Disputes can be resolved in a variety of ways. For one, dispute can be resolved by the use of force. Hence, parties can go to war, use threat or intimidation in getting what they want. On the other hand, parties in a dispute can also invoke and assert their rights over the subject of their dispute. In this case, parties can avail of litigation, arbitration or adjudication as a mode of enforcing their rights. Another way of resolving a dispute is for the parties to the dispute to explore each other’s interests, pursue and agree on those matters which can possibly address those interests. In this instance, the parties can pursue negotiation, mediation or conciliation as modes of resolving their disputes.
Based on studies and experience, given the appropriate circumstances, negotiation is the safer and least costly among these modes of resolving disputes.
FACTUAL BACKGROUND:
Much has been written and reported about the West Philippine Sea Dispute between China, on the one hand, and the Philippines and other ASEAN countries on the other hand. The newspapers are also rife with reports about military buildups not only between China and the Philippines but also among other ASEAN countries who have their respective stakes in the ongoing dispute. China, on one hand, is reported to have conducted massive reclamation activities and have built artificial islands on various reefs, which are claimed by the Philippines and found within the latter’s exclusive economic zone. China also built major military airstrips in some of those artificial islands which it built. The Philippines, on the other hand, is steadfast in its position over the specific areas and reefs within its territory. It is also gradually upgrading its military capability in view of this.
Experts and analysts have put forward their respective views on how to handle and manage the subject dispute. Some propose that the Philippines pursue bilateral negotiation with China on account of the fact that the former is in no position to get entangled in an escalation of this territorial conflict between the two (2) countries. Others, however, see an obvious power imbalance between the parties such that proposing a negotiation between the Philippines and China will ultimately favor the latter at the end of the day. Most, if not all, agree that, given China’s military might, the Philippines is no match to China in a military confrontation. As matters stand, observers see an obvious dilemna on the part of the Philippines over this issue.
At present, the Philippines has pursued arbitration proceedings against China before the Hague wherein the arbitral tribunal has recently declared that it has jurisdiction over the Philippines’ claims of maritime entitlement over the disputed areas. The United States, among other states, is also asserting its rights of navigation over the same disputed areas to the consternation and objection of China. Many other states have expressed opposition to and condemnation over China’s reclamation activities in the disputed area.
ISSUE:
At the same time when China is freely occupying many reefs within the disputed area, building artificial islands therein and constructing military airstrips and installations in the said artificial islands, China also insists on bilateral negotiation with the Philippines as the only way for the dispute to be resolved. That China is the much stronger party in this case is also a given fact and the existence of a power imbalance between the parties to the dispute is undeniable.
With the foregoing as backdrop, should the Philippines negotiate with China over the subject dispute? Corollarily, did the Philippines make the right decision in not negotiating with China and, instead, by submitting the dispute to arbitration? Does the Philippines’ approach in handling this dispute find support under sound dispute resolution principles?
WHEN NOT TO NEGOTIATE
Robert Mnookin, a lawyer and the Chair of the Program on Negotiation, Harvard Law School, wrote a book entitled “Bargaining with the Devil: When to Negotiate, When to Fight”. In Chapter 5 of that book, Mr. Mnookin studied the relationship between Great Britain and Germany prior to the time when the two (2) countries eventually became protagonists during World War II. In his research, Mr. Mnookin looked back to the time when Germany was then ruled by its expansionist Nazi government under Adolf Hitler while, on the other hand, Great Britain’s government was headed by its then Prime Minister Neville Chamberlaim. At that time, Europe was being threatened by Hitler’s expansionist policy while all along Great Britain was actively pursuing a pre-war foreign policy of appeasement and avoiding war at all costs. Mr. Mnookin defined appeasement as “the policy of settling international quarrels by admitting and satisfying grievances through rational negotiation and compromise, thereby avoiding the resort to an armed conflict which would be expensive, bloody, and possibly dangerous.” Based on historical records which he studied, Mr. Mnookin discussed how Chamberlain went to great lengths to avoid confrontation with Hitler’s Germany. Chamberlain even met with Hitler and signed with the latter a treaty, which included Germany’s commitment not to invade territories in Europe. Germany, however, reneged on those commitments.
Winston Churchill then took over as prime minister of Great Britain at a time when Europe was helplessly facing the onslaught of Germany, which continued invading various countries in Europe to form part of its expanding empire. Great Britain was also faced with the threat of being drawn into a confrontation, or war, with Germany.
Robert Mnookin discussed that Great Britain’s leaders, under Winston Churchill, were faced with the most difficult issue at that time: whether or not to negotiate with Germany’s Adolf Hitler. Per Mr. Mnookin, Great Britain seriously considered negotiating with Germany since going to war against the latter would be a very costly option for the former. That posture was also consistent with sound dispute resolution principles, that is, go for the safer and less costly approach to resolving disputes if the circumstances will permit.
