Delegitimizing China’s maritime expansion in the South China Sea: The role of 2016 arbitral tribunal ruling

The idea that Chinese expansion in the South China Sea is the quintessential threat to Philippine national security began in early 1995 when the Philippine Navy (PN) discovered the presence of Chinese wooden structures on Mischief Reef—called the Panganiban Reef, which is 150 nautical miles from the country’s westernmost island of Palawan, and 620 miles southeast of the southernmost Chinese province of Hainan.

Eventually, since the beginning of the 21st century, the relationship between the Philippines and China has undergone ups and downs. This is because China's expansion in the South China Sea has become the primary security problem confronting the Philippines since the second decade of the 21st century.  

China must possess the means to control the South China Sea and assert its sovereignty claims. It must maintain a persistent naval presence in the disputed waters to gain control. Chinese maritime strategy requires the People’s Liberation Army’s Navy (PLAN), the Chinese Coast Guard (CCG), and the naval militia to pressure foreign vessels in the disputed waters and force littoral countries through skillful maneuvers to abide by its jurisdiction and privileges in the South China Sea.

This enables China to identify alleged interlopers, undertake drastic and mass intimidation actions, and exercise escalatory options against those challenging its expansive maritime claims. It then applies overt and covert coercive measures to overwhelm any Southeast Asian state’s resistance, allowing it to pull its massive weight around resolving its disputes with the smaller littoral states.   

In the long run, China might have de facto control of the South China Sea—or an actual state of affairs based on raw power but not international law. To complete its integrated maritime expansion, China seeks to attain de jure control or the official and legitimate recognition of its sovereign control of the South China Sea based on international law, without actual use of force.  

Total domination of the South China Sea required China to attain de facto and de jure control over this disputed waterway.  This, in turn, would provide China with maritime trade security based on its control of Southeast Asia’s sea lanes of trade and communication, in-depth defense of its homeland, and total control ownership of undersea natural gas and hydrocarbon deposits in the South China Sea. 

Denying China any legitimacy in its maritime expansion 

On July 12, 2016, the United Nations Conventional of the Law of the Sea (UNCLOS) Arbitral Tribunal Ruling on the South China Sea denied China any possibility of achieving de jure control of the body of water.  The Tribunal decided that China’s expansive claim in the South China Sea, based on its nine-dash line, is entirely untenable since it has no basis in international law.

The Tribunal argued that States Parties, like China, which adopted UNCLOS in 1982, should expressly renounce any previously claimed historical rights in areas beyond the 12-nautical mile territorial sea.  UNCLOS provides for the exclusive economic zone (EZZ) and continental shelf 200 miles beyond the 12-mile territorial sea, which were adopted to void and replace previously existing historic or economic claims to areas considered high seas. 

The Tribunal also ruled that even under customary international law, China could not make a credible claim of historic right because any claim of historic right must be based on a continuous administration of the area, under a claim of title, over a long time to which other States accepted. The Tribunal observed that China had never exercised continuous administration over the South China Sea or enjoyed the acquiescence of any State to its expansive claim over this body of water.
 
In early 2013, lacking a credible military capability and economic prowess to stand up against China’s maritime expansion in the South China Sea, the Aquino Administration opted for a legal claim against China in the Permanent Court of Arbitration (PCA).

The Philippines relied on a legal approach to resolve its maritime dispute with this emergent and assertive power. By availing itself of the UNCLOS’s arbitration mechanism, the Philippines effectively used international law as a substitute for a traditional military means to achieve an operational objective— to deprive China of any opportunity to gain any de jure control of the South China Sea.   

The basis for the Philippines’ archipelagic defense doctrine

Even before his presidential inauguration on June 30, 2022, President Ferdinand Marcos acknowledged the award as he said in an interview that he would assert the Philippines’ territorial rights over the West Philippine Sea.  

Marcos said he would talk with China consistently with a firm voice about the two countries’ territorial dispute. He also declared that he would use the July 2016 arbitral award against China’s expansive and sweeping claims in the South China Sea to assert his country’s territorial rights.

On July 12, 2022, Philippine Foreign Affairs Secretary Enrique Manalo announced that the Philippines would uphold the July 12, 2016, arbitral ruling as it is one of the twin anchors of the country’s policy and actions on the West Philippine Sea. He added that the award affirmed to the community of nations that the rule of law prevails, that the rule of law prevails. That stability, peace, and progress can only be attained when founded on a rules-based legal order on the oceans, as it should be everywhere else.  

In the Department of Foreign Affairs (DFA’s) July 12, 2022 statement commemorating the sixth anniversary of the arbitral award and the 40th anniversary of the United Nations Convention on the Law of the Sea (UNCLOS), Secretary Manalo declared that compliance with UNCLOS in its entirety is critical to ensuring global and regional peace and the fair and sustainable use of the oceans.

A few days later, President Marcos’ newly appointed Solicitor-General, Menardo Guevarra, announced that the Philippine government stands firmly behind DFA’s statement on the 2016 arbitral award that favors the Philippine position in the South China Sea dispute.

President Marcos’s early acknowledgment of the ruling conveyed three powerful messages, namely: a) The Philippines declares that the verdict is final, and it rejects attempts to undermine the July 12, 2016 ruling by erasing it from law, history, and the country’s collective ruling; 2) the Philippines welcomes the support of a growing list of countries for the award; and 3) that its current foreign and defense policies and more recently its new archipelagic defense concept (CADC) are all geared at implementing the July 12, 2016, arbitral ruling in the face of continuing Chinese maritime expansion in the West Philippine/South China Sea. 

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Dr. Renato De Castro is a Trustee, Convenor, and Non-Resident Fellow of think tank Stratbase ADR Institute. He is also a Distinguished Full Professor at the Department of International Studies at De La Salle University-Manila.