Why the Philippines Should Call China’s Bluff on the South China Sea Code of Conduct

By: Marlene Zieah

The Philippines has tried to play nice with China and other sovereigns with competing claims on the South China Sea for decades.[1] In a fairly recent decision in July 2016, The Hague decided that China’s claim to sovereignty over waters surrounding the Philippines was unfounded.[2] China was furious following the decision and decided it would simply not accept the arbitration award to the Philippines as binding.[3] China even threatened to go to war if the Philippines sought to enforce it.[4] Philippine president, Rodrigo Duterte, wanted nothing to do with this irrational response.[5] President Duterte sought a diplomatic solution and agreed not to enforce the decision if China refrained from claiming complete economic control of the territory.[6] Nonetheless, these issues continue to haunt the Philippines as China remains relentless in its efforts to gain control of the South China Sea.[7] Just this week, the Philippines defense secretary Delfin Lorenzana told reporters the country is concerned about a new Chinese dredging ship, rumored to be the largest vessel in Asia.[8]       

The Philippines cannot help but think that this Chinese dredging ship is yet another attempt at creating a manmade island to expand China’s territorial control of the South China Sea.[9] Although China claims the ship will not be deployed in areas that are currently in dispute between it and Manila, the Philippines has been down this road before, and so it will continue to monitor the ship and any Chinese military action.[10] Ironically, the Chinese dredger was revealed only one week before two significant international conferences are set to take place – one in Vietnam and one in the Philippines.[11] Those in attendance include China and the United States, which for decades has attempted to enforce “freedom of navigation” on the South China Sea.[12] All of this action takes place only two months after a framework was adopted between China and the Association of South East Asian Nations (ASEAN).[13] The framework is designed to govern conduct on the South China Sea, but the question is whether the Philippines can trust that China will honor it or dispose of it in the same way it did with the Philippines v. China arbitration award.[14]

Philippine Foreign Secretary, Alan Peter Cayetano, stated publicly that China supported a framework for disputes on the South China Sea that would have no legal force.[15] In August 2017, when the framework was adopted, many believed that China’s preference for a non-binding code was not to prevent territorial disputes, but simply to “stall and buy time to expand its defense capability on its manmade islands.”[16] In light of China’s new dredger ship, the Philippines has all the more reason to agree with the rumors of China’s ulterior motive. Although the Philippines have a lot to lose if they get on China’s bad side, given that China controls “almost the entire South China Sea,”[17] it should consider whether the side will really change the result.

            The Philippines should not trust that China will abide by the code of conduct framework because it did not do so in 2002 with the Declaration on the Conduct of Parties (DOC).[18] In 1995, China seized a feature from Mischief Reef, a territory belonging to the Philippines.[19] Many ASEAN member states, including the Philippines, were furious, and it was only after causing this chaos that china adopted the DOC (which was also non-binding).[20] The same is true today. China is taking advantage of President Duterte’s laid-back nature, claiming it does not intend to make territorial claims with the use of this “magic island making” dredging ship.[21] However, like in 1995, it will do so, and then attempt to escape liability by pointing to the non-binding code.[22] Especially considering the likelihood that China still resents the Philippines for the arbitration award it received last year, which some have characterized as a “humiliating defeat.”[23]

            Another reason the Philippines should not rely on the code framework to shield it from Chinese advancements in territorial claims is because the code is hardly a code.[24] For twenty-five years, China and the ASEAN member states have agreed on nothing; instead, they have merely found ways to remain civil.[25] For example, in 1992, an actually binding code of conduct was introduced to China by the ASEAN and detailed what activities would and would not be tolerated on the South China Sea.[26] China chose to ignore it and finally adopted a “watered down” version of the code in 2002, which was of course, non-binding.[27] However, there is one key difference between the code version of 2002 and today’s version. In 2002, China at least agreed to work towards a binding version at some point, while today, it has expressed no intention to make the code framework binding.[28] The Philippines should take the code framework at face value – “a skeletal one-page outline, consisting of a series of bland principles and provisions, some of which China has already violated, and a few operational clauses.”[29]

