Andrei Lungu | 7 October 2021 As China continues its economic, technological and geopolitical rise, its leadership’s unstated goal seems to be overtaking the United
The South China Sea is a valuable asset for most Asian countries. It possesses great resources, it is an important point of transit and it provides numerous strategic advantages for those who have access to it. But these characteristics also make the South China Sea a disputed area and a trigger factor of conflicts between countries. A good example in this respect is the friction between China and the Philippines.
Serious tensions between China and the Philippines over the South China Sea started in 2011. Back then, two Chinese patrol boats approached a Philippine survey ship, Veritas Voyager, in the Reed Bank, a group of islands lying west of the Philippines’ Palawan Island, demanding that it stops any activity on the basis that it is operating in an area of Chinese jurisdiction. The Philippines reacted by sending over an attack aircraft and an observation one in order to make sure that Veritas Voyager’s activity will be completed in the Reed Bank.
A year later, the Philippines accused China of deploying vessels in the Scarborough Shoal, emphasizing the fact that their purpose was to perform fishing activities, despite the fact that the two countries took the commitment to ban seasonal fishing. China responded by saying that the vessels acted in accordance with Chinese law and the fishing agreement. Furthermore, when the Philippines’ authorities tried to arrest the Chinese fishermen on the basis that they were operating in the Philippines’ exclusive economic zone, Chinese government vessels blocked the access of the Filipino ones. With this move, China took over the effective control over the Scarborough Shoal, an action which brought its relations with the Philippines at the lowest point. In the same time, this event made the Philippines realize that China is not a trustworthy partner and its actions are oriented to dominance rather than cooperation and diplomacy. The way China seized Scarborough Shoal had a strong impact on the Philippines and it was perceived as a territorial takeover, especially considering the fact that the access of the Filipino fishermen was completely denied in an area which was traditionally used by them.
Then, another bold move was taken by China at the end of 2012 when it was announced that, starting with January 1st 2013, a new rule will allow Hainan police (from China’s southernmost province) to intercept the ships which transit the South China Sea and demand that they require permission before entering in the region.
Among Asian countries, China is the most interested one in respect to the South China Sea, trying to dominate the entire area and claiming almost all of it. In order to underline its supremacy and as a demonstration of strength, China has built over the past years seven artificial islands on which aircraft, missiles or defense systems can be deployed.
China’s continuous assertiveness in the South China Sea determined the Philippines to take a major step and, at the end of January 2013, it filled a case against China under Article 287 and Annex VII of the 1982 United Nations Convention of the Law of the Sea (UNCLOS). The Philippines wanted the Tribunal to:
1. prove that China has no historic rights in the South China Sea and that China’s “nine-dash line” should become obsolete as it is not in accordance with UNCLOS provisions;
2. determine the type of some features (if they are islands, rocks, low-tide elevations or submerged banks) claimed by both the Philippines and China, in order to establish if they can generate entitlements to maritime zones greater than 12 nautical miles;
3. demonstrate that some of China’s actions in the South China Sea limited the Philippines sovereign rights, violated the terms of UNCLOS and harmed the maritime environment by building artificial islands;
4. prove that, during the arbitration, China restricted the access of some Philippine marines stationed in Second Thomas Shoal and continued to build artificial islands in Spratly Islands.
China’s reaction was very outright: it rejected the Philippines’ note verbale and declined to be part of the proceedings. At the end of 2014, China issued a position paper in which it underlined the fact that the Arbitral Tribunal does not have the jurisdiction to move forward with the Philippines’ claims, because the central point of its case is territorial sovereignty, which is out of the Convention’s scope. Also, China stated that both countries committed themselves to solve the dispute via bilateral negotiations and the simple fact that the Philippines filled a case proves that it breached this agreement. Last but not the least, China also made use of another point: in 2006, in accordance with Article 298 from UNCLOS, it excluded itself from any dispute settlement regarding maritime delimitation and military activities. China’s position at the end of the paper was very clear, highlighting the fact that it will continue to defend its rights in the South China Sea despite the Philippines’ demands.
After China’s response, the Philippines stated that the Arbitral Tribunal should be allowed to intervene in the case because it is not build around sovereignty, but on how the parties of UNCLOS are respecting their obligations. Indeed the Philippines’ interpretation was correct because, on 29 October 2015, the Arbitral Tribunal decided that it has the necessary jurisdiction over the case and the fact that China refuses to participate does not stop the Philippines from expressing its points.
