De La Salle University

2401 Taft Ave, Manila 1004, Republic of the Philippines

The Right and Responsibility to Protect: A Realist Perspective in Solving Conflict in the

South China Sea (West Philippine Sea), The China and Philippines

An analysis

International Relations in East and Southeast Asia

(DVS 542P)

A Seminar Paper by

Robert John O. Robas, 11489685

PhD in Developmental Studies

August 25, 2014

To be submitted to

Dr. Patrick Ziegenhain

Visiting Professor

University of Trier, Germany

De La Salle University, Manila 2 International Relations in East and Southeast Asia

1. Introduction

The South China Sea (West Philippine Sea) conflict between the Philippines and China is more

than a struggle of party claimants in exercise of sovereignty for self preservation; it is a show of

force, installation of fear and a manifestation of power and control.

I always say that the Philippines play the role of underdog in its position claiming its territory in

the South China Sea (West Philippine Sea). Perhaps, this is just a remark for others without basis

but still we cannot deny the facts that the world is controlled and dominated by power, for the

philosophy of Plato, might is right, who is more powerful whom is in control. Hence, regardless

that the position of the Philippines is an underdog, history proven that the Filipino people for the

words of Ninoy Aquino, are worth dying for.

Today, another Aquino is in office, and subscribed in his oath, to defend national territory and

sovereignty (Sy-Egco, 2014). President Benigno Aquino through its spokesperson Herminio

Coloma said that Philippines has the right to defend every inch of its territory (McDonnel, 2014)

amidst the China‘s foreign minister Wang Yi remarks that his country would vigorously defend

its sovereignty against unreasonable demands from smaller countries (Wong, 2014).

The Philippines has also expressed growing concern at the increased aggressiveness of the

Chinese in pressing their claim to almost all of the waters, even up to the coasts of its neighbors.

The Philippine government has sought UN arbitration under UNCLOS to settle the dispute but

China has rejected the move. Last February 2014, the Philippines lodged a protest after the

Chinese coastguard allegedly attacked Filipino fishermen off a disputed South China Sea shoal

with water cannon on Jan. 27. Beijing rejected the protest (France-Presse, 2014). Due to

continuous aggressiveness of China, in March 30, 2014, the Philippine Department of Foreign

Affairs submitted its Memorial to the Arbitral Tribunal that is hearing the case it brought against

China under the United Nations Convention on the Law of the Sea (Sabillo, 2014). The

Philippines argued that China illegally occupied at least eight South China Sea shoals, reefs and

similar features belonging to the Philippines. It also said China's claims that it owns the disputed

territory did not conform to the principle and provisions of United Nations Convention on the

Law of the Sea (Locsin, et al, 2014). However, Beijing has continuously ignored the arbitration

De La Salle University, Manila 3 International Relations in East and Southeast Asia

process, even saying in its May 21, 2014 note verbale that it will not participate in the

proceedings. The China continuously reaffirming that they are just enforcing the law in its own

territory and waters. Constantly insisted that their aggressive action in the South China Sea

(West Philippine Sea) is to protect its sovereignty and not intended to bully other countries.

Congruently, Zhang Hua insisted (2014) that they are stick in the principle of not to attack unless

attacked. In addition, Wang Yi manifested the position of China, that there is no room for

compromise in the issue of history and territory (Wong, 2014) although the statement is meant to

the tension between China and Japan but it gives a strong signal to the Philippines and other

ASEAN countries with claims over the South China Sea.

In the delight of this conflicting principles encompasses between the China and the Philippines,

this paper is intended to examines how the conflict in South China Sea (West Philippine Sea) can

be resolved peacefully since both parties have different means of solving the issues. More

importantly, it is also intended to examine the provisions of international law and its vagueness

in the light of right and responsibility to protect (R2P) principle by the United Nations.

1.1. Statement of the problem

The seminar paper is intended to examine the rights of the Philippines and China in the views of

United Nations in the principle of responsibility or right to protect (R2P). More specifically it

intends to give analysis using the following questions:

1. How territorial conflict in South China Sea (West Philippine Sea) can be resolved in the

light that China and Philippines has the right and responsibility to protect (R2P) to its

sovereignty and territorial jurisdictions?

2. Why international law is not the best solution to solve the territorial disputes in South

China Sea (West Philippine Sea)?

De La Salle University, Manila 4 International Relations in East and Southeast Asia

1.2. Background of the conflict in South China Sea (West Philippine Sea)

Over the past decade a highly significant development has attracted little scholarly attention: the

steady expansion of Chinese power in the South China Sea. There were several excellent studies

of this process through the very early 1980s, but these ended well before China's push from the

Paracel Islands to the Spratly Islands in 1988. Indeed, they disagreed about whether China would

actually do this. By the early 1990s China had pushed into the Spratlys and built up a relatively

strong base there. It is thus time to look anew at China's activities in that region (Garver, 1992).