            The Philippines is better off pretending the new code framework was never drafted to begin with because for almost a century, China has refused to abide by any nation’s rules on the South China Sea, and a one-page document is very unlikely to change that.[30] The Philippines should not expect that China will keep its island making dredging ship at bay because it fears violating a preliminary code – China has already violated the existing DOC by reclaiming land.[31] The issue the Philippines faces is the fact that China continuously fails to honor its word not just with its neighbors, but with all nations that have agendas potentially threatening to its own.[32] In 2015, President Xi Jinping pledged that China would not militarize Spratly Islands – that was a lie.[33] In 2016, Beijing agreed to submit its territorial dispute with the Philippines to arbitration, and as such, adhere to the court’s decision – that was a lie.[34] Today, Beijing assures the Philippines, despite its new massive island making ship, it will not build in territories where it has conflicting claims with Manila.[35] The Philippines will soon find that, too, was a lie.

[1] South China Sea islands: Facts on a decades-long dispute, Today (Feb. 17, 2016), http://www.todayonline.com/world/asia/south-china-sea-islands-facts-decades-long-dispute.

[2] Matikas Santos, Philippines wins arbitration case vs. China over South China Sea, Inquirer.Net (July 12, 2016, 5:05 PM), http://globalnation.inquirer.net/140358/philippines-arbitration-decision-maritime-dispute-south-china-sea-arbitral-tribunal-unclos-itlos. 

[3] Tom Phillips et al., Beijing rejects tribunal's ruling in South China Sea case, theguardian (July 12, 2016, 1:21 PM), https://www.theguardian.com/world/2016/jul/12/philippines-wins-south-china-sea-case-against-china.

[4] Raul Dancel, Xi threatened war if Philippines tried to enforce arbitration ruling on South China Sea: Duterte, StraitsTimes (May 19, 2017, 9:34 PM), http://www.straitstimes.com/asia/se-asia/chinas-xi-threatened-war-if-philippines-tried-to-enforce-south-china-sea-arbitration.

[5] See id.

[6] See id.

[7] Prashanth Parameswaran, Will a China-ASEAN South China Sea Code of Conduct Really Matter?, The Diplomat (Aug. 5, 2017), https://thediplomat.com/2017/08/will-a-china-asean-south-china-sea-code-of-conduct-really-matter/.

[8] Neil Jerome Morales, Philippines to keep wary eye on new Chinese dredger, REUTERS (Nov. 6, 2017, 3:24 AM), http://www.reuters.com/article/southchinasea-philippines/philippines-to-keep-wary-eye-on-new-chinese-dredger-idUSL3N1NC2F4.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Parameswaran, supra note 7.

[14] Id.

[15] Manuel Mogato, Philippines says China wanted non-legally binding South China Sea code, REUTERS (Aug. 8, 2017, 9:56 AM), https://www.reuters.com/article/us-asean-philippines-southchinasea/philippines-says-china-wanted-non-legally-binding-south-china-sea-code-idUSKBN1AO1LW.

[16] Id.

[17] Philippines to keep close eye on Beijing’s new super-dredger in South China Sea, S. China Morning Post (Nov. 6, 2017, 7:07 PM), http://www.scmp.com/news/china/diplomacy-defence/article/2118652/philippines-keep-close-eye-beijings-new-super-dredger.

[18] Parameswaran, supra note 7.

[19] Id.

[20] Id.

[21] What is China's 'magic island-making' ship?, BBC NEWS (Nov. 6, 2017), http://www.bbc.com/news/world-asia-china-41882081.

[22] Parameswaran, supra note 7.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] See id.

[31] Id.

[32] Id.

[33] Ankit Panda, It's Official: Xi Jinping Breaks His Non-Militarization Pledge in the Spratlys, The Diplomat (Dec. 16, 2016), https://thediplomat.com/2016/12/its-official-xi-jinping-breaks-his-non-militarization-pledge-in-the-spratlys/. 

[34] Phillips et al., supra note 3.

[35] Morales, supra note 8.