Nine months later, on 12 July 2016, the Arbitral Tribunal provided the results of its findings, which were largely favorable to the Philippines. Based on the main points raised by the Philippines, the tribunal concluded that:
1. China didn’t exercise exclusive control over the South China Sea prior to UNCLOS, which makes its argument of “historic rights” in the waters not applicable;
2. the high tide features from the Spratly Islands are rocks and they don’t generate exclusive economic zones or a continental shelf. According to UNCLOS, Article 121 “Regime of islands”, an island is “a naturally formed area of land, surrounded by water, which is above water at high tide” and can generate an exclusive economic zone of 200 nautical miles. On the other hand, the features that are rocks and which cannot “sustain human habitation or economic life on their own” should not generate an exclusive economic zone, but only a territorial sea of 12 nautical miles. After investigating the issue, the tribunal determined that the natural condition of the features suffered modifications and they are dependent on outside resources, making them unable to support themselves.
3. China indeed interfered in the Philippines’ activities, starting from resource exploration and fishing, to the construction of installations and artificial islands by China. The tribunal also stated that, regarding the incident from 2012, the Chinese vessels, by aggressively approaching Filipino ships, put the life of the Filipino fishermen in danger.
4. China continued to build artificial islands in the Spratly, harmed the maritime environment and modified the natural condition of some features during the proceedings, mainly because China refused to consider itself part of the process.
As a predictable reaction, China rejected the tribunal’s decision and even criticized it, especially the part regarding the nine-dash line. President Xi Jinping declared that the ruling will not affect China’s rights and territorial sovereignty in the South China Sea and that his country will take the commitment to resolve any sort of issues through negotiation and taking into account the historical facts and the dispositions of the international law.
Regardless of China’s attitude, the tribunal’s ruling provided important leverage for the Philippines, giving it the opportunity to use it as a means to strengthen its position in the South China Sea. However, the “force” of the tribunal’s decision faded away once Rodrigo Duterte became the president of the Philippines, in 2016.
If the Philippines’ former president Benigno Aquino had a tougher stance towards China and its actions, his successor Rodrigo Duterte took a different approach and sought to build friendlier relations with China. Aquino’s administration was able to raise the South China Sea issue in an international court in 2013, obtaining a great success three years later and giving the hope that China’s monopoly over South China Sea could be ended. However, after taking power, his successor went in the opposite direction and didn’t seem to care that much about the tribunal’s award.
In October 2016, just three months after the international panel hosted by Permanent Court of Arbitration pronounced the decision in the case initiated by the Philippines, Rodrigo Duterte visited China following Xi Jinping’s invitation. During this visit, the two leaders signed 13 bilateral deals in areas such as infrastructure, investments, trade, tourism and drug prohibition. Furthermore, right after Duterte’s visit in China, Philippine ships gained access to the Scarborough Shoal after years in which Filipino fishermen’s activity was blocked by the Chinese Coast Guard.
However, despite the freshness and importance of the subject, the South China Sea was not the top point on the agenda. Duterte’s main objective during his visit in China was to build the basis of a close cooperation between the two countries, especially in terms of economic development. According to Rodrigo Duterte, the path to be followed in respect to the South China Sea should be based on dialog and negotiation, meaning practically the same strategy that failed to work years ago.
Rodrigo Duterte’s attitude towards China was not well embraced by the other Southeast Asian countries which are also involved in the South China Sea dispute. The Philippines’ willingness to pursue bilateral negotiations created difficulties for the other affected countries because it didn’t provide space for a joint solution, involving all of them in the matter. Antonio Carpio, Philippine Supreme Court Associate Justice, criticized Duterte’s softness in respect to China, emphasizing that economic benefits should not be put ahead of national sovereignty. In May 2017, when Duterte stated that Chinese president Xi Jinping warned him that any attempt to drill for oil or to enforce the Court’s ruling would mean war, Carpio became very vocal and mentioned that a complaint should be filled with the United Nations for such threats. Albert Del Rosario, former Foreign Affairs Secretary, emphasized that the Philippines should use at a maximum the decision of the Arbitral Tribunal, in an attempt to make sure that international law is applicable in any circumstances.
An action that demonstrated that Duterte wanted to make nice with China happened at the beginning of April 2017. Back then, the president was determined to raise a Philippine flag on Thitu Island, part of Spratly Archipelago. A week later, he canceled the visit, declaring that he didn’t want to ruin the friendship with China by planting a flag in a disputed area.
