In the early dawn of July 12, 2020, the Department of Foreign Affairs (DFA) of the Philippines issued a statement on the fourth anniversary of the issuance of the arbitral award on the South China Sea dispute. Foreign Affairs Secretary Teodoro Locsin declared that the arbitration case initiated and won by the Philippines versus China is a contribution “of great significance and consequence to the peaceful settlement of disputes in the South China Sea and to the peace and stability of the region at large.” He said that the tribunal “authoritatively ruled that China’s claim of historic rights to resources within the sea areas falling within the nine-dash line has no basis in law.” He then mentioned that the tribunal also ruled that “certain actions within the Philippines’ exclusive economic zone violated the Philippines’ sovereign rights and were thus unlawful.” He also stated that the large-scale reclamation and construction of artificial islands and the large-scale harvesting of endangered marine species had aggravated the disputes in the South China Sea.
This is the first time that the Philippines, under the Duterte administration, has publicly called on China to comply with the 2016 arbitral award that invalidated many of its claims over the resource-rich and strategically located South China Sea. This could mean that after four years, the Philippines is realigning its foreign policy with the 2016 arbitration and challenging China’s expansive maritime claims.
Other Countries Adopted the Orphan
Four years ago, then newly inaugurated Philippine president Rodrigo Duterte sought to earn China’s goodwill so that his country could normalize its diplomatic, trade, and investment relations with this emergent economic powerhouse. He decided to set aside the ruling, promising to raise it with China at a proper time. This effectively made the ruling a legal orphan. However, it cannot be denied that the July 12, 2016 arbitral tribunal ruling dealt a major blow to the legitimacy of China’s claims in the global commons even after China refused to recognize the ruling and the Duterte administration disowned the case. Other parties in the South China Sea dispute, consequently, found the ruling that China’s claim of historical ownership of the disputed waters as unsupported by legal and historical evidences useful for their own respective agendas.
On December 2019, Malaysia made a new submission of an extended continental shelf (ECS) claim to the United Nations Commission on the Limits of the Continental Shelf (CLCS). Malaysia’s 2019 ECS submission represented a positive step forward for coastal states to clarify their claims and seriously discuss maritime delimitation in accordance with the United Nations Convention on the Law of the Sea (UNCLOS) and the 2016 arbitral tribunal’s findings. This move effectively rejected the validity of the nine-dash line claim, even though Malaysia was not a party to the Philippines’ South China Sea case against China.
On May 26, 2020, Indonesia submitted a note verbale to the United Nations Secretary General Antonio Guterres stating that China’s wide-ranging claim implying historical rights in the South China Sea, clearly lacks international legal basis, thus, Indonesia “is not bound by any claims made in contravention to international law.” Strengthened by the 2016 arbitral ruling, Jakarta is challenging the questionable Chinese maritime claims that are chipping away internationally recognized norms and the current rules-based maritime order. Specifically, Indonesia is challenging Chinese acrobatic legal terms such as “traditional fishing rights” and “jurisdiction over relevant waters” that China uses in justifying its expansive maritime claims that encroach on Indonesia’s exclusive economic zone off the Natuna Islands.
Now is the Proper Time?
Four years after President Duterte set aside the award, China has not reciprocated the Philippines’ diplomatic concessions. As China has delayed the funding of various infrastructure projects under Duterte’s “Build, Build, Build” program, coercive actions against Philippine military aircraft and ships operating in the South China Sea have continued unabated. On February 17, a People’s Liberation Army’s Navy corvette directed its Gun Control Director toward the Philippine Navy’s anti-submarine corvette BRP Conrado Yap near Commodore Reef in the South China Sea. In early April, China started the operations of two maritime research stations on two artificial islands that are claimed by the Philippines: Fiery Cross (Kagitingan) and Subi (Zamora) Reefs. On April 18, the State Council of the city of Sansha announced the establishment of two new districts to administer the disputed waters in the South China Sea.
Despite the Duterte administration’s decision to set aside the 2016 awards, China has continued its aggressive actions in the South China Sea. It would seem that this has finally convinced the Philippines that now is the time to raise the arbitral award. In his July 12th statement, Secretary Locsin asked China to comply with the award, reasoning that: “Compliance in good faith with the award would be consistent with obligations of the Philippines and China under international law, including the UNCLOS to which both parties are signatories.” The statement ends with an enigmatic caveat that the “award is non-negotiable.”
On July 13, 2020, U.S. Secretary of State Michael Pompeo issued a statement on the South China Sea declaring that “Beijing’s claims to offshore resources across most of the South China Sea are completely unlawful, as is its campaign of bullying to control them.” His statement aligned the U.S. position on China’s maritime claims in the South China Sea with the 2016 tribunal arbitral ruling that declared this claim as inconsistent with the UNCLOS.
The following day, Chinese Foreign Minister Wang Yi called Secretary Locsin. Wang assured his Filipino counter-part that China will continue to work with all parties, including the Philippines, to properly handle the maritime issues through dialogue and consultation. He added that China will continue to work with the Philippines in the spirit of the Declaration on the Conduct of Parties in the South China Sea to uphold peace and stability in the region.
These developments put the Philippines at a crossroads. On the one hand, it could pursue a policy that is the “opposite of appeasement” by challenging China’s expansion in the South China Sea through international law, now with the support its only treaty ally and other ASEAN member-states. On the other hand, it could continue working with China to handle the dispute through dialogue and consultation. This would mean prolonging its risky and as yet unrewarding acquiescence to China’s “might makes right” approach in the South China Sea.