In the study of Creeping Assertiveness: China, the Philippines and the South China Sea Dispute,

by Storey (1999) pointed out that the development of Sino-Philippine territorial disputes in the

South China Sea during 1995–98, China's occupation of Mischief Reef in 1995 was part of a

dual strategy of negotiation and occupation, influenced by domestic political factors. The

weakness of the Philippine armed forces provided the People's Republic of China with an

opportunity to extend its claims in the South China Sea, avoiding the possibility of military

confrontation. The Philippines has pursued diplomacy to resolve the disputes, employing both

bilateral and multilateral negotiations. Whilst these negotiations have met with some success, the

primary issues remain unresolved. In its dispute with the PRC, the Philippines received

unprecedented support from ASEAN, which viewed China's actions as damaging to regional

stability. The United States provided very limited support to the Philippines as its vital national

interests were not affected

So to speak, the basis in the claimants of a territory is not just limitedly in the provision of the

international law but to the exercises being done to the provision. Lowell Bautista (2008)

emphasizes that historic rights of title over land or maritime territories are acquired by a State

through a process of historical consolidation. This involves a long period of continuous and

undisturbed exercise of State sovereignty. In order to ripen into a valid title in international law,

historic rights require not only effective occupation but more importantly (Summer, 2004), the

acquiescence of the international community.

De La Salle University, Manila 5 International Relations in East and Southeast Asia

Meanwhile, the Philippines decided to brought the issue in the international tribunal and awaits

for its decision while the China on the other hand is keep on expanding and developing a strong

military bases in the region and further used the natural resources of the areas for their own

consumption without prior notice to the Philippines.

A. The Chinese Position

In the review of territorial disputes made by Ed Paulo Ramos and Christine Grace Catubig

(2014), both student of history, China has laid down its legal claim in the argument of ―first

discovery,‖ which is made on the basis of its historical records, (Hille, 2012) Beijing argues that

the Spratly and Paracel island were first discovered by the Chinese in the 2nd

century AD, and

since then have been exploited and occupied by ethnic Chinese. China backs up this argument

with 3rd

and 18th

century maps and archaeological artefacts found on the island that bear

similarities to China‘s Han Dynasty. Although the arguments are subjective, and come at a time

period before many international law structures were set in place. This is important due to the

colonial events prior to the independence of the respective countries, pre-World War II events,

and post-World War II international structures that were set in place. For instance, in the 1930s,

France placed the Spratly Islands under French colonial Vietnamese territory and control. The

People‘s Republic of China argues that even though France did this, it does not mean that

China‘s claims were invalid or not legitimate (BBC, 2012). In the study of Adam Nieves

Johnson (2012) opined that, the People‘s Republic of China goes even further to say that during

the time when France did this China‘s former Nationalist government (much weaker than France

at the time) was sending a formal protest through the proper diplomatic channels. In addition to

this, before the signing of the 1951 San Francisco Treaty, China‘s Zhou En Lai maintained ―the

peace makers could not overrule the undisputed sovereignty of China over the Spratly Islands.‖

When discussing China‘s argument in regard to having legal sovereignty over the Spratly it is

important to note that Taiwan has a similar legal claim. Hence, since Taiwan is considered as

part of China, their claims are considered one at the same time.

According to Zhang Hua (2014), the Spokesperson of the Embassy of the People's Republic of

China in the Republic of the Philippines, China has ample historic and legal basis for its

De La Salle University, Manila 6 International Relations in East and Southeast Asia

sovereignty over the Nansha Islands and their adjacent waters. China was the first to discover,

name, develop and operate on the Nansha Islands. It is also the first country that exercised and

has been exercising sovereign jurisdiction over the islands, which has been long recognized by

the international community including the Philippines. China resolutely safeguards national

territorial sovereignty, sovereign rights and interests, and remains committed to maintaining

regional peace and stability.

To further advance their claim in the South China Sea (West Philippine Sea), the Chinese

government created 9-dashed lines and eventually changes it into 10-dashed lines that cover

almost all the territory in the South China Sea (West Philippine Sea). Blatantly, aside from

different local legislation made by the China to acquire the territory, one of aggressive actions is

the decision to occupy permanently the disputed territory using military surveillance, patrol and

equipments in the place. Apparently, Eric Hyer (1995) said, that the military build-up in the

South China Sea does not necessarily indicate that Beijing will use force to occupy more islands,

but rather that Beijing seeks to enhance its military presence to augment its bargaining leverage

in future negotiations.

