Indian Council of World Affairs

Introduction

The relations between China and Philippines have been experiencing a decline since 2009 when China tried to assert its claims over South China Sea (SCS). Philippines objected strongly to China’s claims during various bilateral consultations; it also took the matter to United Nations Secretary General. China has prevented the Philippines from carrying out oil and gas development projects and from fishing in the disputed waters. Both countries used their law enforcement agencies to stop each other from engaging in activities claimed illegal by either of them. Philippines took the matter to ASEAN but the Regional body failed to resolve the issue. So, in 2013 after years of vital engagements between both countries without a proper resolution, Philippines filed arbitral proceedings against China at Permanent Court of Arbitration in The Hague under United Nations Convention on the Law of the Seas (UNCLOS). This paper is a study of China-Philippines relations in the context of South China Sea dispute and examines the award of the Tribunal and the post arbitral relations between the Philippines and China.

The Physical Geography and Significance of the South China Sea

Map one: The South China Sea
     
Source: The Philippines Memorial submitted in Permanent Court of Arbitration, 2013

As indicated in Map one, SCS encompasses an area of 3.5million sq.kms and is abutted by coasts of seven states namely China, the Philippines, Malaysia, Brunei, Indonesia, Singapore and Vietnam (shown in Map-one above). It is traversed by a number of important shipping lanes and affords the shortest route between the Indian Ocean and northeast Asia carrying one-third of the global shipping with an estimated value of $3.4 trillion by 2016.[i] The majority of the world’s oil tankers and merchant ships pass through the SCS every year and carry nearly 30 percent of the world trade. It consists hundreds of tiny islands, rocks and reefs and may be divided into two sectors[ii].

Map Two: Northern sector of the South China Sea

Source: The Philippines Memorial submitted in Permanent Court of Arbitration, 2013

The Northern sector as shown in the Map two consists of the Pratas Island and is claimed by China and developed into a marine national park by Taiwan Authorities. ^[iii] The Northern sector also consists of the Paracel islands claimed by both Vietnam and China and the Scarborough shoal, whose sovereignty is disputed between the Philippines and China. The largest group of maritime features in the SCS lies in the southern sector as indicated in Map- three known internationally as the Spratly islands. Some important maritime features in this sector are Mischief Reef, Second Thomas Shoal, Cuarteron Reef and Fiery Cross Reef. The coastal states of SCS make extensive use of its fisheries and contain seven percent of the world coral reefs. It is widely recognised as a global centre of marine shallow-water, tropical biodiversity. It is estimated that it has 11 billion barrels of oil and 190 trillion cubic feet of natural gas reserves.[iv]                         

Map Three: Southern Sector of the South China Sea

Source: The Philippines Memorial submitted in Permanent Court of Arbitration,2013

The International Arbitration against China’s Claims by the Philippines

Over the course of last three decades, China has seized physical control of many maritime features in the SCS that fall within the Exclusive Economic Zone (EEZ) and continental shelf of adjacent countries and consolidated control over it by building artificial islands and other permanent structures for military purposes[v]. In 1947, China renamed the maritime features of the SCS islands and in 1948, published an official map which displayed a dotted line in the SCS. In its declaration of 1958[vi], it included major island groups such as Dongsha (Pratas) Islands, Xisha (Paracel) islands, Zhongsha islands (Macclesfield bank) and Nansha (Spratly) Islands into its territory and tried to legitimise its claims. China in its note Verbale in 2009 to the United Nations Secretary General claimed major part of SCS with its nine-dash line as shown in the Map four and said that it has indisputable jurisdiction over islands in SCS and adjacent islands.[vii]                     

Map Four: China’s official Nine-Dash Line Map, 2009

Source: The Philippines Memorial submitted in Permanent Court of Arbitration, 2013

China alleged that the Philippines have an illegal occupation of the Spratly islands in which the Philippines explored and exploited the resources.[viii]  In April 2012,Chinese vessels dislodged Filipino fishermen from Scarborough shoal- an area around which they historically fished and China erected a physical barrier around the entrance to the shoal to prevent Philippine vessels from navigating anywhere in the vicinity. China also obstructed the Philippine oil and gas exploration activities in areas of EEZ of the Philippines including at the reed bank and elsewhere.[ix]