Did Great Britain, under Winston Churchill, eventually negotiate with Germany? No. Why? Based on available historical records studied by Mr. Mnookin, while Great Britain was considering negotiating with Germany and trying to avoid a confrontation with the latter, Germany was invading and annexing left and right countries in Europe to the point of threatening Great Britain’s independence. Looking at Germany’s pattern of behaviors at that time, Great Britain’s leadership concluded that Germany’s Hitler cannot be trusted and was a “completely unreliable negotiating partner”. Hence, Great Britain did not pursue negotiation with Germany.
One lesson or insight that Mr. Mnookin shares is this: As a general rule, always consider negotiation as a mode of resolving your dispute. Exception, don’t negotiate if your prospective negotiation counterparty is not a reliable counterparty.
Transposing that lesson now to the Philippines’ West Philippine Sea dispute with China, can the Philippines properly treat and consider China as a reliable negotiation counterparty given that China, while insisting that bilateral negotiation between it and the Philippines is the only effective mode of resolving their present dispute, is simultaneously and actively occupying the various reefs located within the disputed areas, building artificial islands and military installations therein?
RIGHTS- BASED APPROACH IN DISPUTE RESOLUTION
Instead of pursuing bilateral negotiations with China, which the latter has been insisting on all along, the Philippines has pursued arbitration proceedings against China before the Hague on the basis of the Philippines’ claims of maritime entitlement over the disputed areas. Does this move on the part of the Philippines find support under sound principles in dispute resolution?
As matters stand at the moment, there is apparently a huge power imbalance between China and the Philippines. China is now on its massive reclamation- spree of the many reefs found within Philippine territory subject of the dispute. The Philippines, likewise, is also not in a position, militarily, to deter or stop China from doing so. Given this situation, what else could be a good option for the Philippines?
It is submitted that in case of obvious power imbalance between the disputing parties, when one party cannot possibly expect to pursue its interests or have its interests respected by its counterparty, negotiation cannot be a viable option. Instead, the “weaker” party, if it has stronger rights in that given situation, should pursue a rights-based dispute resolution approach. (Frank E. A. Sander; Lukasz Rozdeiczer, Matching Cases and Dispute Resolution Procedure, 2006 Harvard Negotiation Law Review)
In the Philippines’ case at hand, does it have stronger rights against China in the subject dispute? In pursuing arbitration, the Philippines obviously thinks so. As of the moment, while China refuses to acknowledge the tribunal’s jurisdiction, the same arbitral tribunal in the Hague has acquired jurisdiction over the subject dispute and will proceed to hear the merits of the Philippines’ claim as it continues with its proceedings.
THIRD PARTIES’ INVOLVEMENT IN THE DISPUTE
Faced with China’s overtly aggressive and hardline posture, the Philippine government is now pursuing a policy of modernizing and strengthening its military. Even then, however, the Philippines’ military capability pales in comparison with China’s firepower. Be that as it may, an adversarial confrontation, short of war, is definitely not a welcome option given that it is very costly in terms of loss of resources and lives.
However, we also find in the news that the United States (and Australia), among others, is asserting its “right of navigation” over the disputed areas. On the other hand, however, the US does not maintain exactly the same position or interest as the Philippines in the latter’s dispute with China. Likewise, the G7 nations, composed of Canada, France, Germany, Italy, Japan, the United Kingdom and the United States, as well as some ASEAN countries, were reported to have issued statements opposing and condemning the massive reclamation activities of China within the disputed area.
In cases of power imbalance between disputing parties, another good approach of the “weaker” party is to build alliances with third parties. Hence, the Philippines has found allies among the US and Australia, who are asserting their “rights of navigation” over the disputed area, and other states which oppose and condemn China’s reclamation activities within the disputed area.
The Philippines’ alliance-building efforts find support in sound dispute resolution principles. However, related literature is also consistent to the effect that alliances are most effective to the extent that the interests of the parties in the alliance are fully aligned with each other. (Leigh L. Thompson, The Mind and Heart of the Negotiator) How the Philppines’ present “alliance” with the US and other states will impact the present dispute between the Philippines and China, as it evolves, is worth watching and studying.
CONCLUSION
The foregoing is the author’s simple understanding of the Philippines’ approach in handling its present dispute with China. The author hopes that his discussion has provided some clarity on the subject.
(Atty. Omila is a Partner in Soller & Omila Law Offices. He is a member of the Philippine Institute of Arbitrators (PIArb), the Chartered Institute of Arbitrators (CIArb) and the Phil. Dispute Resolution Center, Inc. (PDRCI). He is also an accredited arbitrator and mediator of the Wholesale Electricity Spot Market (WESM) and accredited arbitrator of the ADR Center for Negotiation, Mediation and Arbitration).