There is a massive implication to the moves undertaken by the China, their proactive actions

further escalates the tension in the region and provoke other parties claimants. Most especially,

the building of different structures in the disputed territory, specifically the military based

allegedly being develop in the West Philippine Sea, despites the pending case in the International

Tribunal, will affects the results in the resolution of conflict. Significantly, it can be analyze and

interpreted as occupation based on the principle used in the international law.

B. The Philippines Position

The Philippines has a great deal at stake in the dispute, it lays a claim from the principle of terra

nullius (no man‘s island) The Philippines first claims that there was no effective occupation or a

legitimate exercise of sovereignty over the Spratly Islands by any country before twentieth

century. The government of the Philippines claims that before naval technology progressed by

De La Salle University, Manila 7 International Relations in East and Southeast Asia

the early 20th

century, that the countries who claimed to have been travelling there are false

because of the long distances it would have taken to travel there and the level of danger that

those travels involved. Because travel to the islands would have been arduous, the Spratly

Islands were an unoccupied territory and did not belong to any country (Ramos & Catubig,

2014). Furthermore, the Philippines uses res nullius in its claim due to the discovery of Filipino

navigator Thomas Cloma, which he name Kalayaan. He owned Kalayaan as a Filipino citizen

and then later on transferred in 1970‘s to the government of the Philippines (Granados, 2009).

In addition, the Philippines anchor it‘s claimed based on the international law principle. The 200

nautical miles Exclusive Economic Zone principle which the Scarborough shoal lies only 124

nautical miles and the Kalayaan lies between 225 nautical miles from the baselines. In the

provision of national territory, the Philippines have 12 nautical miles from the baseline called

territorial zone, 12 nautical miles from the territorial zone called contiguous zone (24 nautical

miles from the baselines) and 200 nautical miles EEZ pursuant to the provision of United Nation

convention of Law of the Sea. To give more emphasis, the Philippines also use the prescription,

accretion, cession (voluntary or forcible), conquest and annexation principles by the international

laws which was determined by a series of international treaties, including the Treaty of Paris

between the United States and Spain in 1898, the Treaty between the United States and Spain for

Cession of Outlying Islands of the Philippines in 1900, the Convention between the United

States and Great Britain Delimiting in the Boundary between the Philippine Archipelago and the

State of North Borneo in 1930, and Tydings-McDuffie Act (Tolentino, 1974; Bautista, 2008a;

Baviera & Batongbacal, 2013; Bautista, 2013b).

In compliance with the provision of United Nations, several legislations are made by the

Philippines to strengthen the legal position before the international community (Baviera &

Batongbacal, 2013) and in conformity to the provision of international law, such RA 3046 was

amended by R.A. 5446, conforming to UNCLOS III, the Presidential Decree No. 1596 signed in

June 11, 1978 reaffirming and formalized the longstanding interest of the country in the

Kalayaan Island Group and RA 9522 was enacted in compliance with United Nations

Convention on the Law of the Sea (UNCLOS III).

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In the study of Dr. Aileen S.P. Baviera and Jay Batongbacal (2013), mentioned that the

Philippines posted troops on Lawak island in 1970, followed with Kota, Likas, Pag-asa and

Parola islands in 1971. The Philippines lost one feature to the Vietnamese in 1975, then occupied

two more in 1978. A weather station was established on Pag-asa, along with a fishery research

unit and laboratory. Likewise, a modest runway for logistics support craft, a lighthouse, an air

force unit and a naval station were constructed. The Armed Forces of the Philippines‘ Western

Command, which has jurisdiction over the Kalayaan Islands, was activated as a unified military

unit on March 12, 1976. Aside from occupation and discovery, there are several maps (more than

20 maps) from 1936‘s that show Spratly and Kalayaan as part of the Philippines (Carpio, 2014a).

The bottom line, the occupation being done already by the Philippines from undisturbed, long

period of time, and the activities done by the Philippines were never been contested even or prior

the World War II and after the 1980‘s. In fact, only in 1995 and the present, the issues in West

Philippine Sea became sensationalized. The long lasting sovereignty is being enjoyed by the

Philippines in the West Philippine Sea, before the China at present and in the past few years

decided to actively claim the territory.

