Finally, on July 12th, 2016, the Permanent Court of Arbitration (PCA) at The Hague released the decision of the five-member International Arbitral Tribunal on the South China Sea disputes case filed by the Philippines against China. From the moral victory that the Philippines enjoyed when it filed the case in January 2013, Manila now has the legal victory to support its maritime entitlements in the South China Sea, particularly in the maritime domain it calls the West Philippine Sea.
The ruling not only benefits the Philippines but also other claimants and even non-claimants in the South China Sea when the judges unanimously invalidated China’s excessive nine-dash line claim based on historic rights. The tribunal argues that the ratification of the United Nations Convention on the Law of the Sea (UNCLOS) renders invalid China’s historic rights in waters that are now part of either Exclusive Economic Zone (EEZ) or continental shelves of other littoral states in the South China Sea.
For the Philippines, the ruling is very significant because it strongly asserts the rights of Filipinos to fish at the Scarborough Shoal. The tribunal declared the Scarborough Shoal as a mere rock that is only entitled to a 12-nautical miles territorial sea, contrary to China’s claim that it is an island that can generate a 200-nautical mile EEZ. The tribunal ruled that China violates the Philippines’ sovereign rights when China Coast Guard denies Filipino fishermen full access to the shoal. The tribunal also declared China’s maritime law enforcement activities at Scarborough Shoal as unlawful.
The ruling is also of vital importance for the Philippines when it comes to the issue of the Reed Bank, an area that is considered by the Philippine government to be very rich in oil and natural gas. The tribunal ruled that the Reed Bank is a submerged feature that rightfully belongs to the Philippines’ continental shelf. Thus, China violated the Philippines’ rights when Beijing’s law enforcement vessels hamper oil and natural gas exploration activities of the Philippines at the Reed Bank. The same ruling also applied to the Second Thomas Shoal when the Tribunal declares it as a submerged feature that belongs to the Philippines’ continental shelf. The tribunal, however, did not clarify on whether China’s harassment of Filipino troops at the Second Thomas Shoal violates maritime rights of the Philippines.
What is more significant to the Philippines is that the tribunal declared illegal China’s construction of facilities on Mischief Reef that started in 1995. The tribunal asserted that Mischief Reef is part of the Philippines’ continental shelf. Thus, China’s continuing facilities development on Mischief Reef is a strong violation of the Philippines’ sovereign rights to its EEZ and continental shelf.
Though the tribunal accepted the Philippine argument that classifies other features like Johnson Reef, Cuarteron Reef, and Fiery Cross Reef as high-tide features while Subi Reef and Hughes Reef classify as submerged features at high-tide, it rejected the Philippine contention that Gaven Reef and McKennan Reef classify as submerged features. The tribunal said that Gaven and McKenna Reefs are high-tide features.
Most importantly, the tribunal declared that none of the geographic features in the Spratlys (Itu Aba, Thitu, Spratly, Northeast Cay and Southwest Cay) are islands and are therefore not entitled to EEZs or continental shelves. These features are, however, entitled to claim 12-nautical mile territorial seas.
There is no doubt that the arbitral ruling has tremendous implications not only for Philippines-China relations but also for the overall relations among claimants and non-claimants in the South China Sea. But what will be the direction of Philippines-China relations after the arbitration? What will be the Philippines’ next move now that it has the legal victory? What will be China’s next actions after its legal defeat?
In his first cabinet meeting on June 30th, 2016, President Rodrigo Duterte already instructed his officials not to “taunt” or “flaunt” the arbitral ruling. New Foreign Affairs Secretary Perfecto Yasay followed the Presidential instruction when he only made a brief diplomatic statement when the Philippine government received the ruling. In fact, the Philippine government called for restraint and sobriety following the ruling.
Apparently, the Philippine government does not want the ruling to be a reason for the escalation of security tensions in the South China Sea, acknowledging the enormous enforcement challenge with China’s rejection and non-acceptance of the ruling. Though some Filipino protesters have strongly demanded China to leave the West Philippine Sea, the Philippine government is more circumspect in its reactions in order not to agitate China, which is currently suffering from the humiliation caused by the ruling.
Immediately after receiving the ruling, President Duterte called for an emergency meeting of Cabinet Cluster on security to identify the Philippines’ next move. There is a general understanding under the Duterte Administration on the strong need to repair damaged political ties with China. In fact, President Duterte has opened his channels of communication with President Xi Jinping in order to rebuild their confidence and to usher a new era in Philippines-China relations. In a very rare situation, President Xi, himself, twice congratulated President Duterte for winning the presidency and assured the Philippines of China’s goodwill as a close neighbor.
President Duterte is now counting on China’s goodwill. Thus, China needs to be reminded of its promise of goodwill when it takes its next actions in the South China Sea. The arbitral ruling should guide China on how to behave more responsibly in the South China Sea.