Critics assail Philippine president Rodrigo Duterte for his failure to assert the 2016 arbitral ruling and protect his country’s sovereign rights over the West Philippine Sea (WPS). His government is also criticized for engaging in a blame game with the past administration, instead of squarely facing the issue. However, his rhetoric and actions suggest that he appreciates the arbitral award more as a means rather than an end. The limitations and openings created by the ruling shape the emerging contours of Duterte’s sea game. By setting aside the direct and confrontational route of pressuring China to comply with the award, he has created room to negotiate a way toward achieving positive results for both countries. The administration’s ongoing emphasis on resource access discussions may indicate where his immediate priorities lie.

Leaving the past behind

Early in his term, Duterte declined to accuse the previous Aquino administration of bequeathing him a strained relationship with China and the unenviable challenge of enforcing the arbitral award. He said as much in his debut State of the Nation Address: “I will not waste precious time dwelling on the sins of the past or blaming those who are perceived to be responsible for the mess that we are in and suffering from.” He clearly disapproved of his predecessor’s approach. The threat of going to arbitration was a powerful card for Manila to hold, but its value diminished as soon as it was played. That said, Duterte adopted a forward-looking perspective on the situation, saying that besides taking “a lesson or two from its errors, we will not tarry because it is the present that we are concerned with and the future that we should be prepared for.”

With this, he began to craft a strategy focused on confidence-building and finding mutually face-saving ways to implement simple steps forward. Though the Philippines lacks the military might to compel China to dismantle its artificial island fortresses, through diplomacy, Duterte may be able to dissuade his increasingly assertive neighbor from grabbing hitherto unoccupied features. While the ruling affirmed Philippine sovereign rights in its exclusive economic zone, it did not make a determination on the ownership of contested features. As such, the award did not move the region closer to an end to the territorial disputes. Adopting a friendly attitude towards China stems from a recognition that the only way to move forward with the award is to bring China on board, whether the latter admits it or not.

Leveraging the award

Critics who slam the government for its failure to assert the ruling do not realize that that assertion is happening, albeit in a different manner than expected. Instead of putting the disputed sea’s biggest claimant on the defensive by naming and shaming in international venues, Duterte offered China an opportunity to demonstrate its magnanimity in (legal) victory and good faith. The Philippines opted for the kind of direct dialogue and quiet diplomacy which other claimants like Vietnam and Malaysia also pursue. Furthermore, far from ignoring the ruling, the award was actually raised twice in both bilateral consultative meetings held since 2016.

In his 2016 State of the Nation Address, Duterte highlighted the ruling as “an important contribution to the ongoing efforts to pursue the peaceful resolution and management of [the] disputes.” In his address the next year, he pointed out that warmer relations with China had led to an easing of tensions and improved negotiating environment on the WPS. Those warmer relations would not have been likely if Manila had aggressively touted the tribunal’s decision. As Foreign Affairs Secretary Alan Peter Cayetano has argued, the assertion is being made without engaging in a pointless shouting match with Beijing.

The Philippines is also not confining itself to a bilateral track, actively taking part in regional tracks too. The president highlighted this in his 2018 State of the Nation Address, pointing out that dialogue between the Association of Southeast Asian Nations and China had led to a draft framework for a Code of Conduct on South China Sea, a next step in peaceful resolution for the disputes. Participation in such dialogue on top of the bilateral talks shows the government is taking a multi-faceted approach, maximizing available tools to advance the country’s position and interests.

It is difficult, if not unjust, to assess Duterte’s actions in the WPS using the previous government’s lens. Duterte obviously does not see merit in pressuring China into compliance through multilateral means. He witnessed the inability of the U.S. security alliance and the international community to prevent China from building its artificial islands during the course of the arbitration. Instead of pressuring and being rebuffed, his government is making headway in subtly implementing significant portions of the award, specifically on resource access.

Cooperation as cover for enforcement

In his brief 2018 presidential address, Duterte reiterated that the Philippines’ improved relationship with China does not come at the expense of its commitment to defend its WPS interests. Cooperation, in fact, provides an another avenue to move forward with the award. The 2016 award considers Bajo de Masinloc (Scarborough Shoal) a traditional fishing ground for Filipino, Chinese and Vietnamese fishers. This description by its very nature suggests the possibility of a fishing agreement between the sovereign parties, which would be a feasible way to reduce tensions.

The award did also not preclude cooperation on oil and gas extraction in the seabed. The affirmation of the Philippines’ sovereign rights in its exclusive economic zone limits cooperation to certain areas but does not prevent it entirely. For instance, the Philippine Constitution (Article XII, Section 2, paragraph 2) lays out marine wealth located in the archipelagic waters, territorial sea, and exclusive economic zone as “exclusively” reserved for Filipino citizens. But it does not mention wealth located on the continental shelf. Prior successful state practice on joint development as early as the 1950s may have prompted the framers of the 1987 Constitution to give future leadership the freedom to exercise this option, and Duterte appears to be availing himself of it. The 60/40 revenue sharing in the Philippines’ favor presents a viable and easily implementable avenue to pursue resource cooperation in the WPS.

A tentative fishing agreement like the one that allowed for the resumption of Filipino fishing in Bajo de Masinloc and renewed talks for joint exploration in the Recto (Reed) Bank are both steps towards implementing the award and canny moves toward bilateral cooperation. If properly executed, this approach will address the livelihood concerns of artisanal fishers and enhance the country’s energy security while maintaining good neighbor relations.

In sum, Duterte demonstrates pragmatism, foresight, and ingenuity in turning around a difficult situation handed to him by the previous administration. Instead of being ensnared by the ruling, he saw its value as a means to advance Philippine interests in WPS while keeping a stable external environment. The award was used as a leverage in dealing with China, enabling Manila to get tremendous economic concessions. In the meantime, cooperation has provided a cover for implementing the award without critics realizing it.

About Lucio Blanco Pitlo III

Lucio Blanco Pitlo III is a Research Fellow at the Asia-Pacific Pathways to Progress Foundation and a member of the Board of Directors of the Philippine Association for Chinese Studies. He was a lecturer at the Chinese Studies Program of Ateneo de Manila University and the International Studies Department of De La Salle University (Manila). He obtained his Master of Laws from Peking University and is presently pursuing his MA International Affairs at American University in Washington D.C.