2. The Right and Responsibility to Protect

In general rules, the right to protect means the right for self preservation (Waldock, 1952). Self-

preservation was a fundamental right of states, perhaps the most important, and encompassed the

physical, human and moral preservation of the state (Bellamy, 2008). This often arises with the

necessity which refers to a situation of emergency that justifies extraordinary action in order to

protect essential interests that are in danger of being irreparably damaged. Such extraordinary

action in the case under discussion here would be the use of force (Tsagourias, 2010). Thus, in

the view point of international law (Stahn, 2007), the territorial integrity of a State may be

infringed by incursion by the armed forces of another State into its airspace and, where they

exist, internal waters and (except in exercise of navigational rights) archipelagic waters and

territorial sea (Wehberg, 1951). In the purview, it can be exercises in the case of national

interest and security.

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In the reports of International Development Research Centre, Chaired by Gareth Evans and

Mohamed Sahnoun (2001), specifically identifies the basic principles of right to protect which

are: (1) State sovereignty implies responsibility, and the primary responsibility for the protection

of its people lies with the state itself. (2) Where a population is suffering serious harm, as a result

of internal war, insurgency, repression or state failure, and the state in question is unwilling or

unable to halt or avert it, the principle of non-intervention yields to the international

responsibility to protect. In addition, the principles of right to protects is a precautionary in the

following: (A) Right intention: The primary purpose of the intervention, whatever other motives

intervening states may have, must be to halt or avert human suffering. Right intention is better

assured with multilateral operations, clearly supported by regional opinion and the victims

concerned. (B) Last resort: Military intervention can only be justified when every non-military

option for the prevention or peaceful resolution of the crisis has been explored, with reasonable

grounds for believing lesser measures would not have succeeded. (C) Proportional means: The

scale, duration and intensity of the planned military intervention should be the minimum

necessary to secure the defined human protection objective, and, (D) Reasonable prospects:

There must be a reasonable chance of success in halting or averting the suffering which has

justified the intervention, with the consequences of action not likely to be worse than the

consequences of inaction.

The right of self-defence is closely related to the jus ad bellum. As long as war could be lawful

under the bellum justum doctrine, international law would simply regard self-defence as a

counter-war against an illegal war (Van de hole, 2003). The bellum justum doctrine, which

originated in the Middle Ages, legitimised the resort to violence in international law as a

procedure of self-help only if certain criteria were met relating to a belligerent's authority to

make war, its objectives and its intent (Wehberg, 1951; Wood, 2014).

Although, the provision for self-defence, necessity for self preservation, jus ad bellum, or right to

protect have a requisites required by the international law (Van de hole, 2003; Evans, &

Sahnoun, 2001; Glanville, 2012) nothing in the present Charter shall impair the inherent right of

individual or collective self-defence if an armed attack occurs against a Member of the United

Nations, until the Security Council has taken the measures necessary (Stahn, 2007) to maintain

De La Salle University, Manila 10 International Relations in East and Southeast Asia

international peace and security. Measures taken by Members in the exercise of this right of self-

defence shall be immediately reported to the Security Council (De Waal, 2007; Bellamy, 2008)

and shall not in any way affect the authority and responsibility of the Security Council under the

present Charter to take at any time such action as it deems necessary in order to maintain or

restore international peace and security (U.N. CHARTER art. 51; Tsagourias, 2010; Wood, 2014).

In this recent development of R2P principle, considering it is just new changes and development

in the international principle as results of 2005 World Summit, the application and interpretation

is still subject of debates. Relating to the issue in the South China Sea (West Philippine Sea)

since both parties compelling each other was violating their rights in the territory. Most

especially, the actuation that affects the civilian (fishermen) in the region can be plausibly and

blatantly can be interpreted as human right violation indicial for national interest and national

security of both parties. Comes in to the worst, either the Philippines and China can resulted to

invoke the R2P principle. If this to happen, the Philippines is in the disadvantageous position,

considering the military capability weaknesses the country encountered in present. We

understand that both parties have the right to protect (R2P) as enclosed in the charter of the

United Nations. The People‘s Republic of China and the Republic of the Philippines is united

and common in one principle of protecting their territory at any cost. The dilemma, if

confrontation to happen whom principle and right will succeed. Understanding the writings and

contentious of many scholars that war today is no longer a military war rather shifted into

economic war. This analysis is not steady in essence with the current repercussion happening

into the different parts of the world. The world is turning back into its old time; countries

resulted into the last results of arm conflict and war to advance its personal interest. Still

revolved to the human psyche of human that we cannot procrastinate how the individual minds

works and operates.

The implication, if peace cannot be attain in resolving conflict in the West Philippine Sea,

potential usage of force through military, as a means of protection and self preservation by

parties claimants will be possible, considering the existing tension, and some standoff event

happened between the troops of China and Philippines in the areas. Maybe, this analysis will be

exaggerated. Likewise, indicial to current scenario in the disputed areas both (China and

De La Salle University, Manila 11 International Relations in East and Southeast Asia

Philippines) are not willing to forgo on its self interest as sovereignty acclaimed and nationalism

array in to the territorial rights.

