Jay Batongbacal

The South China Sea is hotly disputed by several states. Brunei, China, Malaysia, the Philippines, Taiwan, and Vietnam all have conflicting claims to the sea, several sets of islands, and other maritime features. A classic “frozen conflict,” the South China Sea dispute has re-entered discourse (though for some it never left) as China spent the spring dredging sand and building up artificial islands. Recently, China said it would be finishing up its reclamation activities in the coming days. Incidentally, this month the Philippines’ pending arbitration case contesting the legality of China's “nine dashed lines” claim over the entire South China Sea, under the United Nations Convention on the Law of the Sea (UNCLOS), will move toward a decision.

Jay Batongbacal, an assistant professor and the University of the Philippines College of Law and director of its Institute for Maritime Affairs and Law of the Sea took some time to tell The Diplomat a little more about the arbitral process, how it fits into the Philippines’ strategy for maintaining its own claims, and what we can expect to happen after the court decides.

How does the legal course factor into the Philippines’ broader approach to the South China Sea (SCS) issue?

The legal course of action (i.e., the UNCLOS Annex VII arbitration proceedings) currently dominates in the Philippines' approach to the SCS issue. As a smaller country with the region's admittedly weakest military and very limited political and economic options, the Philippines is principally seeking refuge in the rule of law, which the government believes offers the best protection for its claims to its UNCLOS-based maritime rights and entitlements to the portion of the SCS that it calls the West Philippine Sea (WPS).

It is fair to describe the arbitration as currently dominant in its approach to the SCS disputes since it is intended to provide clarification of Philippine maritime rights and entitlements under UNCLOS vis-à-vis China's claims to the SCS represented by the nine dashed lines map officially published in 2009. The Philippines is of the view that the arbitration should first be decided upon to definitively resolve the issue of whether or not the nine dashed lines can be an acceptable basis for negotiations concerning the WPS, before it can go back to the negotiating table with China. Due to the pendency of the arbitration, the Philippines has refrained from taking actions that might be deemed as even slightly provocative or prejudicial to its legal position, such as repairing and renovating its facilities on occupied islands and islets, substantially increasing the frequency of its maritime patrols and changing the nature of its presence and activities, and even effectively suspending offshore petroleum activities close to the disputed areas.     

Despite the arbitration proceedings, however, China has continued to exert (and indeed since 2012 had palpably increased) pressure against the Philippines through its activities, such as the reclamation of its occupied reefs, interference with Philippine fishing activities, and intervention with Philippine activities in and around its positions in the WPS. Thus to complement the legal track, the Philippines is at the same time attempting to leverage its long-standing alliance relationship with the U.S. to fill in serious capability gaps to try to address China's moves and activities at sea. For example, the Philippines has sought U.S. assistance in enhancing maritime domain awareness and capacity-building for maritime surveillance and sea control over the WPS; as well as also exploring the possibility of strategic partnerships with Vietnam and Japan that include maritime defense and law enforcement cooperation. The Philippines is trying its best to rally international support for its legal cause, by engaging in a communications campaign to inform the international community of the situation at sea (e.g., reclamation activities, interference with fishing, etc.) in the hope that this will deter or discourage more provocative and coercive activities by China. At the same time, the communications campaign tries to shed light on the true nature and status of China's claims and activities in pursuit thereof, specifically the illegality of the claim represented by the nine dashed lines. The Philippines also continues to engage ASEAN in the drafting of a regional code of conduct for the SCS disputes while the arbitration case is pending. This diplomatic effort is intended to coordinate the region's approach to the SCS disputes, especially in terms of dispute-management and crisis-prevention, as well as future resolution.

What are the various ways in which the court could decide the case, and what in your view is the most likely verdict?

At this point, it appears that the court is poised to decide the case in two stages: first on the issue of jurisdiction and admissibility of the Philippine claims, followed by decision on the merits thereof.

The arbitral tribunal has announced that it will consider China's public position paper, released last December, as a plea objecting to the tribunal's jurisdiction, and in accordance with section 20 of UNCLOS Annex VII will hold oral arguments beginning July 7 on the matter of jurisdiction and admissibility of the Philippines' claims. Afterwards, the tribunal will make a ruling on these matters as a preliminary question, unless it finds that the objections need not be decided upon yet and may be dealt with subsequently together with the merits of the case. Essentially the tribunal will have to rule on whether or not it has jurisdiction over the Philippines' claims, and/or whether or not such claims are admissible or properly submitted to the tribunal to decide upon if it finds that it does have jurisdiction.

The Philippines has made a number of separate claims, and the tribunal may decide on each and every one separately, unless it finds that at least one claim is of such a character that it must inevitably also determine the fate of the rest of the claims. The tribunal's decision at this stage can therefore be one of three variations: (1) it has jurisdiction and all the claims are admissible, (2) it does not have jurisdiction and the claims are not admissible, or (3) it has jurisdiction over some claims but not others, and/or some claims are admissible but not others.

