Manila Ups the Ante in the South China Sea

In a surprise move on January 22, the Philippine government informed the Chinese embassy in Manila that it unilaterally would submit the two countries’ overlapping jurisdictional claims in the South China Sea to international legal arbitration at the United Nations (UN).

Manila’s audacious move is a major development in the long running dispute as it marks the first time one of the Southeast Asian parties has resorted to legal means to challenge China’s expansive claims. If the UN tribunal decides to hear the case, any ruling it issues will have wide-ranging legal, political and strategic implications.

While a final decision by the tribunal is likely to be several years away, in the short term, the Philippine gambit almost certainly will provoke an indignant response from Beijing, exacerbate strains in Sino-Philippine relations and set back efforts by the Association of Southeast Asian Nations (ASEAN) to negotiate a binding code of conduct on the South China Sea with China.

The Philippine Submission

The Philippines’ submission to the UN, called the Notification and Statement of Claim, hereafter the Notification, is crafted skillfully [1]. It does not call on the arbitral tribunal—most likely the International Tribunal on the Law of the Sea (ITLOS), which is the dispute resolution mechanism established under the 1982 United Nations Convention on the Law of the Sea (UNCLOS)—to determine which of the claimants enjoys sovereignty over the disputed atolls in the South China Sea, because that determination only can be made by the International Court of Justice and with the consent of all parties. Crucially, the Notification also does not raise issues from which, in 2006, China excluded itself from compulsory arbitration by ITLOS. Those issues include sea boundary delimitations, historic bays and titles as well as disputes concerning military activities.

Instead, the Philippines seeks to challenge China’s claim to sovereign rights, including to all resources and navigational rights, within the maritime space encompassed by the nine-dash line that appears on its official maps. The submission asserts that China has interfered unlawfully with the exercise of Philippine sovereign rights within its 200 nautical mile exclusive economic zone (EEZ)—illegal activities that have escalated since 2012. The Notification also accuses China of illegally occupying certain low-tide elevations (including Mischief, McKennan, Gaven and Subi Reefs), several of which are located on the Philippines’ continental shelf and which, therefore, cannot be acquired by another state.

The Philippines requests ITLOS to issue an award that, inter alia, declares China’s maritime claims based on its nine-dash line to be contrary to UNCLOS and therefore invalid; requires China to bring its domestic legislation into conformity with UNCLOS; declares China’s occupation of certain reefs to be illegal and a violation of Philippine sovereign rights; declares that China has unlawfully claimed maritime entitlements beyond 12 nautical miles from certain features (including Scarborough Shoal); and requires China to desist from unlawful activities in the Philippines’ EEZ, including exploiting living and non-living resources.

Why Now?

The failure of the Philippines and China to resolve their overlapping claims, Philippine perceptions of increasing Chinese assertiveness in the South China over the past few years and Manila’s disappointment with ASEAN’s response to Beijing’s actions explain the timing of the submission.

Under international law, disputing parties are encouraged to discuss their overlapping claims bilaterally with a view to reaching a mutually-acceptable resolution. According to Manila, despite numerous exchanges and consultations since China’s occupation of Mischief Reef in 1995, the two sides have failed to resolve their disputes over ownership of insular features, delimitation of maritime zones as well as rights to fishery, energy and mineral resources in the South China Sea.

Other Philippine attempts to resolve the dispute in partnership with the other claimants also have come to nought. In 2011, the administration of President Benigno Aquino put forward a proposal to transform the sea into a Zone of Peace, Friendship, Freedom and Cooperation (ZoPFFC). The ZoPFFC called on the parties to clarify their maritime claims, designate the Spratly Islands as a disputed zone, demilitarize the atolls and establish a joint development agency to manage undersea resources (”ASEAN and the South China Sea: Movement in Lieu of Progress,” China Brief, April 27, 2012). Beijing, however, rejected the proposal out of hand, and none of the Philippines’ ASEAN partners, except Vietnam, chose to support it, effectively killing the imaginative concept.

Developments in the South China Sea last year also catalyzed Manila’s decision to challenge the legal basis of China’s claims.

The most serious took place at Scarborough Shoal last April and May. The eight-week crisis was sparked when China’s civilian maritime agencies prevented the Philippine Navy from arresting a group of Chinese fishermen who were alleged to be fishing illegally at the shoal. Chinese vessels subsequently stopped Philippine trawlers from entering Scarborough Shoal, thereby asserting de facto control of the reef. Late last year, Chinese officials told Philippine Foreign Secretary Albert Del Rosario that its presence at the reef was now permanent (South China Morning Post, November 30, 2012). The Notification recognizes this important change in the status quo by referring to China’s “seizure” of Scarborough Shoal.

To add insult to injury, when the Philippines raised the issue at the ASEAN Ministerial Meeting in July, then-ASEAN chair Cambodia refused to allow the discussions to be reflected in the final communiqué on the spurious grounds that the dispute was bilateral in nature. The failure to achieve consensus on this matter scuppered the release of a final communiqué for the first time in the organization’s 45-year history, damaging ASEAN’s credibility in the process (“China Pushes on the South China Sea, ASEAN Unity Collapses,” China Brief, August 4, 2012).