Moreover, the unresolved territorial disputes between China and Philippines in South China Sea

have highlighted emerging trends and raised important issues pertaining to the security and

stability of Southeast Asia. The disputes have not only had a significant impact on the shape of

Sino-Philippine relations, but also underlined the important roles played by the Association of

Southeast Asian nation (ASEAN) and the United States in maintaining regional stability (Storey,

1999). In Chinese perspective, the move of China to be more active in playing the role of a

responsible, big country, is to advance and protect the legitimate rights and interests of

developing countries and make the international order more just and reasonable (Wong 2014).

On the other hand, it will be a hint for China to increasingly seek to wrest control of the

international order away from the United States, and move towards a multi-polar world that

allows for shared leadership among both developed and developing nations (Tierre, 2014). As

the largest and most prosperous developing nation, China often sees itself as the leader of the

developing world—meaning more input from developing countries would likely translate to

more Chinese leadership on the international stage (Tierre, 2014).

3. The realist critique

Realism is based on a view of the individual as primarily selfish and power seeking. Individuals

are organized in states, each of which acts in a unitary way in pursuit of its own national interest,

defined in terms of power (Norton, 2010). Some others argue that recent Chinese assertiveness

has largely been driven by China‘s new naval strategy seeking to control the South China Sea

due to its intention to compete with the United States for regional primacy (Maasalo, 2004).

Moreover, it is widely perceived that intense nationalism has been a key driving force behind

China‘s tougher posture (Zhang, 2014) akin to a relativist approach based on realist perspective.

Probably, the best argument in realist perspective is why not used cooperation and relationship

with other party claimants.

De La Salle University, Manila 12 International Relations in East and Southeast Asia

The struggle for power today shift in the Southeast and East pacific region, quickly becoming the

world's new center of naval activity, presages a fundamentally different dynamic, and the

strategic priorities to control for geographical position. Because of the way geography

illuminates and sets priorities, these physical contours of East Asia augur a naval century--naval

being defined here in the broad sense to include both sea and air battle formations now that they

have become increasingly inextricable (Kaplan, 2011). Military engagements on land and at sea

are vastly different, with major implications for the grand strategies needed to win--or avoid--

them. Those on land enmesh civilian populations, in effect making human rights a signal element

of war studies. Those at sea approach conflict as a clinical and technocratic affair, in effect

reducing war to math, in marked contrast with the intellectual battles that helped define previous

conflicts (Kaplan, 2011). In the view remarks of Taylor Fravel (2008), the aggressive action of

China toward the territory reflects the uncertainty and anxiety that accompany power transition

of history in advancing their foreign interest.

The power struggle in the world is a normal contour of history, as we turn the other page of it, it

never change, we just alter the settings. The steady admonition to superior economic and military

power that states have made throughout history, the move to dictate who is in control and

dominant is normal psyche of human. Even though, the world today, assuming it is fully

develop and protected by different sacrilege of moral laws, human rights and respect for

humanity, self interest is still the conduit of power. Evil for self preservation is a dominant force

that reproaches the people through war and control whether it is military or economic stability.

Relatively, the current response of China as highlighted by Jian Zhang (2014) is the needs to take

a more proactive, rather than reactive approach to strengthen its claims through administrative,

diplomatic and legal means. For example, the Chinese maritime law expert Qu Bo argues that

China should take concerted measures to reinforce its control over the disputed areas in the

South China Sea (Sutter, 2001). According to him, China should: adopt a zero-tolerance

approach to the presence of other nationals in the areas surrounding the Paracels; take greater

efforts to strengthen its control over the seven features occupied by China in the Spratlys and the

surrounding maritime areas; establish and enforce relevant maritime laws and regulations; make

greater use of jurisdictional measures to demonstrate China‘s sovereignty; strengthen the

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capability of the city of Sansha in defending China‘s maritime rights in the disputed areas;

increase Chinese military presence; and respond promptly to any actions by other countries

which violate China‘s sovereignty (Zhang, 2014; Wu & Mesguita, 1994).