On 22 January 2013, the Philippines instituted an arbitral proceeding in the Permanent Court of Arbitration at The Hague against China under Annex VII of the United Nations Convention on the Law of the Sea, primarily regarding maritime rights, entitlements and Zones in the SCS, as well as for the protection of the marine life and the environment of the region. The failure of China and Southeast Asian leaders to resolve the disputes by diplomatic means and the ongoing tensions due to arms build-up in the disputed water of the SCS led to the Philippines filing arbitral proceedings against China. In particular, the following four issues, were raised by the Philippines[x]

1) To resolve a dispute between the parties regarding the source of maritime rights and entitlements in the SCS;

2) To resolve a dispute between the parties concerning the entitlements to maritime zones that would be generated under the Convention by Scarborough Shoal and certain maritime features in the Spratly Islands that are claimed by both the parties;

3)To resolve a series of disputes concerning the lawfulness of China’s actions in the South China Sea, interfering with Philippines’ rights, failing to protect and preserve the marine environment, and inflicting harm on the marine environment (through land reclamation and construction of artificial islands);

4) To find that China has aggravated and extended the disputes between the Parties by restricting access to a detachment of Philippines Marines stationed at Second Thomas Shoal.

Tribunal Award

China entirely refused to participate in the arbitration process and has completely rejected the decisions of the PCA-administered tribunal.[xi] Nonetheless, the Tribunal continued its proceeding stating under Annex VII of UNCLOS that, in the event that a party does not participate in the proceedings, a Tribunal “...Must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law....” The tribunal found that it had jurisdiction related to historic rights and the source of maritime entitlements in the SCS.

On July 12, 2016, the Tribunal award announced by the Permanent Court of Arbitration concluded “..that there was no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line’...[xii] On China’s historic rights to resources in the waters of the South China Sea, the Tribunal concluded that “..such rights were extinguished to the extent they were incompatible with the exclusive economic zones provided for in the Convention...”[xiii] According to Article 57 of UNCLOS, “..the exclusive economic zone shall not extend beyond 200 nautical miles....”[xiv] Further, the Tribunal ruled that since all the features in SCS are either low tide elevations or rocks that cannot sustain human habitation or economic life, therefore China shall have no rights for EEZ or continental shelf. Based on historical evidence, the Tribunal found that the Spratly Islands were used by Chinese fishermen for transitory use and were never inhabited. Therefore, there was no evidence that China had historically exercised exclusive control over the waters or their resources. The Tribunal also found China’s activities in the EEZ of the Philippines such as interfering fishing and petroleum exploration, constructing artificial islands; a violation of Philippines’ sovereign rights. Further, China’s large-scale land reclamation and construction of artificial islands at seven features in the Spratly Islands was found to cause severe harm to the coral reef environment and violated its obligation to preserve and protect fragile ecosystems.[xv]

Post-arbitral relations         

During the 2016 presidential campaign, Rodrigo Duterte was highly critical of the Aquino Administration’s geo-strategic agenda of China in the SCS. However, less than three months in office after the Permanent Court of Arbitration land-mark award to the Philippines, he began to normalise the relations with China. In an effort to promote cooperation, Duterte appointed former President Fidel Ramos as his special envoy to meet Chinese officials, with the aim of rekindling the Sino-Philippine relations.[xvi] The Philippine leader admitted his country needed to re-establish a friendly relationship with China and learn from the latter's success in economic policy and trade, especially given the turbulent global economic conditions. To demonstrate its willingness for engagement, China lifted restrictions on the import of Philippine fruits that had been in place since the 2012 conflict over the Scarborough shoal.[xvii]

President Rodrigo Duterte undertook a State Visit to China on 18-21 October 2016 and met with President Xi Jinping and other higher officials of Chinese Government.[xviii] During the visit various MoUs and Agreements were signed to promote bilateral relations.[xix] China committed nearly $24 billion worth of investments, soft loans or official development assistance for large‐scale Philippine infrastructure projects and flagship programs.[xx]

On 20-21 November 2018, Chinese President Xi-Jinping undertook a State Visit to the Philippines upon the invitation of President Duterte.[xxi] During their meeting, the two leaders discussed how to further enhance economic and functional co-operation in key areas. This visit was important for the Philippines because both countries signed a MoU on joint oil and gas development in SCS; formed an intergovernmental joint steering committee and other working groups between their petroleum companies.

