to the Philippines and China, is also being claimed in whole or in part by Vietnam, Malaysia and Taiwan; the Paracels group of islands, which is disputed by China and Vietnam; the South Kuril islands, which are claimed by China, Japan and even Russia; and Senkaku Island, which is claimed by China and Japan. It also has unresolved land territorial disputes with its neighbors India and Bhutan.

In all these controversies, there are two common observations to be had: one, the Chinese insistence that these be resolved bilaterally; and two, the Chinese rejection that these be settled by international tribunals either by the International Court of Justice, the International Tribunal for the Law of the Sea, or even by the Permanent Court of Arbitration. While ad hoc arbitrations within China have become the way to go for multinational companies doing business in China, ad hoc arbitrations to settle these territorial disputes involving China are literally unheard of.

Perhaps, part of the reason China has opted out of international adjudication to resolve these disputes is a painful historical experience it suffered in the late 1800s. It may be recalled that as an offshoot of the notorious “opium wars” of the era, China was humiliated into entering into the so-called unequal treaties of Nanking and Tientsin. These two treaties legitimized the opium trade in China, opened China to the influx of foreign goods, and even led to the ceding of Hong Kong to the British. This has led Chinese policymakers to be generally wary of the West and, at least, suspicious of international law as developed by western powers.

This theory appears to be confirmed by Maj. Gen. Zhu Chenghu, director general of the Research Division of the National Defense University of China. In a broadcast on Chinese national television on May 13, 2012, he declared that the recent standoff is in fact a “proxie fight” between China and the United States. The Philippines, owing to its having been a colony of the United States in Asia, is obviously perceived by Beijing to be nothing but a dependency, perhaps, even a lackey to the Americans. In fact, the thaw in the controversy only began when the United States manifested its neutrality on the dispute.

It is crucial hence for the Philippines to rid China of this misimpression. The task ahead is, one, to convince Beijing that the conflict in the Scarborough Shoal is solely because of conflicting claims and interests between two Asian neighbors with a very long standing history of friendship; and, two, a resolution that complies with the proscription on the use of force, recognized by all civilized nations. It is only in this context that China will agree to discuss the merit of which country has the superior claim to the Scarborough Shoal and perhaps, even to the Spratlys.

Prof. H. Harry L. Roque Jr. is director of the Institute of International Legal Studies, University of the Philippines Law Center.