In relation, the PRC is committed to developing a military that can advance national sovereignty

by engaging in an ambitious program of military modernization that contributes to an increase in

Comprehensive National Power (Shah, 2014; Ji, 2004). For instance China‘s naval

modernization effort encompasses a broad array of weapon acquisition programs, including

programs for anti-ship ballistic missiles (ASBMs), anti-ship cruise missiles (ASCMs), land-

attack cruise missiles (LACMs), surface-to-air missiles, mines, manned aircraft, unmanned

aircraft, submarines, aircraft carriers, destroyers, frigates, patrol craft, amphibious ships, mine

countermeasures (MCM) ships, hospital ships, and supporting C4ISR systems (Rourke, 2012;

Shah, 2014). The China further hand increases their visibility and control in the South China Sea

(West Philippine Sea) aside from the structure built as defence, a number of military vessels

having its patrol in the disputed areas.

If learning be acclaim in history and its philosophy are concluded that the issue in South China

Sea (West Philippine Sea) is just a small picture in the real intention of China in a bigger

perspective. In this essence, the action taken by China to protect its interest is more important

rather than imposing (today) cooperation and bilateral agreements with the Philippines.

Drastically, a test of power in the world stage to study and observe the responses of big countries

towards the South China Sea disputes neither a chance of control and supremacy for China is

possible.

In contrast, the Philippines used a different method to advance its interest in the West Philippine

Sea, aside from elevating the case before the international law tribunal. The Philippines

continuously became active in a joint military exercises in neighbouring country in the ASEAN,

as a means of defence and capacity buildings. Comparatively, the Philippines is actively

participating in all international conferences by different states and nations urging and

compelling all nation and states to adhere in the rule of law and to the principle of international

law. The role played by the Philippines being an underdog in the issues became advantage to

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make an appeal and support in other powerful countries such as US, Great Britain and United

Kingdom.

In retrospect, one of the drawbacks to the policy of the Philippines in the last century is the

shifting of defence and less prioritization to modernization of Arm Forces of the Philippines

(Solidum, 1982). The capabilities for self preservation and capacity of uniform personnel to

protect the territorial integrity and sovereignty of the Philippine archipelago became important

issues. The Arms Forces of the Philippines is currently not self-reliant. Further the issue became

exuberated when the Philippine Senate abolished the visiting forces agreement to the United

States which enhances the military capacity of the Philippines in 1990‘s. The shift of the

Philippine government not to give a high regards or attention to militarization and modernization

became a hole and problem in the current situation of the Philippines in the South China Sea

(West Philippine Sea). For the study of Renato Cruz De Castro (2005), pointed out to enhance

the abilities of the Philippine in the modernization program through purchasing of new military

equipments that can robust the morale of the uniform personnel. Further, several notion was

taken to return the Visiting Forces Agreement of the Philippines and the United States of

America in order to enhance to current military competence of the Philippines for security

threats. The alliances re-establish and built by the Philippines through joint military exercises is

one of the resorts available to equalize and balance the disparity between the China and the

Philippines in a long standing conflict in the South China Sea (West Philippine Sea).

The bottom line, the right to protect (R2P) principle is advantageous for both parties as a last

result in the escalation of tension between South China Sea (West Philippine Sea). The

Philippine can seek for the support of the international community in adherence of international

law principle. In worst possible case, if military confrontation can never be prevented and will be

the last result, the Philippines can able to ask for the assistance to the members of United

Nations. Hence, in one way or another, the China also enjoys the same in the principle of United

Nations and right to protect (R2P). The real question here in the end, to which the international

community will take its side.

De La Salle University, Manila 15 International Relations in East and Southeast Asia

4. Why international law is not the best solution?

The foundation of international law belongs to acclaim by Hugo Grotius in his classic Mare

Liberum that oceans and seas belonged to all mankind (Carpio, 2014b). Drawing back, China is

bringing back its acclaim in 17th

Century through its assertions of 10 (9) dashed lines asserting

indisputable sovereignty to almost all parts of South China Sea. The basis of ―first discovery‖

which was the China insist without considering the changes happened throughout time in the

history of humanity and developments of territory from the principle of international laws.

Those events happened in history of the Philippines, such as, the time of Spanish, American,

Japanese occupation wherein the entire archipelago (territory) of the Philippines is under the

colonial rule and power. Judging the dynamics of logic and chronological reasoning, why the

Chinese never claimed the territory during that time?

In the view of changes throughout time, as events occur in history and plays in the life of

humanity, the United Nation Convention of Law of the Sea (UNCLOS) was created which

provides a mechanism to regulate the maritime boundary. The convention covers a great deal of

oceanic issues such as navigation, continental shelves, and most importantly to the South China

Sea dispute, Exclusive Economic Zones (EEZs) (Johnson, 2012). Nevertheless, it became

problematic, ambiguous and vague because it does not govern territorial sovereignty disputes. In

lieu, it became the dilemma of the Philippines in its acclaim to safeguard the territory in the West

Philippine Sea.