Another occasion for the Philippines to defend its cause was offered on a silver platter at the end of April 2017, when the ASEAN Summit took place. But holding the chairmanship of ASEAN in 2017 apparently didn’t determined Duterte to bring the tribunal’s resolution into the spotlight. When talking about the South China Sea, he only stated that mutual trust and confidence should be enhanced and disputes should be resolved in a peaceful way, without making use of force.
At the beginning of May 2017, Chinese warships stationed for a few days in Davao, the city Rodrigo Duterte ruled for over two decades: the Philippine’s president visited the warships and, in order to underline his commitment towards stronger relations with China, he declared that the Philippines is willing to conduct joint military together. In July 2017, just a year after the tribunal provided the ruling, China and the Philippines agreed to develop joint energy ventures for oil and gas explorations in the South China Sea, in order to avoid any unilateral actions in the sea which may lead to conflicts between the two countries.
In August 2017, the presence of Chinese vessels was reported near Sandy Cay, a sandbar located in the Tizard Bank of the Spratly Islands. One of the major concerns for China at that time, which was the main reason for the appearance of Chinese vessels in the area, was that the Philippines might occupy new features in the South China Sea. However, the Philippine’s objective in the zone was to build some shelters for the Philippine’s fishermen. Despite the fact that Sandy Cay is located 2.5 nautical miles from Thitu Island – a Philippines occupied island – Duterte’s reaction was very calm, declaring that he received China’s assurances that it will not occupy Sandy Cay. Four months later, Rodrigo Duterte decided to stop the construction of shelters in Sandy Cay, taking into account China’s complains from August. Also, in mid November 2017, Li Keqiang, the Chinese Premier, visited the Philippines and during a press conference he admitted the fact that the relations between the two countries became warmer and that they will continue to be improved.
In approaching the South China Sea problem, Rodrigo Duterte practically chose to exonerate China, deciding to pursue other interests instead, the most important being the economic one. The Philippines is aware of the fact that its big neighbor has the necessary resources to provide it assistance in various fields, from financial assistance to infrastructure projects. At the same time, knowing its economic power, China realizes that it can use this advantage as a mean to determine the Philippines to put at the very back end of the agenda the South China Sea issue. In October 2017, China took the commitment to finance the Philippines’ projects which are related to bridges and industrial park construction, irrigation systems or the build of drug rehabilitation facilities. Also, the Philippines received military aid from China in order to stop the Islamist rebels from Marawi City and in October, the Chinese government provided 3000 assault riffles to the Philippine National Police.
Another interesting point in this matter is the one related with the Belt and Road Initiative. The Philippines considers that, with this project, new profitable markets will be open for the Philippines’ products, and also that it can develop its infrastructure with China’s help. However, China’s initiative can also be seen as a way to attract Asian countries to its side and afterwards impose its will through its influence, as they may not be able to repay the loans.
Rodrigo Duterte’s blind faith in China and his decision to set aside the tribunal’s ruling also disadvantage the other Asian countries which are directly involved in the South China Sea issue. One of the main resolutions provided by the tribunal was the invalidity of the nine-dash line. If Rodrigo Duterte would have sought a tougher stance against China and would have put some pressure over respecting the decision, the other Southeast Asian countries would have had the opportunity to claim their rights in the South China Sea. Instead, they are again in the position to try, as much as possible, on their own, to avoid China’s monopoly in the sea.
The award provided by the tribunal in respect to the South China Sea and all the efforts which stood behind it became obsolete when Rodrigo Duterte decided that a warm path should be followed in the relation with China. He focused his attention on the economic benefits that he might extract from his country’s relationship with China and he forgot the main issue that haunts China-Philippines relations. Unfortunately for the Philippines, Duterte’s administration failed to use a big advantage which could have brought significant gains.
Photo credits (in order of appearance): The Philippines v. China process in Hague (Permanent Court of Arbitration), An atoll in the Spratly Islands in the South China Sea (Flickr/Storm Crypt), Rodrigo Duterte and Benigno Aquino (Wikimedia Commons/Ryan Lim), The American aircraft carrier USS Ronald Reagan in the South China Sea in 2016 (Flickr/Official U.S. Navy Page).
Alexandra Roșca is an Analyst at RISAP. A graduate of the Master in Diplomacy and International Economics of the Bucharest Academy of Business Studies, Alexandra’s research interests are international relations, diplomacy and geopolitics in Asia, and her main country of interest is Russia.
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