Retired Judge – The Diplomat

To observers of the disputes in the South China Sea, it has long been evident that bilateral disputes between Southeast Asian claimant states have hamstrung their ability to present a common front against China’s increasing assertiveness in the region.

The challenge has once again been underlined since late March, when more than 200 Chinese vessels were deployed in Philippine waters, refusing to heed repeated demands from Manila to withdraw from the area.

Initially massed around Whitsun Reef, a low-tide elevation which lies within the Philippines’ 200-nautical-mile Exclusive Economic Zone, the flotilla of maritime militia vessels, coast guard ships, and at least two Houbei-class missile warships, has since scattered throughout the disputed Spratly Islands, which are also claimed in whole or in part by Vietnam, Malaysia, and Taiwan.

Given its usual pro-China slant, the administration of President Rodrigo Duterte has been unusually vocal about the Chinese vessels, filing official diplomatic protests every day since April 5, summoning the Chinese ambassador, and openly deploring the Chinese actions in the media. However, the government’s assertion of its own claims has been complicated by the fact that they also conflict with the longstanding claims of Vietnam and Malaysia.

In an interview with the Philippine media outlet Rappler last week, retired Philippine Supreme Court Justice Antonio Carpio offered a possible way forward for the three Southeast Asian claimants, suggesting they submit themselves to voluntary arbitration at the International Court of Justice (ICJ) to resolve outstanding territorial disputes.

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While he was on the Supreme Court, Carpio helped formulate the case that the Philippines brought against China at the ICJ in 2013, which ruled mostly in the Philippines’ favor in 2016.

“I’m proposing that we submit to voluntary arbitration – that territorial dispute – to the International Court of Justice, because that’s the only way to settle this peacefully,” Carpio said in an interview with Rappler editor-at-large Marites Vitug. “No country will voluntarily concede their claim.”

The recent deployment of Chinese ships had only underscored the need for the Philippines to settle its territorial disputes with its Southeast Asian neighbors, Carpio added, describing it as a sign that “China is slowly activating his claims in the territorial dispute.”

The ICJ’s 2016 arbitral award dealt with maritime claims, rejecting China’s expansive “nine-dash line” claim as invalid under international maritime law. However, the various territorial disputes – that is, the question of which nations have sovereign rights over which islands and other maritime features – is yet to be settled and remains an obstacle to further intra-ASEAN cooperation on the issue.

“We have this territorial dispute and it involves ASEAN and countries, and we should settle this as ASEAN brothers,” Carpio said.

To be sure, the law can only go so far in compelling cooperation from China, which like most superpowers is liable to uphold the rules when they support its national interests and reject them otherwise, and has rejected the 2016 ruling outright. But the move would amount to a recognition that none alone can counter the strength of China’s navy, coast guard, and maritime militias, and help win over global opinion, something that the Southeast Asian claimants sorely need given the large asymmetries of power between themselves and China.

“Whether we succeed or not in convincing our neighbors,” Carpio said, “we are telling the world that China refuses to submit this to voluntary arbitration. And China prefers to use force to settle. China believes in ‘might is right’, we believe in ‘right is might’, and we will win world opinion on our side even more.”

There is a some sign that things are moving in this direction. As I noted earlier this month, Malaysia and Vietnam are this year planning to sign a Memorandum of Understanding (MoU) in order to strengthen their cooperation on maritime security issues. But it remains to be seen whether these nations can put their immediate perceived national interests on hold in the interests of a wider conception of the common good.