At the Crossroads: The Situation of the South China Sea

Currently, the China-Philippines relationship is at the crossroads. In 2023, the Philippines undertook a major shift in its orientation of the South China Sea policy. The Philippines and the US strengthened the military and paramilitary cooperation in the region, announcing 4 additional military sites under the 2014 EDCA and conducting joint patrols and joint exercise in the South China Sea. Despite this, the Philippines becomes more provocative at the sea. Concerning the Ren’ai Jiao (Second Thomas Shoal), the Philippines has denied that there is a commitment to tow The Sierra Madre away,[1] but rather increased the frequency of the resupply missions to 1-2 times per month, carrying military personnel and construction materials to make the vessel “a permanent station”. In the waters of Huangyan Dao (Scarborough Shoal), the Philippines broke the special arrangement in 2016. Those activities aiming to change the status quo was firmly opposed and blocked by China. Some commentators have pointed out that “[r]ecent incidents at sea between the two have been the worst in more than a decade”.[2]

Sovereignty Dispute Remains the Fundamental Issue

China has consistently claimed the sovereignty over the South China Sea Islands, identifying them as four groups of islands as a whole. And China has always correctly pointed out that the core of the South China Sea dispute lies on the territorial sovereignty disputes over some of the maritime features in Spratlys. Thus, it cannot be ignored that the territorial sovereignty is the fundamental issue, especially considering the Philippines’ territorial claims and its actions at sea.

Source：Reuters

In its House Resolution No. 1494, the Philippines emphasizes that “China has continued its harassment of Philippine vessels in Philippine territory” without specifying the location and further details. As everyone knows, the Huangyan Dao (Scarborough Shoal) is not within the limits set for the Philippines territory by three international treaties. The map indicates the territory limits was submitted by the Philippines to the Arbitral Tribunal. In any event, the Philippines claims the territorial sovereignty over Huangyan Dao (Scarborough Shoal), and now conducts more aggressively at sea, its governmental vessels were trying to get close to the Scarborough Shoal.

Things are more complicated at the Ren’ai Jiao (Second Thomas Shoal). The 2016 Arbitral Award, stating that it “does not see that success on its submissions would have any effect on the Philippines’ sovereignty claims”[3], does make the sovereignty claim of the Philippines confusing. Before the Arbitration, the Philippines claimed the sovereignty over the “Kalayaan Island Group” as a whole on the basis of PD No.1596, and it is confirmed by its Note Verbale to the Secretary General of UN in 2011.[4] Even in the Arbitration proceeding, the Philippines claimed the Second Thomas Shoal is part of Philippine territory.[5] However, the claim was undermined by 2016 Award. Now the Philippines sidesteps this issue by repeatedly jumping between sovereign rights claim as part of its EEZ and territorial sovereignty claim as part of its so-called “KIG”.[6]

Despite this, the activities at the sea can also reveals the territorial concerns. In 1999, when the Philippines’ intentionally grounded the “Sierra Madre” on the Second Thomas Shoal, every State takes this as “a unilateral action to assert sovereignty over the Spratlys”, including the US.[7] And this was confirmed by Foreign Affairs spokesperson Ma. Teresita Daza in August 7^th, 2023, stating that the Philippines “decided to deploy a permanent station on Ayungin Shoal (The Philippines’ name for Ren’ai Jiao) in 1999”, and “will stay as a permanent station”. It is also reported that National Security Council Assistant Director General Jonathan Malaya underscored that BRP Sierra Madre is “the symbol of Philippine sovereignty in the area”.[8]

Therefore, although 2016 Arbitral Award is invoked over and over again by the Philippines, it cannot be denied that the sovereignty dispute is still the main concern hidden behind the scenes. It is important to clarify this to have a better understanding of both parties’ behaviors at sea, as well as to avoid miscalculations. For China, it is the Philippines that is going to change the status quo and thus violates the DOC, by constructing permanent structures on “Sierra Madre” that is promised to be towed away, turning it into “a permanent military station” and eventually making it permanently occupied. 

If there is no self-constraint from the Philippines’ side, there would be firm response from China in order to defense its territory.

The 2016 Arbitral Award CANNOT Resolve the Problem

Prof. Whomersley, the former Deputy Legal Adviser in the United Kingdom’s Foreign and Commonwealth Office, has correctly pointed out that the 2016 Arbitral Award failed to recognize that the fundamental dispute is about the sovereignty, and delivered a decision that can only logically be answered on the basis of resolving the sovereignty dispute.[9] It seems that 2016 Award makes lots of conclusions, but none of them touches the core and real dispute between the States and is just like the castles in the air. As we all noted, it does not resolve the territorial dispute but rather undermines the sovereignty claims of both China and the Philippines. Thus, it cannot assist the two States to resolve their real problems, but rather enlarges the gap between them.

The 2016 Arbitral Award leaves the two countries little room to negotiate and compromise, even blocks the practical cooperation between them. This is not the only story in the region. After the ICJ delivered its decision on sovereignty over Ligidan and Sipadan, it is also hard for Malaysia and Indonesia to negotiate and make an agreement on the oil and gas block issues.

