The importance of the arbitration ruling on the South China Sea

By Ambassador Shingo Yamagami

Acting director general, Japan institute for International Affairs

I just want to throw out some food for thought in the form of five topics. First, the significance of the arbitration award, then China and the US; ASEAN; and finally the way forward and what we can do.

First, the significance of the arbitration ruling. Throughout my 30 some years, I have been a student of international law, you can call me a half-baked international lawyer. But from my view, it was the most, most remarkable decision in my lifetime. Well, especially, you know,the judgment was clearly handed down to both parties carrying us to the effect that China's claims to the historical rights or other sovereign rights or jurisdiction with respect to the maritime areas encompassed by the nine-dash line was judged to be contrary to the UNCLOS. This is a significant decision.

In that regard, you know, I pay good respect to the tremendous job done by the Philippine legal team. Well in fact, about a little one year ago, I came to Manila to discuss the issue with the legal experts of the Philippine government, and I was introduced to one of the very, very respected brain behind this legal team, one of the Supreme Court judges. I went to visit his office and surprisingly to many square Japanese government officials, playing in his office was rock music. We just wondered to ourselves, 'What is really going on ? But as soon as we heard his remarks on some of the salient legal arguments to be made, we were so impressed. So, they did a hell of a job. Incidentally, we are inviting the legal counsel from the United States, Mr. Reichler, to JIIA next year so I'm sure he will share his legal insight with the Japanese legal community.

Second point I'd like to make here in the context of the arbitration ruling is that it is a major response from this country. I was told by one of my Filipino colleagues that on the first day, it was like the Philippines hit the lottery light – they went ecstatic but from second day on, they were so measured that there was no euphoria. And this was in stark contrast to the response of the other party to the dispute, whose senior official called the arbitration a complete political farce, the arbitration a waste of paper. Well, this shows how difficult it is not only to be a good loser but also how difficult it is to be a good student of International Law.

 You might wonder what effect will this arbitration ruling have in the near or perhaps distant future. I will say tremendous difference will be put forth. This is a historic decision and it will have a sustained power. Whenever legal scholars or international experts review this text, this arbitration award will stay there. So you may view this with no tangible, immediate effect, but certainly, this is final and this is legally binding to both parties. Back in Japanese history, whenever we have in-fighting amongst samurais, the yardstick is which side will have the Emperor's flag. So when it comes to this, I think the Philippine government has the Emperor's flag.

The second topic I wanted to mention is China: Do they care? My short answer is, of course they do care. You know, there will be a tremendous reputation cost for them and, as I think you know, the Chinese government has been getting more and more cautious in terms of conducting possible further reclamation or further militarization of sea features in the South China Sea. An interesting development that I have been able to notice is that, last time, when I attended this Maritime Security Seminar in Canberra, Australia, one of the Chinese participants (he was a legal expert) called the decision of the Chinese government not to appear in the arbitration proceeding as disastrous. He later on said that if China had done something in the proceedings, China would have lost but not by 0 versus 5 but 2 versus 3. I'm not going to show whether the estimation is right or not but I think it is healthy to see this kind of development or this kind of opinion or viewpoint getting expressed even within China.

Second point is, should we make use of this arbitration ruling? Yes, the Philippine government as well as the international community should make full use of this important legal decision not only in bilateral context but also in regional as well as multilateral context. It takes time. It takes quite some time to realize the real meaning of it, but this ruling is going to be the litmus test of the rule of law in East Asia.

My final point on the China issue is that some of the Western media are so quick to point out that under President Duterte, the Philippines is getting drawn closer to China, and separating itself from countries like the US and Japan. Whenever I read the news, I call this kind of observation ‘too simplistic’ and ‘off the mark.’ I hasten to point out the facts: Before President Duterte went to Beijing, he went to Hanoi, and after his trip to Beijing, he came to Tokyo. You may have seen the text of the Philippine-Japan Joint Statement issued by Prime

Minister Abe and President Duterte. It is perfect. Perfect from the Japanese view as well. It is natural to try to maintain a close trade and investment relationship with this emerging power in East Asia; Japan has been doing this for some years. What is important for us to do is to speak up on issues of political and security significance as we keep close trade and investment ties with China.

