Posted May 21st, 2012 by & filed under Main Stories.

WHAT began at Scarborough Shoal as a purely maritime problem with China has now migrated to certain areas of the country's economy and trade. It has shot up, and the end is not yet in sight.

The good news is that no hostilities have broken out over any endangered marine species being removed by the Chinese from disputed Philippine waters. The bad news is that Beijing's travel advisory on the Philippines and its new sanitary measures on Philippine bananas are already hurting the country where it hurts the most.

At risk too is the fate of tens of thousands of Filipino Workers in Hong Kong and Macau. Beijing has said nothing about it, but the Filipino workers' position could become precarious if China continues to play hardball and nothing happens to break the impasse. Yet the more serious problem could come not from China itself but from how the local Chinese finally respond to a prolonged Philippine-Chinese crisis.

The local Chinese are a minority, but their impact on the nation's economy far outweighs their number. They are loyal to the Philippine republic, but their deep feelings as Chinese could find radical expression if the crisis begins to fester instead of being solved. Racial tension could arise, and that could tear the nation apart as it has torn other multiracial societies.

That is neither imminent nor predestined, and must be avoided at all costs.  But it needs a less dysfunctional government that knows what it is doing and sees beyond the obvious, and a coherent and credible policy that allows the government to assert its position on the Spratlys while fully energizing its pursuit of peace.

The dispatch of a couple of small boats to fly the Philippine flag at Scarborough is not incompatible with such pursuit.   Those who know the difference between a blue water navy and a reconditioned coast guard frigate will know that such maritime presence is merely symbolic.  China knows it represents no threat.

But the nation's political leaders will have to avoid trying to give the impression that those two small boats out there are the advance units of the US Seventh Fleet.  They will also have to avoid trying to get the US State Department and the Pentagon to commit to an automatic US military response, if the Philippines figured in a naval clash in the Spratlys, and looking disappointed when told it is not in the treaty document.

The  1951 RP-US Mutual Defense Treaty (MDT)  does not permit the US to get involved in the Spratlys territorial dispute, and contains no "automatic retaliatory clause" similar to that in the North Atlantic Treaty Organization (NATO) treaty document.  The Philippine secretaries of foreign affairs and defense therefore were shooting from the hip when they suggested that the US supports the Philippine claim and action on the Spratlys.

Because there is no economic or military parity between the parties, China is not likely to start a war with its virtually unarmed neighbor without provoking international opprobrium and outrage.  If there is to be war, it may have to start from the Philippine side, if it knew how to start a war, and if it desperately needed one. But the Philippines renounce war as an instrument of national policy.  It does not need—and it cannot afford—war.

The stress on diplomacy is healthy and refreshing. But the government must know when its diplomats are performing or not, and it should be able to take the first basic steps in diplomacy before attempting anything complicated.  There is no valid excuse why the post of Philippine ambassador in Beijing should remain unfilled just because the Commission on Appointments will not confirm a nominee who may know more about making money than basic diplomatic etiquette. If the President is serious, nothing should prevent him from sending a top career diplomat or statesman to Beijing as a sign of high respect for China's status.

With the proper foreign policy and national security structure in place, the government should engage China in all seriousness.  It could pick up a 12-year-old proposal to negotiate a Treaty of Friendship, Cooperation and Good Neighborliness with China, equivalent to what the French call Traite d'amitie, de cooperation et de bon voisinage, and start a new era in Philippine-Chinese relationship.

In 2000, as Senate Majority Leader, I proposed the treaty idea in a speech to the Senate on the 25th anniversary of the establishment of relations between the Philippines and China.  The declared purpose was to update and replace the joint communiqué signed by President Ferdinand Marcos and Prime Minister Chou En Lai in Beijing on June 7, 1975 on the establishment of those ties.

Under the communiqué,  Chinese-Philippine ties, under the "One-China" policy, were to be governed by peaceful coexistence, mutual respect for each other's sovereignty and territorial integrity, mutual non-aggression, non-interference in each other's internal affairs, equality and mutual benefit, and the peaceful settlement of disputes.  Some of those principles have since come under strain.

A new treaty should cover the whole gamut of Philippine-Chinese relations—political, economic, trade, investments, tourism, air services, maritime, shipping, cultural, scientific, technological, agricultural, fisheries, forestry, environmental protection, mining, offshore minerals and petroleum exploration, and industrial joint ventures.   Above all, it should provide for a mechanism for the pacific settlement of disputes in accordance with the UN charter as well as customary international law and treaty law, beginning with the UN Convention on the Law of the Sea.

Although China insists on a purely bilateral approach to the Spratlys issue, the Philippines should continue accessing the help of the UN and other friendly parties in trying to persuade its giant neighbor to submit their dispute to a peaceful settlement.   In 1999, President Joseph Estrada tried to do that in his talks with UN Secretary General Kofi Annan in New York.  No effort should be spared to persuade China to consider doing what others have done to resolve their territorial disputes.

There are notable examples.  Malaysia and Indonesia allowed the World Court to resolve their territorial dispute over Ligitan and Sipadan islands.  Botswana and Namibia did the same thing with respect to their dispute over the Kasikili/Sedudu island. And Spain, Morocco and Mauritania agreed to settle their dispute over Western Sahara, a colony administered by Spain but claimed by the two other countries, following an advisory opinion from the World Court on the legal status of the territory.

While China is opposed to a World Court settlement, the Western Sahara model might prove acceptable to the Chinese.   In that model, the claimants did not ask the World Court to adjudicate the conflict.  Instead, they asked the UN General Assembly to request the World Court for an advisory opinion on the legal status of the disputed territory.   Based on that, the General Assembly asked the Court to say 1) whether at the time of Spain's colonization, Western Sahara (Rio de Oro and Sakiet El Hamra) was a territory that belonged to no one (terram nullius); and 2) whether legal ties existed between Western Sahara and the Kingdom of Morocco and the Mauritanian entity, and if so, what were they?

Spain opposed the Court's intervention, saying the territorial dispute could not be put to the Court without its consent.   The Court replied that the request for an advisory opinion did not call on it to adjudicate the conflict,  and that no state could prevent it from giving an opinion to the UN, which was the requesting party.

After due examination of the facts, the Court concluded that at the time of colonization there were legal ties of allegiance between the Sultan of Morocco and some tribes living in the territory of Western Sahara, but these did not establish ties of territorial sovereignty between Western Sahara and the Kingdom of Morocco or Mauritania.

The advisory opinion did not end the conflict.  But influenced by this process, Spain, Morocco and Mauritania agreed on Nov. 14, 1975 to the partitioning of Western Sahara between Morocco and Mauritania, in exchange for the award of mineral and fishing rights to Spain.  This agreement was then confirmed by the UN.

In like manner, the claimants to the Spratlys could request the UN General Assembly to ask for an advisory opinion on the legal status of the Spratlys. That could go a long way in tranquilizing the South China Sea and the Asia Pacific.

A far-seeing Philippine government should be able to lead in this process.

(Published in the Manila Standard Today newspaper on /2012/May/21)