Philippines president Rodrigo Duterte was in China at the end of last month for his fifth trip there as president. He faces increasing domestic pressure for his conciliatory approach to China, so all eyes were on whether he would keep his promise to raise the 2016 UN tribunal ruling in the Philippines case against China, which had largely found in the Philippines’ favor. He did, but Chinese president Xi Jinping reiterated that Beijing did not recognize the award. This was a repeat of their interaction in April when Duterte broached the South China Sea while attending the Belt and Road Forum. Manila was then expecting more than $18 billion worth of deals to be signed. In both cases Duterte did not press the issue.

The Philippines is on the frontline of U.S.-China competition. This has, in some respects, benefited the country. Washington is paying increased attention to the Philippines: in March, Washington clarified that the reference to “Pacific” in the U.S.-Philippines mutual defense treaty included the South China Sea. Beijing lavishes promises of Belt and Road Initiative deals, though little has materialized. Top officials I spoke to on a visit to Manila in July take the view that Beijing looks ready to agree to a deal to cooperate on oil and gas development that would implicitly accept that the Philippines enjoys sole sovereign rights in its exclusive economic zone (EEZ). If so, Beijing did not show it cards at the recent bilateral: Xi merely called for the inter-governmental committee created to look into the possibility of joint exploration to prepare a “substantive program.”

Troubled Waters

Developments in the Philippines’ foreign policy, however, have largely been troubling. In June, Duterte explained the presence of a Chinese fishing vessel that had collided with a stationary Filipino fishing vessel in the Philippines EEZ by claiming that in 2016 he had given China a right to fish in the Philippines’ EEZ. This goes beyond merely shelving the award—any such agreement could, moreover, be a breach of the Philippines’ obligation to conserve and manage its living resources.

Beijing has also faced little pushback for its increased presence around Philippines-occupied features and in the Philippines EEZ, allowing it to increase pressure and coercion on the Philippines and other coastal states. The presence of hundreds of vessels around Thitu Island, the largest Philippines-occupied feature in the Spratly Islands, might have gone under the radar if a U.S.-based think tank had not first sounded the alarm in February.

Duterte has been rightly dogged in his determination to avoid war. But his anemic handling of China is flawed.

First, when a rules-based order comes tumbling down, so too do the bulwarks against open conflict. In such an event, weaker states, like the Philippines, and by implication its people, get the short end of the stick.

Second, Duterte’s approach falsely limits the Philippines’ options to complete submission to China or war. The reality is that between Scylla and Charybdis is a narrow channel that a good captain must navigate.

Third, war by design is unlikely. Beijing’s approach to the South China Sea has demonstrated a desire to take actions that stop short of provoking outright war.

Standing Ground

What can the Philippines do, short of war, to stand its ground?

First, Duterte should “clarify” that his purported 2016 verbal agreement related only to fishing in the territorial sea around Scarborough Shoal (rather than the entirety of the Philippines EEZ). This would be consistent with the tribunal award’s finding that fishermen from the Philippines, China, Vietnam and Taiwan enjoy traditional fishing rights in Scarborough Shoal’s territorial sea. Beijing is unlikely to deny this version of events since insisting that Duterte had given China a right to fish in the Philippines EEZ indirectly concedes the Philippines’ claim to sole sovereign rights.

Second, words matter in defending rights. Duterte declared in his State of the Nation address in July that he had asked China to “please allow” Philippines fishermen to fish in the Philippines EEZ. A coastal state does not ask for permission to fish in its own EEZ.

Third, the Philippines should immediately call out objectionable behavior, including illegal fishing in its EEZ, denial of its fishing rights, and “swarming” activities aimed at intimidation. Neither calling out bad behavior nor sending in coastguard vessels to “fly the flag” are casus belli. Indonesia has punished illegal fishing by blowing up or sinking vessels, including Chinese ones; Vietnam has dispatched vessels to object to Chinese survey activities in its EEZ.