If the tribunal finds that it does not have jurisdiction or that none of the claims are admissible, then the case will end at this stage. However, if it finds that it does have jurisdiction and at least some of the claims are admissible, or that the jurisdictional objections cannot be decided upon without delving into the merits, then the case will continue for further proceedings on the substance of the Philippine claims. There are actually several claims in the Philippines' case, but these can be roughly categorized into (1) those relating to the validity of China's claims to the SCS, represented by the nine dashed lines, (2) those relating to the nature and legal entitlements/effects of the features occupied by China, and (3) those relating to the interference by China with Philippine resource-use activities in the WPS (e.g., fishing near/around disputed islands, offshore petroleum exploration within the area of the Philippine continental shelf encompassed by the nine dashed lines, China's fisheries regulations and enforcement against Philippine vessels fishing within the Philippine exclusive economic zone (EEZ)).

If, at this later stage, all or at least some of these claims have not been dismissed preliminarily by the tribunal on grounds of jurisdiction or admissibility, then the final award or decision on the merits may also be one of three possible variations: (1) it may decide to grant all of the claims, or all those that remain, (2) it may decide to not grant any of the claims, or (3) it may grant some of the claims but not others.

Although it is difficult at this point to accurately forecast the outcome, assuming that the obstacles to jurisdiction and admissibility are hurdled, then it is realistic to expect that the tribunal may at least grant some of the Philippines' claims. Of the many different claims, the challenge against the validity of China's nine dashed lines in the light of UNCLOS, and the issue of entitlement of certain features to only 12 nautical miles of territorial seas and no EEZ/continental shelf, stand the best chance of being ruled in favor of the Philippines.

Assuming that the court decides the case at least partly in favor of the Philippines, how might China and other actors in the Asia-Pacific react?

A ruling in favor of the Philippines on the issue of illegality of the nine dashed lines, and of the islands/rocks being entitled at most to only 12nm territorial seas and no EEZ/continental shelf, would be of benefit to other claimant countries, since they are also faced with the prospect of either losing their respective exclusive economic zone and continental shelf areas to China, or at least being unable to undertake development of the natural resources in those zones without China's consent and participation. Although such countries are not bound by the decision since they are not parties, such favorable rulings would strengthen their respective negotiating positions with China on the issue of distribution of rights and jurisdictions. External actors like the U.S. and Japan would also benefit in the sense that their respective positions on freedom of navigation and overflight through most of the SCS would be vindicated.

China is expected to initially ignore a favorable ruling and refuse to recognize it on the basis of its refusal to recognize the tribunal's jurisdiction; it is likely to continue to assert that it has sovereignty and sovereign rights to the area within the nine dashed lines. It will however be faced with substantial diplomatic pressure since other states are expected to support the tribunal's ruling as a fair and proper decisions. It is hoped that China would at least soften its assertiveness and behave more carefully and responsibly in its dealings with the other littoral states, and eventually change its policies and behavior in dealing with the SCS disputes.

The Philippines is getting ready to move into election mode, and the fallout from the court’s eventual verdict will largely be dealt with by President Benigno Aquino III’s successor. How would you expect the next leader to deal with the South China Sea issue following the verdict? What might we see in terms of continuity and change in Manila’s position?

To date, the front-running potential candidates for president have indicated that they will at least attempt to improve relations with China in the aftermath of the tribunal's decision. I would expect that the next president will carefully weigh her/his options, and assess whether continuing the path laid by the current administration will greatly affect whatever economic or foreign policy plans she/he might have. If the case is still pending by that time, it is not likely that the change in administration will result in a drastic change in the Philippine position on the arbitration proceedings; the case will probably be pursued to its conclusion so as to give the matter a full closure. If the case is no longer pending, then the next administration will have a little more flexibility in re-setting Philippines-China relations earlier rather than later. The Philippines will probably attempt to improve its relations with China after the arbitration is finished, whether decided in its favor or not, considering the fact that China is still a very important neighbor and regional power. How it carries out this improvement will be one of the next administration's most immediate and biggest foreign policy challenges.

In the meantime, the Philippines' current moves to enhance its alliances with external actors such the U.S. and Japan, and its engagement with ASEAN on the matter (currently focused on the code of conduct) will most probably continue. It is fully aware that the arbitration does not resolve pending issues about sovereignty over the islands, and is limited to the maritime aspects only. These are necessary and pragmatic since China's recent activities in the SCS, particularly its establishment of artificial islands, and its current pattern of assertiveness, will still pose great challenges to Philippine policies and activities in the WPS in the near future. The Philippines will still strive toward a peaceful and fair resolution of its disputes with China, but will no longer neglect the needs for reasonable deterrence and continue to work toward a bilaterally and multilaterally acceptable solution.