On both the South China Sea and drug war probe, Philippines should stick to right side of international law

The Ferdinand Marcos Jnr administration wants to hold fast to the rule of law on the South China Sea but ignore probes into the country’s war on drugs
Cherry-picking compliance with international law damages the country’s reputation and undermines its standing with easy accusations of double standards

Mark T. Townsend

Published: 8:15am, 25 Jul 2023

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There’s an idiom in the English language that says “you can’t have your cake and eat it, too” – in other words, you can’t have it both ways. But the Philippine government under President Ferdinand Marcos Jnr is in danger of trying to do just that. On one hand it seeks protection under international law, while on the other it is simultaneously abnegating those aspects it disagrees with.

The International Criminal Court’s (ICC) latest ruling dismissing the Philippines’ attempt to block the ICC’s probe into the country’s rampaging war on drugs comes at an inconvenient time for the Marcos administration as it seeks to garner international support against China’s increasingly assertive territorial claims in the West Philippine Sea.

Philippine senators are urging the government to bring the matter before the United Nations General Assembly in a bid to raise awareness, seemingly oblivious to the fact they could be accused of double standards. Still, the Philippines is a major player in the high-stakes territorial disputes in the South China Sea that are at the heart of simmering Sino-US tensions.

But by cherry-picking compliance with international law, Marcos is not only in danger of damaging the country’s reputation, he is hardly in a position to hold China to international obligations under the 2016 UN Convention on the Law of the Sea arbitral award which upheld Philippine sovereign rights in the South China Sea.

The glaring dichotomy also places the United States in something of a bind as it ratchets up assistance to Manila under recently expanded defence cooperation agreements.

The Biden administration’s support for the ICC as a mechanism to pursue Russian President Vladimir Putin suggests the long arm of international law might yet reach former Philippine president Rodrigo Duterte, the chief architect of the drug war. The ICC issued an arrest warrant against Putin in March, a move US President Joe Biden supported and said, “I think it’s justified.”

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The ICC’s recent decision is a warning that momentum in the case is building and the drug war’s two main figures – Duterte and Ronald dela Rosa, a former Philippine National Police chief turned senator – could see arrest warrants issued against them, a development that might not sit well with Washington. Justice Secretary Jesus Crispin Remulla has reportedly advised Duterte and Dela Rosa to be cautious with their travel plans. After all, allegations of crimes against humanity are a global concern.

For Marcos, who has vowed not to cooperate with the ICC, the decision is a litmus test of his government’s commitment to international law and a stress test of the political alliance between the Marcoses and the Dutertes. The legacy of Duterte’s vicious anti-drug campaign is rapidly becoming a shackle for Marcos, who has thrown his weight behind a dramatic policy shift in favour of Washington, in stark contrast to his predecessor’s pro-China stance.

The juxtaposition of the recent choreographed images of Duterte’s audience with President Xi Jinping against Marcos’ statements welcoming US backing in the South China Sea suggests all is not well when it comes to Manila’s foreign policy. As pressure mounts, Marcos will need to find a solution that pacifies the domestic support for Duterte while ensuring his own political survival.

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Although Marcos might be trying to distance himself from the actions of his predecessor, all the signs are that it is business as usual. In June, Human Rights Watch marked the president’s first year in office with a critical assessment. “Marcos has done little to address the pending human rights issues. Police and their agents continue their ‘drug war’ killings, though at a lower rate than during the Duterte administration,” it noted.

Marcos has preached the rule of law in his high-profile trips abroad, but the reality is that the rhetoric is not supported by facts on the ground. Much-needed foreign investment is also under threat as investors will weigh their environmental, social and governance (ESG) obligations.

Closer to home, the Philippines’ vacillation over its commitments under international law is also an issue for the Association of Southeast Asian Nations (Asean). To tamp down regional tensions, there has been speculation that a South China Sea code of conduct between China and Asean could answer the territorial concerns of the various claimants. That is all well and good, but the Philippines’ exception and revival of its claims under UNCLOS could see China scupper such a deal.

There is an argument that ICC proceedings take years, but that misses the point. International perception that impunity, corruption and a loose relationship with international law are thriving in the Philippines will deny the progress the country and its hard-working citizens so richly deserve.

However tempted Marcos might be by the analogy of the cake, being on the right side of international law will serve him and the Philippines well.

Mark Townsend is an award-winning journalist covering Southeast Asia and the Middle East