Fourth, the Philippines should continue to strengthen ties with the United States, including expediting progress under the 2014 Enhanced Defence Cooperation Agreement (EDCA), which allows the U.S. military to construct facilities, pre-position defense assets and deploy troops on a rotational basis on five Philippine military bases. Thus far, only one EDCA facility has opened.

Fifth, the Philippines must consider how to respond if China builds on Scarborough Shoal—a feature just over 200 miles from the country’s capital. Many I spoke to in Manila agreed that Beijing is calculating that it has a three-year window to consolidate its position with a China-friendly president in place.

Building on Scarborough Shoal is unlikely to trigger the U.S.-Philippines mutual defense treaty for two reasons. First, an international court or tribunal has not determined Scarborough Shoal to be Philippines territory and the United States does not take a position on competing sovereignty claims. Second, Beijing could build on Scarborough Shoal without an “armed attack” on the Philippines’ “armed forces, public vessels or aircraft” since China is already in control of the feature.

Still, Duterte’s assertions that the Philippines can do nothing without a “massacre” is defeatist. Manila showed creativity in retaining control of Second Thomas Shoal in the Spratly Islands—in 1999, it deliberately ran an old naval transport ship aground. Creativity should similarly be applied to defending Scarborough Shoal.

Sixth, Manila must urge the Trump administration to communicate to Beijing, either privately or publicly, that building on Scarborough Shoal would be crossing a red line—the Obama administration did this in private communications. A Chinese base on Scarborough Shoal would hurt U.S. interests by complicating military planning and undermining U.S. credibility in the region.

Seventh, the Philippines should continuously raise the 2016 tribunal decision, which confirmed that coastal states in the South China Sea enjoy EEZs unencumbered by China’s nine-dash line or any claimed EEZ from features in the Spratly Islands. The August statement of the Philippines Department of National Defense was a positive step.

The award clarified that the Philippines is sovereign over Mischief Reef because it is a low-tide elevation within its EEZ. When Beijing repeats its false claim, as in its recent Defense White Paper, that “China exercises its national sovereignty to build infrastructure and deploy necessary defensive capabilities on the islands and reefs in the South China Sea,” the Philippines and others should remind it that sovereignty over these features is contested and China is squatting on at least one Philippine territory.

Eighth, Manila should highlight the inconsistency of Beijing insisting that foreign warships obtain prior authorization before exercising innocent passage within Chinese territorial waters, when it plies through Philippines territorial waters without prior notification or authorization, as it did in July and August through the Sibutu Straits. Under UNCLOS, all vessels enjoy innocent passage within a coastal state’s territorial sea without the need for prior notification or authorization.

Unfortunately, Duterte muddied the waters by demanding that foreign vessels “notify and get clearance” to sail in the Philippines’ territorial waters. Foreign Affairs Secretary Teodoro Locsin Jr. clarified this month that the right to innocent passage is “absolute” and does not require permission—and that the president likely meant that permission could be sought between friendly nations.

The dispute over the South China Sea is about far more than rocks and reefs. It concerns the economic rights of ordinary Filipinos. More fundamentally, it strikes at the heart of the rule of law, which sets the terms of engagement between the Philippines, China and the United States on the South China Sea and on other issues. Long-term peace and prosperity depend on freedom from coercion and mutual respect between sovereign states, as well as the rules-based international order that undergirds it all. The Philippines must, in its actions, stand firm in defending these principles.

Dr Lynn Kuok is an associate fellow at the International Institute for Strategic Studies, a senior research fellow at the University of Cambridge and a visiting scholar at the Paul Tsai China Center at Yale Law School. She works on the politics, law and security of the Indo-Pacific, focusing on U.S.-China-ASEAN relations and the South China Sea dispute. She recently gave evidence before the UK House of Commons Defence Committee on the security situation in the “Far East.”

Image: Reuters