President Duterte tried to build good relations with China by setting aside the 2016 Arbitral Award; however China has never produced the expected results and continued its assertiveness over the disputed Islands and Reefs in the SCS[xxii]. In 2019 China encircled the Thitu Islands (Pag-asa), one of the largest in Spratly Islands with hundreds of militia boats to prevent Philippine authorities to build and develop various infrastructure projects on the island[xxiii]. In January 2021, China authorised its Coast Guard to fire on foreign vessels if needed[xxiv]. From 2016 till now, the Philippines lodged 84 diplomatic protests against China over illegal fishing activity or Coast Guard presence in its waters and for creating obstacles for petroleum exploration operations.[xxv] These incidents complicated the bilateral relations.

President Duterte faced backlash at home as well as growing pressure by traditional Philippine allies, especially the United States, Japan and Australia, to assert the arbitration award and accordingly confront China.[xxvi] In the recent months, Manila has moved to fully reinstate its security ties with the United States. Steps include a series of high level visits, the restoration of defence agreements, and Manila’s full endorsement of AUKUS security pact,[xxvii] bilateral security dialogues and resuming military exercises. The US government has also vowed to provide US $26.5 million to Philippine law enforcement agencies over the next two years to assist its counterterrorism efforts.[xxviii]

In early 2020, the Duterte Administration started to assert PCA ruling and called upon China to recognise the Arbitration award. On September-22 2020, during virtual address at UN General Assembly, Rodrigo Duterte said “The award is now part of international law, beyond compromise and beyond the reach of passing governments to dilute, diminish or abandon. We firmly reject attempts to undermine it...” On July 12, 2021 the Philippine Foreign Minister Teodoro L. Locsin released a statement saying “..thus, the Arbitral Award became and continues to be a milestone in the corpus of international law. It is available to other countries with the same problematic maritime features as ours.  It puts one issue out of the way of conflict; because there is nothing there taken by force that result in any gain in law.”[xxix]This clearly shows the country’s commitment for defending its sovereignty in the SCS.

Conclusion:

China-Philippine bilateral relations have gone through many ups and downs during the past decade. China’s incursions and forceful assertion of sovereignty over SCS which also includes EEZ of Philippines, led to the filing of the arbitral proceedings at the Permanent Court of Arbitration against China in 2013. After the 2016 Arbitration award, the bi-lateral relations between both countries briefly improved following Duterte’s state visit which resulted in investments and grants by China for the development of Philippines infrastructure. But China refused to neither participate nor accept the Arbitration award while continuing to forcibly assert itself in the EEZ of Philippines. From 2016 till date, the Duterte administration has filed 84 diplomatic protests against Chinese behaviour. Renewed engagement with allies namely United States and Japan along with growing public opinion have resulted in Duterte administration upholding the Arbitration award and openly criticising  China’s behaviour. Maintaining maritime sovereignty in SCS and balancing bilateral relations with China and the US will be a challenge for the Philippines in the coming future, and could also figure in the election campaign of the upcoming phillippines presidential election in 2022.

*****

*Md. Mudassir Qamar, Research Intern, Indian Council of World Affairs, New Delhi
Disclaimer: Views Expressed are Personal. 

End notes

[i] O, Marvin. The South China Sea in Strategic Terms, Wilson Center,[Online] 14 May 2019. [Cited: 29

October 2021.] https://www.wilsoncenter.org/blog-post/the-south-china-sea-strategic-terms. 

[ii] MFA. The Geographical and Historical Context, Memorials of the Philippines. Chapter-2, Manila : Permanent Court of Arbitration, 2013. 

[iii] Liao, George. Taiwan's Amazing Dongsha Atoll National park in South China Sea. Taiwan News. https://www.taiwannews.com.tw/en/news/3709046, 2019. Accessed on 28 Oct 2021. 

[iv] Philippines, MFA. The Geographical and Historical Context of south china sea. chapter-ii, Manila : permanent court of Arbitration, 2013 

[v] BBC. South China Sea: what’s china's plan for its 'great wall of sand'? BBC News. [Online] 14 JULY 2020. [Cited: 29 October 2021.] https://www.bbc.com/news/world-asia-53344449 

[vi]   Department, US state. China: Maritime claims in the South China Sea. New York: state bureau of oceans and International environmental and scientific affairs, 2014. 

[vii] China, People’s Republic of. Note Verbale from the Permanent Mission of the People’s Republic of China to the United Nations to the Secretary-General of the United Nations. Note Verbale. New York: s.n., 2009. CML/2/2009

[viii] China reiterates islands claim after Philippine UN move, 23 January 2013, BBC NEWS, https://www.bbc.com/news/world-asia-21163507 , Accessed on 04 December 2021 

[ix]Randy Fabi, Manuel Mogato, Insight: Conflict looms in South China Sea oil rush, February 28, 2012, Reuters, https://www.reuters.com/article/us-china-spratlys-philippines-idUSTRE81R03420120228 ,Accessed on 04 December 2021 

[x] Philippines, MFA. Chapter-1 Introduction and overview. Memorials of the Philippines. Manila: Ministry of foreign affairs, Philippines, 2014. Vol. 1. 

