(Eagle News) — President Rodrigo Duterte said it was important for the Association of Southeast Asian Nations (ASEAN) to work on the “peaceful resolution” of the South China Sea disputes, even as he chided his critics pressing him to enforce a UN-backed tribunal ruling on the disputed seas to have a “reality check.”
During the reading of the joint press statement Thursday (April 27) with Brunei’s Sultan Haji Hassanal Bolkiah in Malacanan Palace, President Duterte said that it was also important that the collective ASEAN interest be upheld in the code of conduct on the South China Sea.
“We will work together to ensure that the principled position on the peaceful resolution of disputes will be articulated fully,” he said.
“This is a collective interest that must be upheld in the implementation of the declaration of the Code of Conduct and greater progress on the Framework of the Code of Conduct in South China Sea,” the 72-year old Philippine president said.
The Philippines is the chairman of this year’s ASEAN Summit in a historic year that also marks the regional grouping’s 50th year anniversary.
And while there is increasing pressure from those who have worked to win a United Nations’ backed tribunal ruling on the South China Sea for the Philippines to have the judgement enforced, President Duterte said flaunting this on China’s face would not serve the Philippines’ purpose.
It might even instigate tension, he said, and make matters worse for the Philippines.
Peace, stability and security in South China Sea, important – Duterte
Duterte stressed that what is important is to seek “peace, stability and security” in the South China Sea.
“As we seek peace, stability and security in the vital waters of South China Sea, we must remember that we have duties as responsible members of the international community which we must abide,” he said.
Later in an interview with reporters, the controversial Philippine leader minced no words in making known his position. He said those who would want it enforced are only dreaming, and should take a reality check.
“Stop dreaming about (enforcing the) arbitral, arbitral (ruling)! You cannot… unless we are prepared to go to war,” Dutetre said.
“Pilitin mo ang isang bagay? (Force the issue?) There are two contending owners,” he said referring to China which claims historical rights to the territorial waters as one of the owners.
Duterte said it is foolhardy to go to war on a matter that can best be dealt with by talking to reach a common understanding.
Historical rights vs entitlement based on UNCLOS
He said that China had already said that it would not honor the tribunal’s ruling as it cited its historical rights to the disputed isles of the South China Sea.
“Sa atin entitlement (ruling) by the law- UNCLOS, referring to the Philipines’ rights based on entitlement because of the United Nations Convention on the Laws of the Seas.
“Before, ang sabi ng China, we will not honor (the ruling), so bakit mo pilitin yan? (so why will we press this?) Yung honor. Hahanap ka ba ng gulo? (Are you looking for trouble?),” Duterte told reporters.
He said those who want to press this enforcement of the entitlement by flaunting the July 2016 ruling of the Permanent Court of Arbitration (PCA) were seeing the enforcement only in theory, but explained that in reality this could not be done, unless one wants to go to war.
Duterte said that this was the problem.
Arbitral tribunal only ruled on entitlement, not sovereignty or jurisdiction
The PCA ruling on the dispute brought by the Philippines during the administration of former President Benigno “Noynoy” Aquino III against China may have earned its place in maritime legal anlnals, but unlike previous territorial disputes put before the International Tribunal for the Law of the Sea or the International Court of Justice in The Hague, the tribunal did not adjudicate on sovereignty.
This was what international law experts such as Euan Graham, Lowy Institute for International Policy, in an article had pointed out.
“That would have required both parties’ agreement,” Graham said in his analysis released a month after the July 2016 ruling.
“Furthermore, China’s reservations after ratification of the United Nations Convention on the Law of the Sea (UNCLOS) against compulsory dispute settlement under the Convention being binding effectively precluded such a direct approach,” he said.
“The Philippines was able to seek arbitration by focusing its case on the legal status of disputed maritime features, rather than a determination on who owns what. On these more limited terms, the Philippines obtained a sweeping victory, with the panel finding unanimously in its favor on almost all fifteen submissions,” Graham added.
The PCA panel found that China’s claims of historical rights within the nine-dash line were without legal foundation. The panel likewise concluded that China’s activities within the Philippines 200 nautical mile exclusive economic zone (EEZ) such as illegal fishing and artificial island construction, had infringed on Manila’s sovereign rights.
But because the PCA did not adjudicate on sovereignty, this puts the matter of enforcing the tribunal ruling in the realm of hypothesis.
This was what the Philippine president, known for his unconventional straight to the point in your face answers, pointed out, reflecting what international law experts who had analyzed the ruling had also previously explained.
“Arbitral is simply entitlement. It’s not even a territorial thing that you have to … you know,” he pointed out to Malacanang reporters who pressed the issue.
“Entitlement ang question dyan sa arbitral (tribunal). Hindi jurisdiction (Not jurisdiction), not even territory. It is outside of our territory, but it is part of our exclusive economic zone. Magkaiba ang isyu dyan (The issues there are different),” Duterte stressed.
He said that if not even the United States can pressure China to stop its construction activities in the South China Sea, then it would be far-fetched for the Philippines to be able to stop China from doing so.
So those criticizing his moves on how he sees as a better war to solve the South China Sea dispute, should have a reality check, he stressed.
Reality check
“You go into reality. Who can pressure China? Us? Katagal na yang construction na yan. (That constrcution had been going on for a long time.) There were so many photos, pictures published four years ago,” Duterte said apparently referring to satellite images of island building done by China as photographed by Asia Maritime Transparency Initiative (AMTI) at the Centre for Strategic and International Studies.
“Sino ang makahinto nyan? (Who can stop that?) Tayo? (Us?) It’s only America. Eh bakit nila pinayagan yan na ganun? (Then why did they [America] allow that to happen?) Tapos tayo itutulak yung arbiration, arbitration. (Then, they’ll push us to push this arbitration) Gusto nila mag-suicide tayo?! (Do they want us to commit suicide?) Masyado kayong bilib sa America eh. (You put so much trust and admiration for America),” Duterte said, addressing questions from reporters in Malacanang.
“You must realize by now. We cannot on our own enforce the arbitral judgment,” he said.
Territorial waters is only limited to 12 miles, he added.
Talking better than going to war, says Duterte
Duterte said that it would be best to talk about food, exchange of technology, cooperation and trade — issues that affect all countries, including China.
When asked what is the best way to deal with China that he would recommend to his fellow ASEAN members, the Philippine president answered, “The way we are doing. Talking. That is the only luxury that we have –talking.”
And talking about the Code of Conduct on the South China Sea with China would achieve a lot of things, he noted.
“If there’s a conduct and they would agree, so many things will be out. For example, challenges in the high seas, then the overflight that you have to identify yourself. Above China sea, it’s also the airspace,” he said.
The Philippines, as the ASEAN chair, and China are set to conduct talks on the Code of Conduct on the South CHina Sea next month.
China’s Foreign Minister Wang Yi in March has already said that a first draft on the China-ASEAN Code of Conduct for the disputed seas has already been completed, and that talks were needed with the ASEAN to decide on a final version.
This would like cover a binding crisis management mechanism, prevention of the installation of offensive weapons and freedom of navigation, based on previous reports.
Since 2010, China and the ASEAN have been discussing a set of rules to avoid conflicts among claimants in the South China Sea.