Fight-a-Bully: Philippine, PRC Territorial Disputes

♠ Posted by Emmanuel in , at 4/22/2012 11:03:00 AM
[NOTE: Perhaps it's not obvious for me to begin writing about a territorial dispute by talking about lawyers, but why I'm doing so will be obvious soon enough.] While I suppose a certain number of lawyers are necessary for modern societal functioning--drawing up contracts, settling contractual disputes, finalizing Larry King's divorces and so on--too many lawyers is a dubious situation. Not only do their functions primarily concern wealth redistribution rather than wealth generation, but having too many folks train for these occupations of often dubious worth may result in unemployment of their sort.

While the United States remains the world's archetypal lawyer-infested economic laggard, there are others. A case in point is the Philippines. With many of its institutions--educational, legal, and so forth--modelled after the late colonizer's, this English-fluent nation is unsurprisingly very much in the American mould for better or worse. So there's a perversely high regard for this occupation, with scads of wannabe legal eagles. To what extent is the Philippines' slower economic growth compared to regional peers down to excessive lawyering? It's certainly a question you can investigate empirically by using the number of lawyers per capita as an independent variable or even diminished trust / social capital as a moderator variable.

But, the important thing is that, combining the Philippines aforementioned penchant for lawyering with its culture of migration and you have interesting results. As it so happens, some of the world's top international judges have come from the Philippines. Exhibit A is the WTO's Dispute Settlement Appellate Body. Since the WTO generally styles itself as being more inclusive than the World Bank or IMF whose leadership is always baked in Washington or Brussels, it has assigned prominent tasks to more (token?) folks from LDCs. From the WTO's inception to 2001, Florentino Feliciano served on the Appellate Body. Lilia Bautista also hailing from the Philippines served there as well from 2007 to 2011.

As it so happens, all this Filipino lawyering may soon come in handy--or at least the Philippine government hopes it will. While of guns and money the Philippines has far fewer of than China, lawyers capable of prosecuting international law it probably has more of. Hence the differential response to the current imbroglio over the Scarborough Shoal. So much trouble over an uninhabitable little rock in the Pacific. While China keeps affirming its mumbo-jumbo about finding a peaceful resolution to the dispute, it has sent additional vessels to the general vicinity. Meanwhile, the Philippines has asked China to bring the matter to the International Tribunal for the Law of the Sea (ITLOS)--as I've suggested it do so with the other disputants to settle the matter once and for all.

Let's just say the Chinese have not been amenable to arbitration despite being an UNCLOS signatory, with the Philippines even indicating that it may bring the matter up at ITLOS "unilaterally." So much for Chinese avowals of respecting international law--which, like the US, it conveniently ignores if it serves their own interests. The Scarborough Shoal being far closer to the Philippines than the Chinese mainland aside (said to be 140 nautical miles away compared to 750 miles away), there's also the matter of China' historic claim. The Chinese like to point out that various historic documents--maps and so forth--indicate the features in question have long been "part of China." That said, Philippine authorities point out a historic claim does not hold anywhere near the same legal weight in international law as a historic title. Revisit the UNCLOS text.

Needless to say, while the Philippines' claims are also subject to contestation, China's are too. International law is an area where the Philippines can engage China on more even terms, but alike all with the other disputants, China avoids "multilateralization" and in so doing continually reinforces its "divide and conquer" reputation when it comes to this territorial dispute. Sure it's easy to beat up the Philippines on its own, but what does that do for China's desired image of a "peaceful rise"?

So this situation is certainly at another impasse. More apocalyptic sorts are wondering if the US will come to the Philippines' aid under their Mutual Defence Treaty of 1951 if skirmishes break out in the South China Sea. Meanwhile, for reasons given above, the Philippines wants to sic the lawyers on China. It's one area where the Philippines perhaps has an absolute advantage over China. As I said, it's the natural response when you've got few guns and money but plenty of lawyers. Bad for development perhaps, but the Philippines hopes it's more beneficial with regard to territorial disputes.

UPDATE I: RP Foreign Minister Albert del Rosario believes that taking the matter to UNCLOS unilaterally is not an entirely empty gesture:
Del Rosario said that the UNCLOS provides five dispute settlement mechanisms, including the International Tribunal for the Law (ITLOS) of the Sea and the International Court of Justice [ICJ]. One more mechanism is a "compulsory conciliation system where you can go without China"..."You can proceed without China and get a judgement, but in that compulsory conciliation, the judgement is not legally binding but it does have moral suasion," Del Rosario said.
UPDATE II: To be fair, it should be noted that the Philippines has not had an ambassador to China for nearly two years now since the legislature has held up sending someone to China. Not sending a high-level Philippine diplomat may be a perceived by the Chinese as a slight. However, present circumstances may make the Philippines move faster.