The worst possible consequences perhaps of the international law principles are the ambiguity

and vagueness to its application and interpretation. The delimitation on the principle, that

municipal law is always higher than international law. Notably, both the People‘s Republic of

China and the Republic of the Philippines have their own legislation on the content and extent of

their territory. In this case, to whom interpretation is correct and fables. Even more disastrously,

the weaknesses of the international tribunal (UNCLOS) and international law in the enforcement

of its decision. The reality that rule can just be imposed in terms of economic sanction and moral

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appeal to violating country. The truth is that the decision can just affect to countries or states

with small voice in the world of power.

In the views of Lowell B. Bautista (2013), it is within this context that the Philippine territorial

water claim must be placed. The notion that the Philippines territorial water claim is totally

devoid of merit is extremely myopic and uninformed. In addition, the strictly legal forum with

which the issue has couched itself severely restricts the historical, political, economic and

security dimensions of the issue. The Philippine claim finds sufficient basis in international law.

It is after all, a legal dispute. The question, however, of whether it will stand international

judicial adjudication or even international recognition, is of course, a different matter altogether.

Even more damagingly, Zhang Hua (2014), the Spokesperson of the Embassy of the People's

Republic of China in the Republic of the Philippines, accentuated that, China's refusal to accept

the arbitration is an exercise of its right under international law. China has every right not to

accept the arbitration initiated by the Philippines. This is also in conformity with international

practice. Furthermore, argued that the framework of the Convention is not applicable to all

maritime issues. First, the disputes between China and the Philippines are principally territorial

disputes over islands, which are not covered by the Convention. Second，according to the

Convention, in case of disputes over territory, maritime delineation and historic title or rights, a

signatory to the Convention may refuse to accept the jurisdiction of any international justice or

arbitration as long as it makes a declaration.

The Chinese position even more highlighted, that not all countries with cases neither territory nor

maritime disputes participated in the conduit of the cases before its tribunal. In fact, 34 countries

have made such declarations based on this provision. Therefore, China enjoys also not

participate in the same. In international practice, when their major national interests or positions

are involved, many countries have taken the position of not accepting the jurisdiction nor

enforcing the rulings of related international litigation or arbitration. Among them are both big

countries like the United States and small and medium-sized countries. This is a commonplace

practice. To accuse China of disobeying international law on the ground that it has not accepted

the arbitration is an act of applying "double standards". This is not fair to the Chinese side. And

it does not conform to the true spirit of international rule of law. In fact, and much to the

De La Salle University, Manila 17 International Relations in East and Southeast Asia

contrary, China's refusal to accept the arbitration submitted by the Philippine side is an act truly

in keeping with the law (Hua, 2014).

In contrary, the Philippines as a democracy, a maritime nation and a member of the community

of nations, the Philippines has a vested interest in becoming a more influential and constructive

actor in the security affairs of the region. This means that the Philippines will need to pay greater

attention to the strategic dimension of its treaty commitments, its multilateral relationships and to

work more co-operatively on transnational issues. Ultimately, an act which is not in conformity

with international law is actually antithetical to the interests of the Philippines (Bautista, 2013).

In effect, judging the current situation, if China does not want to participate in the process,

assuming that the tribunal hearing the case decided favourably to the Philippines, how the

decision can be enforced? Who enforced the decision? And what is the sanction of that decision?

Some of the scholars say that the decision of the tribunal, since it doesn‘t have a police power,

can be imposed through economic sanction or a moral appeal to China. However, the dilemma is

that, China is now considered as an economic power of the world also a country with military

supremacy. The current robust of economy by China was able to control and dominated the

world stage. To paraphrase some of the economic philosophy, wherever you go you can find a

Chinese product. In this reason, how the economic sanction can be imposed?

In contrary to the popular belief, the China, since they are in good economic position, can able to

imposed sanctions to the Philippines directly or indirectly by means of banning the Filipino

products and workers to the China. In the study of Ravindran (2012) shows, the Philippines

benefited most in its relations to the China. More (most?) of Filipino products were exported to

the China and most (in good number) of the Filipino‘s are working in China. More so, China is

one of the countries with big investment to the Philippines.

In the same hand, in terms of moral ascendancy that can be appealed to China, to respect the

decision of tribunal, the China cannot be force to follow the decision considering their arguments

of double standard and since they are not just the only country who refused to participate in the

process of UNCLOS, allegedly, like the United States of America. So to speak, how a little

county such as the Philippines can able to transgress to that supremacy of power and play?

De La Salle University, Manila 18 International Relations in East and Southeast Asia

Possibly, this is a pessimistic view and a narrow analysis likewise a proof of authenticity of

power and control.