On this comment of separation from the US, this is a ticklish point to be made but I am now rolling down the slippery slope of life in my mid-50s. And if you live long enough, you may have seen a lot of situations like these. Such words of separation are often uttered in very close couples as well. I'm not very concerned about this remark. Also, coming from Japan, a former colonial and imperial power, I know that there are some countries, including Japan, which have to carry the baggage of history, US included. Somebody mentioned about Mr. Taft and we are often taught in the classroom of Japan about this Katsura-Taft Agreement: Americans get the Philippines and Japanese get the Korean Peninsula. We lived that kind of period. Those days are long gone but still we need to be very, very sensitive to the feelings of the Philippines and so on. But what is important here is not to create any power vacuum, because whenever you create a power vacuum in terms of your "alliance with the United States, there are certain forces who are so eager to take advantage of that kind of power vacuum. Look at what happened to the Paracel Islands, look at what happened to Mischief Reef. History is full of those proofs. Just on general terms, it is really crucial to put emotions under control for a clear-headed and wise accomplishment of national interest. Otherwise, you might end up playing into the hands of you potential adversary who are eager to drive a wedge in your alliance with the United States.

 My fourth point is ASEAN. Yes, the unity of ASEAN has been tested and challenged. And whenever I talk with some ASEAN authorities, I just get curious about whether their framing of issues is right or not. When I went to Jakarta the other day, I was told by one prominent Indonesian thinker that militarization of the South China Sea is only for two superpowers. He meant by that the US and China, and it has got nothing to do ASEAN and Japan. I said, "No, you are framing it wrong." It is not only for two nations. This is an issue about what kind of regional order and international order you would like to see in this part of the world. You don't have to be reminded of the newspaper advertisement done in the Philippines, August of last year. That is a kind of regional order contemplated by both of the parties. How should we protect and further maintain liberal, rules-based international order? That is a question being posed to us, so we don't want to see bullying, we don't want see a world where might prevails.

In this regard, I just want to throw some food for thought which is: Does ASEAN have the right kind of configuration to seriously tackle this issue? When I was in France the other day, some Europeans were calling Hungary as the Cambodia of EU. So this issue on the South China Sea: is it conducive to be left to consensus-based decisions of regional institutions such as the ASEAN and the EU? That is a question you might want to ponder. After all, the starting point of this territorial sovereignty issue in the South China Sea came from the San Francisco Peace Treaty. Isn't it the time to conduct a San Francisco Peace Conference Part 2? A kind of minilateral conference to tackle these issues among the countries seriously concerned.

Finally, the way forward, I have just three points. First, the diplomatic approach. As I said, this arbitration ruling is going to stay for good, forever and it is really up to the Philippines how to make full use of it. But you might feel lonely standing in the frontline, but you are not alone. Japan has been standing in the frontline to face up to the challenge posed by our continental neighbor. Japan will be here and there to help the Philippines in any way possible. Second point is capacity-building. The need is very, very high for the Philippine coast guard as well as for the Philippine navy to develop their capabilities and capacity. There is no question about that. In that spirit, the Japanese government has decided to provide 10 patrol boats, and on top of these there are two bigger vessels, to the Philippine government, along with five training airplanes to the Philippine navy and coast guard. This is a significant step forward in conjunction with any contribution to be extended by like-minded countries like the United States and Australia.

Finally, I like to emphasize the importance of letting deterrence work. In that regard, certainly, military presence is important. Aside from freedom of navigation operations conducted by Americans, Japan has been doing joint drills with the Philippine navy and coast guard, and we are making sure the Japanese navy/maritime self-defense forces and vessels stop by Subic Bay on April this year. In so doing, we would like to show to the regional community as well as the international community that deterrence has been working and deterrence has to work in this region.

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These are excerpts from remarks made by Ambassador Yamagami at the 2016 Pilipinas Conference at The Peninsula Manila last Dec. 8.