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After 5 Years: South China Sea Arbitration Award and Philippine-China Relations

Jul 28, 2021

On July 7, just five days before the fifth anniversary of the South China Sea arbitration award, the Deputy Speaker of Philippine Congress Rufus Rodriguez filed a resolution, which called for turning July 12 into an annual celebration of “National West Philippine Sea Victory Day.”

With the next Philippine elections just over the horizon, the patriotic move was also a politically astute one, considering that as many as 8 out of 10 Filipinos want the government to assert the 2016 arbitral tribunal award at The Hague, which reaffirmed the Southeast Asian country’s maritime entitlement claims in the South China Sea. Top Philippine allies such as the United States, which itself is yet to ratify the United Nations Convention on the Law of the Sea (UNCLOS), have also backed the arbitration award as an instrument of legal warfare (“lawfare”) against China.

In a lengthy statement, the U.S. Secretary of State Antony Blinken was quick to celebrate the fifth anniversary of the award, which “delivered a unanimous and enduring decision firmly rejecting the PRC [People’s Republic of China[ expansive South China Sea maritime claims as having no basis in international law.” In response, Chinese Foreign Ministry lambasted the arbitral award as piece of "waste paper" and characterized the Biden administration’s most recent statement as a "political farce" to smear China. Squeezed between two superpowers, and under pressure at home, the Rodrigo Duterte administration has tried to square the circle by adopting often contradictory statements. The upshot is an incoherent foreign policy, which has purchased a measure of stability in Philippine-China relations at the cost of potentially creating long-term uncertainty. The way forward, however, is for both sides to explore a ‘middle ground’, which could outlast tempestuous domestic politics and help preserve a measure of peace and stability in the region. 

Strategic Rollercoaster 

The Philippines’ decision to take its South China Sea claims to an international court was forged in a cauldron of desperation. Following a months-long naval standoff with China in 2012, and unable to secure military support from the Obama administration, the Philippines effectively lost any form of administrative control over the fishery-rich Scarborough Shoal, just 100 nautical miles from Philippine shores. 

Both the Philippines and China consider the shoal as part of their national territory, creating immense geopolitical sensitivity. Backdoor negotiations over a ‘mutual disengagement’ plan between the Philippines and China also miserably failed. 

In response, the late Philippine President Benigno Aquino III entertained suggestions by then Foreign Secretary Albert Del Rosario for a lawfare strategy in the South China Sea. As early as January, 2013, just months after the Scarborough Shoal showdown, the Philippines initiated ‘compulsory arbitration’ proceedings under the United Nations Convention on the Law of the Sea (UNCLOS) against China, hoping to exert pressure on the Asian superpower through international courts. 

Claiming that China has ‘inherent and indisputable sovereignty’ over the contested land features in the South China Sea, Beijing adopted a “three no's” policy of non-participation, non- recognition and non-compliance vis-à-vis the entire arbitration case. The Asian powerhouse also questioned the jurisdiction of the court as well as invoked its right to seek exemption from international adjudication over territorial issues. 

After more than three years of deliberation, the arbitral tribunal at the Hague issued a final award, which broadly sided with Philippine maritime claims at the expense of China’s ‘nine-dashed-line’ and ‘historic rights’ claims. The adjudication body maintained that it has jurisdiction over the case, since it involves ‘sovereign rights’ and maritime entitlement claims rather than territorial disputes. 

Crucially, however, the final award, which was categorically rejected by China and its global allies, came just a month after former president Aquino stepped down from office. The new Philippine president, Rodrigo Duterte, was quick to prevent direct confrontation with China in favor of a ‘soft landing’, thus paving the way for friendly and fruitful relations under his watch.  

Right after his high-profile visit to Beijing in late-2016, the Filipino president declared that he is ‘set[ting] aside’ the arbitration award in favor of warmer ties with China. And earlier this year, he echoed Beijing’s position by arguing that the award is 'Just a piece of paper,' thus it’s not worth fighting over. 

Finding a Middle Ground

It didn’t take long before Duterte faced backlash at home as well as growing pressure by traditional Philippine allies, especially the U.S., Japan and Australia, to assert the arbitration award and, accordingly, confront China.

The Philippine Department of Foreign Affairs, filled with veteran diplomats, including those involved in the arbitration proceedings, was quick to reiterate that the country stands by the arbitration award, effectively contradicting the president. 

Last year, Philippine Foreign Affairs Secretary Teodoro Locsin Jr. went so far as stating the arbitral award is “non-negotiable” and praised the ruling as “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. 

On the fifth anniversary of the award, the top Filipino diplomat maintained that the award “conclusively settled the status of historic rights and maritime entitlements in the South China Sea.” The Philippine Defense Secretary Delfin Lorenzana has adopted a similar position throughout the years, once even going so far as openly invoking the arbitration award during the Whitsun Reef standoff earlier this year. 

Internal pressure, including from within his cabinet, may explain why Duterte effectively contradicted himself during a virtual speech before the UN General Assembly, where he declared, “The award is now part of international law, beyond compromise and beyond the reach of passing governments to dilute, diminish or abandon,” and that his administration “firmly reject[s] attempts to undermine it.”

In short, neither Duterte nor his critics have been able to fully shape the Philippines’ position on the arbitration award and, more broadly, bilateral relations with China. The outcome is a contested and confusing Philippine foreign policy. With Duterte’s term set to end in less than a year, it’s perhaps high time for the Philippines and China to explore a ‘middle ground’ to anchor bilateral relations for years if not decades to come, no matter who becomes the next Filipino president.

Down the road, the Philippines and China can, and should, explore (i) the establishment of joint marine sanctuaries in contested areas, where fisheries stock and coral reefs are at danger; (ii) step up friendly exchanges among their maritime forces and examine prospects of joint patrols in hotly contested areas such as Scarborough Shoal; and (iii) drawdown provocative naval exercises in the South China Sea and rein in armed militia forces, which may trigger full-scale confrontation among rival claimants. 

Ultimately, China, the Philippines and other claimant states should finalize decades-long negotiations over a legally-binding ASEAN-China Code of Conduct in the South China Sea, which would help de-escalate tensions and pave the way for peaceful and mutually beneficial management of the disputes. Otherwise, the maritime disputes will get ever-more complicated, contentious and potentially explosive, as hardliners and external powers seek to shape the future of the South China Sea. 

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