The second development in 2012 that prompted the Philippine submission occurred in November when the government of Hainan province promulgated regulations allowing for the boarding, detention and expulsion of foreign vessels within its jurisdiction. The rules aroused anxiety across the region, as they could, in extremis, be perceived as undermining freedom of navigation rights. The Hainan government provided a more detailed explanation of the new rules when they came into effect on January 1. Although some observers have opined that the rules only apply to vessels operating within Hainan Island’s 12 nautical mile territorial sea (which would be compatible with international law), Manila has interpreted the regulations as a Chinese attempt to exercise jurisdiction over navigational rights within the entire maritime space encompassed by the nine-dash line and therefore contrary to UNCLOS (The Diplomat, January 3).

Accordingly, the Philippines believes, not through want of trying, it has exhausted all political and diplomatic avenues with China, leaving compulsory UN arbitration as the only remaining option to resolve their disputes.

China’s Response

China’s immediate response to Manila’s challenge was low-key. According to the state-run media, when Ambassador Ma Keqing was handed the note verbale by a Philippine official, she simply reiterated China’s long-held position that it has “indisputable sovereignty” over all the atolls in the South China Sea and that the dispute must be resolved bilaterally (Xinhua, January 23). The next day, China’s Ministry of Foreign Affairs echoed this line, but added that the root cause of the problem was the Philippines’ “illegal occupation” of some of the Spratlys features (Chinese Ministry of Foreign Affairs, January 23).

Clearly, the Philippine maneuver had taken China by surprise, and Chinese leaders and legal experts probably were weighing carefully their options before issuing a more considered response. Even the Chinese press, including hard-line outlets such as the Global Times, have remained silent as they await the government’s official line.

The submission clearly poses a dilemma for Beijing. If it chooses to ignore it, China leaves itself open to criticism that it is not committed to existing international legal norms and a rules-based system of global governance. Moreover, as suggested by its actions at Scarborough Shoal last year, ignoring the submission also could show Beijing prefers might over right when it comes to settling maritime disputes. Even if China chooses to ignore it, Beijing cannot stop the case from proceeding. Within 30 days of the Philippine submission, China must appoint an arbitrator or ITLOS will appoint one on its behalf.

Yet, if Beijing does decide to argue its case before ITLOS, it would mean reversing a decades-long policy of rejecting international legal arbitration as a means to resolve territorial and maritime boundary disputes involving China, and set a precedent for future cases. Additionally, China’s legal experts are no doubts acutely aware of the uphill task they would face trying to convince the tribunal that the nine-dash line is compatible with UNCLOS.

If ITLOS decides to hear the case and rules in favor of the Philippines, its decisions are binding but cannot be enforced. Manila, however, would have seized the moral high ground and put China on the defensive.

The Philippines’ decision to force China to international arbitration without its consent will have incensed Beijing. Late last year, Chinese officials specifically warned the Aquino government not to “internationalize” the dispute by discussing the problem with other countries, raising it at international forums or submitting its claims to the UN (South China Morning Post, November 30, 2012). The Philippines brushed aside China’s admonishment and is pursuing all three. In the coming weeks and months, Beijing not only will launch a verbal assault on Manila for its temerity, but also could impose punitive economic measures, such as further restricting Philippine imports into China and the flow of Chinese tourists into the Philippines. The Aquino government seemingly anticipates a robust response from China, noting that while it hopes to strengthen economic ties with China, this should not occur at the “expense of national sovereignty” (Philippine Department of Foreign Affairs, January 22). Chinese harassment of Philippine fishing trawlers and survey vessels also could be stepped up in the coming months.

Southeast Asian Responses

The reaction from the Philippines’ ASEAN partners has been cool. Singapore’s response was non-committal. The Ministry of Foreign Affairs stated that while there are various options for the claimants to resolve their disputes, including “negotiations, adjudication and arbitration,” it would not comment on whether the latter is the “appropriate route” (Singaporean Ministry of Foreign Affairs, January 23). Singapore did note, however, that it only came to know of the Philippines’ submission through media reports, suggesting perhaps that Manila had not adequately consulted the other member states.

In Vietnam, deputy chairman of the Foreign Ministry’s National Border Committee, Nguyen Duy Chien, responded to media queries by saying that Hanoi believes countries have the right to resolve their disputes in line with the UN Charter and international law, including UNCLOS. While Vietnam is unlikely to publicly endorse the Notification, the Vietnamese government must be applauding the Philippine submission quietly, as it too would benefit from an ITLOS ruling that declared China’s nine-dash line claims invalid.

Although ASEAN members recognize it is the Philippines’ sovereign right to pursue legal arbitration, there will be concerns that the submission might have negative repercussions for ASEAN-China relations. The Permanent Secretary of Thailand’s foreign ministry—whose country is the current coordinator for ASEAN’s relations with China—gently articulated these concerns when he said that he hoped the submission would “not affect the wider relationship” (Straits Times, January 25). Nevertheless, it almost certainly will and could provide China with another excuse not to begin talks with ASEAN on a code of conduct for the South China Sea.

As noted earlier, China has 30 days to appoint an arbitrator to the five-judge panel (the Philippines already has proposed a judge). The tribunal then has to decide whether it has jurisdiction over the case—a decision that could take it more than a year to reach. As the legal process unfolds, expect the South China Sea dispute to get a whole lot more fractious.

Notes:

1. Notification and Statement of Claim, Department of Foreign Affairs, Manila, January 22, 2013, available online<https://www.dfa.gov.ph/>.