Synthesis

The analysis given by the researcher is based on the documentary analysis that is made based

from the different literatures and sources readily available. This topic is very challenging

considering the relevance and differences in the point of views of authors in the situation in the

South China Sea (West Philippine Sea). The topic focused in the realist point of views of self

preservation using the principle of right to protect (R2P) by the United Nations, and its possible

implications to country in disadvantageous position. It is also, an examination of the ambiguity

and vagueness by the international law since not all countries are willing either directly or

indirectly to be subjected to its provisions. The silent provisions of the international law manifest

an imminence impact for both party claimants.

The gap between this analysis can be denounce in not discussing the topic using other principle

of international relations such as the views of constructivism and liberalism and the advantage

that might be applicable in the light of giving a peaceful resolution in the issue in the South

China Sea (West Philippine Sea).

In one way or another, it may be interpreted as subjective in the plausibility of ideas because its

content is more based in the realist perspective. In this case, it might need another academic

writings to give enlightenments in the delight of the existing topic. Hence, the researcher stands

to its interpretations in the topic and pronouncement made in this study.

Conclusion

To summarize the discussion, both the Philippines and the China have the right to protect in the

acclaim territory. What matter most here whose interest will advance in the acquisition of its

legal rights and control of the South China Sea (West Philippine Sea). The area is rich in the

resources such as the oil and marine species. Several study is also conducted that depict the

De La Salle University, Manila 19 International Relations in East and Southeast Asia

disputed territory is also an important key for energy security, a source of livelihood and

ecological preservation. The West Philippine Sea also can able to provide livelihood for the

people and food for security issues. It is also identified as viable features of marine sanctuary

that serve for eco tourism.

The supremacy in control of power is still the dominance stage of the world. Borrowing the

principles given by Plato, might is right. Who is in control, whom is in power. The lesson in the

South China Sea (West Philippine Sea) disputes can be summarized in two things. (1) Military

and war is always a grand narrative of power. (2) The economic supremacy is always a constant

factor of control in the world struggle of power. In essence, power and control means military

and economy.

If the country is strong in the economy, they will not be affected by the dominance of other

nations because they can able to dictate the phase and control. Learning the teaching of history,

expansion of territory is just a normal contour of power as the necessities of people arise. The

issue in South China Sea cannot be reduced in a small picture discussion. It is more than a

territorial dispute between China and the Philippines. The silent picture here is the real story of

struggle for power between big countries such as United States and the China. This event is more

than a premise on the provision of international law.

Then and again, as I depicts in my article, we are just shifting in the next episode of history. The

truth is, as we turn the other page of it, it never change, we just alter the settings. Today we are

just shifting the episode from Western Setting into Asia Pacific Region.

Appreciably, beyond what the discussion is made, the aggressiveness shows by the China

towards its claim in the South China Sea (West Philippine Sea) is a manifestation of emotion and

nationalism of their people (Jie, 1994). Beyond the struggle for power to seize the territory, is a

showmanship of interest in the prevailing issues from the people and government of China. On

the contrary, this might be one of the weaknesses of the Philippines because not all of the people

are interested to the issue. One of the dilemmas is how the issue will became a national cause

De La Salle University, Manila 20 International Relations in East and Southeast Asia

that will open national consciousness of the people to be more proactive and actively participate

in the discussion and issue in the West Philippine Sea.

Furthermore, in the view of the same analysis given by Ed Paulo Ramos and Christine Grace

Catubig (2014), in their final paper entitled, ―Review of the Territorial Disputes in Southeast

Asia‖ it strongly claims that no nation claims appears to have been sufficiently strong or

unchallengeable to persuade others to keep out of the region. Although China has argued that

Western requirements of formal declarations of sovereignty should not apply in Asia, their

suggested substitute long contact with a region does not appear to be sufficient because it does

not put others on the notice that a claim of exclusion has been made. Beside, china has stated

several times that it will resolve the territorial issues according to the international law and the

principles in the 1982 United Nations Law of the Sea. Hence the problem is that they don‘t want

to participate into the international processes intended to pursue the same.

In summary, international legal principles will not unambiguously resolve the competing

sovereignty claims. Likewise, the principle abides in the rule that, a party with claim in a

territory must demonstrate continuous and effective occupation, administration, and control, as

well as acquiescence in the territory. In this regard, it will clearly manifest in the strong assert in

their right to protect (R2P) for sovereignty and self preservation of territory. For this purpose, the

current development undertaken with the countries with claims in the territory can able to change

the eventually of events favourable to them.

De La Salle University, Manila 21 International Relations in East and Southeast Asia

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