Time is of the essence in PH v China case

The timing of the decision by the Permanent Court of Arbitration in The Hague on the Philippines’ case against China’s nine-dash-line claims has critical geopolitical implications for Asia’s security. Specifically, a decision delivered well before the Philippine presidential election in May would allow the administration of President Aquino to respond strategically and with continuity, whatever the outcome. A decision delivered after May would in effect roll the dice by putting a new leadership team in Manila in charge of managing the court’s determination.

For policymakers, the implications should be clear. If the court decides that China’s claims are not legal, then the Philippines, Asean, and countries across the world who believe that the rule of law should govern the seas will need to carefully and constructively encourage Beijing to embrace this core tenet of international governance and security.

The window for the court to make an impact on the international relations of the South China Sea is closing fast as the court has declared its intent to issue a decision in 2016. But just as critical is Manila’s response and a coordinated global message to Beijing to embrace the rule of law in the interest of regional stability and peace.

The December surveys of polling firms Social Weather Stations and Pulse Asia found returning strong support for Vice President Jejomar Binay. With erstwhile polling superstar Sen. Grace Poe facing threats of disqualification on citizenship and residency requirements, Binay has charged back to the fore, much to the dismay of President Aquino and his chosen successor, Mar Roxas.

President Aquino and the Liberal Party are dismayed at the prospect of Binay becoming president because of the many ways he diverges from the administration’s policies. The differences grew so great between the President and the Vice President that Binay resigned from the Cabinet in June 2015, freeing him to openly criticize the Aquino administration. One of the first topics he chose was relations with China.

Although Binay has publicly affirmed that he would continue the arbitration process, it is hard to see how he would take up a court ruling in Manila’s favor while courting Beijing. In an interview with a Philippine radio station before his resignation from the Cabinet, Binay pushed for closer ties with Beijing, calling for a bilateral resolution to maritime disputes and even joint ventures to explore energy resources in the South China Sea. Ever the businessman, Binay pointed out that “China has money, [the Philippines] needs capital.”

Other candidates in the presidential race have also weighed in on the arbitration. Sen. Miriam Santiago, a legal expert and judge who was once elected to the International Criminal Court, supports the arbitration case, but on other counts has diverged sharply from the policies of the Aquino administration. Santiago, who is strongly opposed to the presence of US military forces in the Philippines, led much of the effort in the Senate against the implementation of the Enhanced Defense Cooperation Agreement with the United States. It is unclear whether Santiago would risk defying China after shirking US military support.

Davao City Mayor Rodrigo Duterte, known for his support of vigilante murder squads, had colorful language for how he would stand up to Chinese bullying tactics. Despite his tough talk, Duterte said he would pursue bilateral talks and a less confrontational approach with China to resolve the disputes.

Poe and Roxas are the candidates most likely to carry on Mr. Aquino’s course and follow up the court’s decision with actions supporting the authority of international convention. Poe, though independent, aligns closely with the Liberal Party. Roxas is a longtime member of the Liberal Party and has repeatedly supported the President’s approach to China. But Poe’s likelihood of staying in the race is looking increasingly unlikely as she appeals her disqualification by the Commission on Elections, and Roxas polled in the middle of the pack in the December presidential surveys released.

If the court hopes to pass down a decision which will not be thoroughly ignored as realpolitik overtakes it, it needs to ensure that the Aquino administration has time to institutionalize its approach. Since there are no formal enforcement mechanisms for the decision, the messaging from the Philippines and the international community is of greater import. If the decision is released and a new administration ignores it to pursue the bilateral negotiations that China has demanded, it decreases the incentive for other small nations to turn to arbitration. If the Philippines didn’t get anything out of pursuing its case, why should Vietnam or Malaysia follow in the future? As other avenues for fair resolution of disputes are shut, states will increasingly turn to military buildup in order to defend their interests.

Ultimately, resolving the South China Sea conundrum will require a combination of legal efforts, diplomacy, compromise, and cooperation. But the implementation of the court’s decision, in the short term, is as important to the relevance of international law as it is to Philippine interest. Ensuring that implementation by allowing President Aquino enough time to develop a response to the ruling is critical.

Ernest Brower is a trustee of the Albert del Rosario Institute, and chair for Southeast Asia Studies at the Center for Strategic and International Studies (CSIS) in Washington, DC. Conor Cronin is a CSIS research associate.