As Former Philippine presidential spokesperson Rigoberto D. Tiglao has argued in his recent comment that the Philippines and “China have vastly differing views on sovereignty issues over the Spratlys. We hope though this dispute is resolved peacefully, and we call on the Chinese to sit with us as soon as possible to move to solve these very serious differences.”[10]

The Good Practice for Managing Disputes in the Region

2016 Arbitral Award cannot solve the problem. On the contrary, the ASEAN member States and China have good practice for managing disputes for decades. It usually takes long time to resolve the sovereignty and maritime disputes, but pending the final agreement, parties could manage the conflicts by self-constraint and promote practical cooperation. 

In 2002, China and ASEAN members concluded the DOC, although non-binding, it reveals the common interest of all parties, maintaining the stability and peace of this region. It was implemented in good faith by all parties for more than 20 years. Now China and ASEAN members are engaging with the COC consultation.

At bilateral levels, China and the Philippines also created good practice in managing disputes. There is Bilateral Consultative Mechanism between the two States, and it held the 7^th meeting in March. And there are also several joint working groups on many practical cooperation issues, such as oil and gas, fishery, etc. In 2016, China offers a special arrangement proposal to the Philippines from humanitarian concerns, indicating that the Philippine fishermen could keep the small-scale artisanal fishing activities around the waters of the Scarborough Shoal under some pre-conditions, and this non-binding arrangement was implemented by both parties until recently the Philippines broke the status quo. In the Second Thomas Shoal, China and the Philippines also have “gentlemen’s agreement” on the resupply missions, until the Marcos Jr.’s administration denied the arrangement.

Those practice, although many in non-binding forms, does help the parties to keep self-restraint and promote the peace and stability of the region. Chinese navy and CCG vessels never “harassed” the Filipino fishermen’s normal work. It is also reported that Filipino fishermen were rescued by Chinese naval vessel in the disputed waters in September.[11]

If those good practice of managing dispute were upheld and undisrupted, there would not be such “flashpoints” in the South China Sea.

At the Crossroads: The Possible Way-Out

President Marcos’ latest statement recognizes the need for a “paradigm shift” in how the Philippines’ approaches to the South China Sea, but he has also stated that the diplomatic efforts were headed in a “poor direction”. As noted above, the only way-out for resolve the problem is to negotiate with China to resolve the sovereignty and maritime disputes in good faith, and to manage the disputes with China through cooperation. This was summarized by ASEAN members and China as “dual-track approach”. The efforts of the regional countries and the wisdom based on the tradition and the good practice can never be ignored and undermined, it sheds the light on the way-out for the current situation, as well as the bright future of the South China Sea.

On the contrary, if the Philippines insists on changing the status quo and Challenging China at sea, China has no choice but to take a hard line of action in respond.

Reference

[1] President Estrada, feigning ignorance, promised to tow the vessel away as soon as it could be safely floated off the reef. See Poling, On Dangerous Ground, Oxford University Press, 2022, p.168.

[2] Sarang Shidore, The China-Philippines South China Sea Face-Off Requires Restraint, The Diplomats, 23^rd Dec., 2023, available at https://thediplomat.com/2023/12/the-china-philippines-south-china-sea-face-off-requires-restraint/ 

[3] Award on Jurisdiction and Admissibility (hereafter referred to as “the Award”), available on the website of the Permanent Court of Arbitration (www.pca-cpa.org), para. 153.

[4] Stating that “the Kalayaan Island Group (KIG) constitutes an integral part of the Philippines. The Republic of the Philippines has sovereignty and jurisdiction over the geological features in the KIG”, in Note Verbale from Philippine Mission to the UN, No. 000228, available at phl.pdf (un.org).

[5] MEMORANDUM FOR THE PRESIDENT, The Philippines' Memorial Volume IV, Annexes 93.

[6] House Resolution No. 823.

[7] Greg Austin, “Unwanted Entanglement: The Philippines’ Spratly Policy as a Case Study in Conflict Enhancement?,” Security Dialogue 34, no. 1 (March 2003): 51; See also Poling, On Dangerous Ground, Oxford University Press, 2022, p.168.

[8] PH to China: Sierra Madre ‘permanent station’ in Ayungin Shoal, available at https://www.pna.gov.ph/articles/1207375

[9] Whomersley, The South China Sea: The Award of the Tribunal in the Case Brought by Philippines against China—A Critique, 15 Chinese Journal of International Law (2016), 239–264.

[10] Military, Coast Guard turning PH into world's laughingstock, available at https://www.manilatimes.net/2023/12/13/opinion/columns/military-coast-guard-turning-ph-into-worlds-laughingstock/1923998

[11] PCG confirms 2 Pinoy fishermen rescued by Chinese vessel in Spratlys, https://www.cnnphilippines.com/news/2023/9/23/pcg-confirms-china-rescued-fishermen-spratlys.html