[xi] Issued by the PRC Ministry of Foreign Affairs:

“Position Paper of the Government of the People’s Republic of China on the Matter of

Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the

Philippines” https://www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1368895.htm , 2014, Accessed on 17 Oct 2021. 

[xii] Permanent Court of Arbitration, The South China Sea Arbitration (The Republic of The Philippines v. The Peoples’ Republic of China, press Release, 12 July 2016 The Hague : PCA. https://pcacases.com/web/sendAttach/1801  ,  Accessed on 18 Oct 2021. 

[xiii] Ibid

[xiv] “Part Five: Exclusive Economic Zone”, UNCLOS, https://www.un.org/depts/los/convention_agreements/texts/unclos/part5.htm, Accessed on 4 Jan 2022 

[xv] Permanent Court of Arbitration, The South China Sea Arbitration (The Republic of The Philippines v. The Peoples’ Republic of China, press Release, 12 July 2016 The Hague : PCA. https://pcacases.com/web/sendAttach/1801  ,  Accessed on 18 Oct 2021. 

[xvi] LI YINZE and DENG YANZI, Ramos visit paves way for progress, 2016-08-19, Asia Weekly, https://www.chinadailyasia.com/asia-weekly/article-8680.html , Accessed on 28 Oct 2021. 

[xvii] China lifts import ban on Philippine bananas, Department of Trade and Industry(Republic of Philippines), October 7, 2016, https://www.dti.gov.ph/negosyo/exports/emb-news/china-lifts-import-ban-on-philippine-bananas/ 

[xviii] PHL-CHINA RELATIONS, DIPLOMATIC RELATION, Republic of Philippines embassy in Beijing. 

[xix] Joint statement of the Republic of the Philippine and the people’s Republic of China, Philippine Missions, October 21,2016 

[xx] Willard Cheng, Duterte heads home from China with $24 billion deals, ABS-CBN NEWS ,Oct 21 2016 https://news.abs-cbn.com/business/10/21/16/duterte-heads-home-from-china-with-24-billion-deals, Accessed on 15 Nov 2021. 

[xxi] Xi arrives in Philippines for state visit, 2018/11/20,Embassy of People’s Republic of China in The Republic of Philippines, https://www.mfa.gov.cn/ce/ceph//eng/chinew/t1614967.htm , Accessed on 18 Nov 2021.

[xxii] Derek Grossman, Duterte's Dalliance with China Is Over, RAND Corporation, November 2, 2021, https://www.rand.org/blog/2021/11/dutertes-dalliance-with-china-is-over.html ,  Accessed on 26 Oct 2021.

[xxiii] The long patrol: Stare down at Thitu island enters its sixteenth month, Asia Maritime Transparency Initiative, march 5, 2020

[xxiv] Yew Lun Tian, China authorises coast guard to fire on foreign vessels if needed, Reuters, JANUARY 22, 2021 

[xxv] The Hindu, Philippines protests China’s ‘illegal’ South China Sea presence, MAY 29, 2021. https://www.thehindu.com/news/international/philippines-protests-chinas-illegal-south-china-sea-presence/article34678163.ece , Accessed on 24 Nov 2021.

[xxvi] Sofia Tomcruz, 4 years after historic win, big majority of Filipinos still want Philippines to assert Hague ruling, Rappler.com , July 14,2020 

[xxvii] Statement of THE HONORABLE TEODORO L. LOCSIN, Jr.Secretary of Foreign Affairs, On the Australia-United Kingdom-United States (AUKUS) Enhanced Trilateral Security Partnership, 19 September 2021. 

[xxviii] Dr Temjenmeren Ao, Philippines managing its Relations with China since July 2016,Indian Council of World Affairs, 31 July 2019, /show_content.php?lang=1&level=3&ls_id=4281&lid=2016#_ftnref18 , Accessed on 26 Nov 2021.

[xxix] Statement of foreign Affairs Secretary Teodoro L. locsin, jr. on the 5^th anniversary of the issuance of the award on the south china sea arbitration, July 12, 2021,Department of Foreign Affairs, Philippines.