The Philippines’ lawfare (legal warfare) against China has reached a critical juncture. More than two years after initiating compulsory arbitration against China, the Southeast Asian country faces the crucial task of proving that the Arbitral Tribunal, formed under the aegis of the United Nations Convention on the Law of the Sea (UNCLOS), has the mandate to exercise jurisdiction on the South China Sea disputes.
Unless the Philippines manages to overcome the jurisdictional hurdle, which many legal experts consider a formidable obstacle, it will not be able to meaningfully leverage international legal regimes to alter China’s calculus in the South China Sea. What is at stake, however, is not only the peaceful resolution of an increasingly intense maritime jostling in one of the world’s most important sea lines of communications (SLOCs), but also the very credibility of international legal instruments as the ultimate arbiter of interstate relations.
Underscoring the relevance of the ongoing hearings at The Hague, as many as five Asian countries have sent representatives to observe the viability of the Philippines’ legal maneuvers against China. Vietnam, Japan, and Malaysia, which are also locked in bitter territorial disputes with China, are carefully assessing whether the UNCLOS could serve as a useful framework to manage, if not resolve, intractable territorial disputes in the Western Pacific.
Meanwhile, Philippine-China diplomatic relations have reached a new nadir, with the Aquino administration rejecting any bilateral dialogue with its powerful neighbor. For now, Manila seems to be putting all its eggs in the legal basket, dispatching top officials from all branches of the state to attend the Hague hearings.
An Uncertain Challenge
The Philippines is the only country to have resorted to compulsory arbitration (under Art. 287 and Annex VII of UNCLOS) against China, with its case resting on at least five key arguments. Primarily, the Philippines is questioning China’s claim to “historical rights” over the South China Sea based on a range of dubious claims and ancient maps. These, in turn, constitute the foundations of its notorious Nine-Dashed-Line claims.
The Philippines has also called on the Tribunal to clarify (under Art. 121 of UNCLOS) the nature of disputed features in the South China Sea. While Beijing tends to characterize most of these features as islands, which can generate their own 200 nautical miles Exclusive Economic Zones (EEZ) and continental shelves, Manila instead claims that at most they are only rocks and high-tide elevations, which can generate a maximum of 12 nautical miles territorial seas. The Philippines rejects any overlap in EEZs with China, the southernmost shore (Hainan) of which lies almost 670 miles away from the island chain. For many countries, the bulk of the features in the South China Sea are low-tide elevations, meaning they cannot be legally appropriated at all.
Closer to home, the Philippines is also seeking compulsory arbitration against China’s forcible acquisition of the Scarborough Shoal in mid-2012, continued deployment of paramilitary patrols to intimidate and disrupt the activities of Filipino fishermen and troops within its EEZ, and various forms of intimidation tactics, which have prevented the Philippines from developing its hydrocarbon resources in the area, especially in the Reed Bank. The Philippines has also raised concerns over the tremendously destructive environmental impact of China’s massive land reclamation activities and relentless exploitation of marine and fisheries resources across the South China Sea.
China’s primary counter-strategy, however, is to nip the legal challenge in the bud by raising procedural-technicality questions. These were laid out in its 2014 position paper, which can be read as an informal counter-memorial.
The Way Forward
The arbitration bodies under UNCLOS do not have the mandate to rule over sovereignty-related questions. China also reiterates its 2006 declaration, whereby it cited exemptions (under Art. 298 of UNCLOS) against third-party arbitration over issues that concern territorial claims, among others. China also contends that the Philippines has prematurely sought third-party arbitration, since the Southeast Asian country has supposedly not exhausted alternative mechanisms such as bilateral negotiations.
The challenge for the Philippines, therefore, is to prove that its case transcends sovereignty-related questions and that compulsory arbitration is a justified approach in light of the alleged inefficacy and exhaustion of alternative mechanisms. This will not be easy. Legal experts are divided on whether the Philippines can decisively overcome the jurisdiction question. But if it manages to do so, then China is vulnerable to similar suits from countries like Vietnam, which are carefully observing whether the UNCLOS is a viable tool to push back against Chinese maritime expansionism.
Given the importance of the South China Sea to regional trade and transport of energy resources, almost all countries have an interest in preventing a single power from coercively dominating the area at the expense of freedom of navigation and overflight. This is why it is crucial for the Tribunal to seek Chinese clarifications regarding its concept of “historical rights/waters” as well as its sweeping Nine-Dash Line claims. Astonishingly, Beijing is yet to clarify the precise coordinates of and legal justifications underpinning its South China Sea claims.
The Philippines is engaged in a crucial effort to ensure all claimant states align their claims in accordance to prevailing international legal regimes. Bilateral engagement with China, however, is a strategic inevitability. If the Tribunal turns down jurisdiction, however, then the formation of a “conciliation commission” (under Annex V of UNCLOS) is another option to seek third-party advisory on the status and validity of claims in the South China Sea. Even if the Philippines overcomes the jurisdiction hurdle, it will still need to bilaterally engage with China.
After all, the Tribunal has no mechanism to enforce any unfavorable verdict against China, while it is extremely crucial for Manila and Beijing to at least maintain some dialogue on establishing much-needed confidence-building measures to avoid accidental clashes and military escalation in the increasingly-congested Spratlys. The Aquino administration may have placed too much emphasis on its inherently uncertain lawfare at the expense of much-needed bilateral dialogue with its powerful neighbor, which seems determined to snub and defy the ongoing hearing at The Hague at all costs.