Is Scarborough fair? A litmus test for the rule of law

Recent news of a Chinese research vessel towing, according to Philippine authorities, a movable platform out and back into Panatag (Scarborough) Shoal (Bajo de Masinloc) should be a cause for alarm for Filipinos.

The scenario brings back memories of the Panganiban (Mischief) Reef incident more than three decades ago, when China surprised the Philippines with what analysts view as a creeping occupation of Panganiban Reef, one of the natural features lying within the Philippine-claimed Kalayaan Island Group in the Spratlys.

The Chinese initially built tentative structures on stilts, supposedly as temporary shelters for its fishermen during the monsoon season in the South China Sea. It eventually became clear that the Chinese had decided to stay in Panganiban for good. Permanent structures later fortified the reef and have now been heavily militarized.

What makes the Bajo de Masinloc case different from Panganiban Reef and altogether worrying is its proximity to the Philippine island of Luzon. Since China now controls the area, this presents a strategic nightmare to the Marcos administration. Should China fully fortify Bajo de Masinloc, it would gain a military advantage over the Philippines; in the event of a military conflict between the two neighbors (God forbid!), it would severely compromise the country’s territorial defense. Panatag Shoal has been a traditional fishing ground for Filipino fishermen due to its abundant living marine resources. Unfortunately, the food security and livelihood of the fishermen have been gravely affected by Chinese-imposed restrictions in the area.

With China still occupying Bajo de Masinloc, the Philippines would do well to go back to the drawing board and rethink past strategies in defending its claims in the South China Sea. While a modernized military could significantly enhance the efficiency of the Philippines’ surveillance mechanisms to minimize, if not prevent, further intrusions by foreigners into the country’s maritime territory, modernization takes time and requires substantial financial resources.

With the country lacking credible military capabilities, the Philippines has resorted to various non-military approaches, including promoting its legal victory in the Arbitral Tribunal case it filed against China, and utilizing a multilateral approach involving the establishment of a Code of Conduct through ASEAN. The Philippines seems determined to win by promoting the rule of law, particularly the United Nations Convention on the Law of the Sea (UNCLOS). The question is, is it working? If supporters say yes, we will benefit from it, then how? And when?

Ten years have passed since the Philippines won its case against China before the Permanent Court of Arbitration (PCA). However, it seems the country of more than 7,000 islands still longs to enjoy the fruits of its labor: Filipinos are still barred from freely fishing in the area and law enforcement authorities, media and marine researchers traveling to Bajo de Masinloc still experience intimidation, even violence. The Philippines may have won the legal battle over the highly contested shoal, but it may eventually lose the war for territory.

One view of international law presupposes that its value lies in its application through concrete actions; otherwise, it becomes a trivial discourse on human aspirations for world order. It remains to be seen whether promoting the rule of law would lead to a peaceful resolution of the disputes between China and the Philippines and pave the way for a lasting solution to the Panatag Shoal quandary. This is the litmus test of the rule of law in the South China Sea.

Pacta sunt servanda. Arguably, this is the oldest principle in international law. Treaties must be entered into in good faith. All self-respecting nations must abide by it. Ultimately, the true measure of Pacta sunt servanda is not found in the hallowed halls of tribunals but in whether Filipino fishermen could freely return to Bajo de Masinloc and exercise their maritime rights without fear or intimidation.

*      *      *

Edwin Estrada is assistant professor of international relations courses at the School of Diplomacy and Governance of De La Salle-College of Saint Benilde. He went to Bajo de Masinloc in the early 2000s as part of a fact-finding team.