South China Sea Ruling, Is it Enforceable?

Public International Law

 This paper will discuss the landmark ruling of the Permanent Court of Arbitration (PCA)

which ruled in favor of the Philippines over its maritime entitlements in the South China Sea, or

what should now be known as, the West Philippine Sea and an analysis of known ways to

efficiently enforce this ruling through the utilization of international law. Additionally, the

current state of events will also be discussed and if the remedies presented are still available to

the Philippines.

The islands in the PCA ruling and most notably the Scarborough Shoal are the contended

areas in the South China Sea ruling. China through its Hainan Provincial Regulation indirectly

claimed ownership of the said areas and restricted freedom of entry. The regulation provided

that:

Article 2: The Regulation is applicable to the border security control in the sea areas and coastal areas within the jurisdiction of

the Hainan Province. If any matter is otherwise regulated by other laws or administrative regulations, such laws or administrative

regulations shall apply to the matter.

Article 31: When entering the sea areas within the jurisdiction of the Hainan Province, all foreign ships and the people on the

foreign ships shall obey the laws and regulations of the People’s Republic of China, and shall not have the following actions that

breach the control of coastal border security:

(1) Illegally stop or anchor when passing the sea areas under the jurisdiction of the Hainan Province, or take

provocative acts;

(2) Enter or exit the border without inspection and approval, or change the entry or exit ports without approval;

(3) Illegally board any of the islands and reefs within the jurisdiction of the Hainan Province;

(4) Damage marine defense facilities or production and living facilities on the islands and reefs within the jurisdiction

of the Hainan Province;

(5) Engage in propaganda activities that violate national sovereignty or endanger national security; or
 (6) Conduct any other actions that breach the control of coastal border security as specified by other laws or

regulations1.

This new legislation empowers the authorities of the public security border to legally take

such measures as boarding the ship, conducting inspection, detention, or deport the ships. The

articles of the regulation contravene with the exclusive rights of the Philippines to enforce its

laws and regulations in its own EEZ. This regulation coupled with interference with fishing

activities of Filipino fishermen lead to tension and created a chilling effect on the fishermen and

affected their livelihood.

The April–June 2012 deadlock at Scarborough Shoal between Chinese maritime security

forces and the Philippine Navy motivated the Philippines to initiate legal arbitration proceedings

against China in Hague, Netherlands.

China’s claim is founded upon its alleged historical rights evidenced by maps and treaties

from of when Japan has acceded some of its territory which included the contested areas to

China.2 It claims that While the Philippines’ claim comes from the UNCLOS, a treaty ratified by

both parties.

The ruling is deemed to be a landmark case because it has set a historic precedent in

international law through its pronouncement establishing that historical rights such as the so-

1
People’s Republic of China, Hainan Province, Hainan Provincial
Regulation on the Control of Coastal Border Security (31 Dec. 2012), Art.
31. MP, Vol. V, Annex 123.
2
Treaty of Peace between the Republic of China and Japan
Signed at Taipei, 28 April 1952, Art. 2
called “nine-dash-line” of China are not considered under the Constitution of the Oceans, or the

United Nations Convention on the Law of the Sea (UNCLOS)3. “The Tribunal has also found

that Mischief Reef and Second Thomas Shoal are low-tide elevations and, as such, generate no

entitlement to maritime zones of their own. Additionally, Reed Bank is an entirely submerged

reef formation that cannot give rise to maritime entitlements. Nor is there any high tide feature

claimed by China within 12 nautical miles of Area 3, Area 4, or the SC58 block that could

generate an entitlement to a territorial sea in those areas”4. The Permanent Court of Arbitration

(PCA) determined that China cannot claim the entire span of the South China Sea as being part

of its maritime territory based solely on the “nine-dash-line” historical right they presented nor

with the EEZ requirement.

In contrast with domestic judgment, decisions made by international tribunals are more

challenging to enforce because it does not provide an enforcement apparatus. The challenge

comes in multi-folds. One challenge is the necessity to maintain good relations with China.

China and Southeast Asia’s power asymmetry and economic interdependence continues to grow

so this does translate in certain risks in the favorable ruling of the Permanent Court of Arbitration

(PCA). By not favoring China, tension between the Philippines and China may heighten

resulting in some less that desirable effects on trade. It’s also worth taking note of the expansion

of China’s military capability and economic interests as it takes more action to secure access to

the region’s sea-lanes, territories and economic zones.

4
https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.693
 Another challenge, and perhaps, one of the more dangerous challenges is not exactly

island-building, territorial claims or freedom of navigation, but instead intense competition over

the swiftly declining fishery resources. Many local fishermen have fallen prey to the armed

disputes over fishing grounds and this has been a common occurrence in the area for quite some

time however these disputes have increasingly been aggravated due to larger-scale commercial

fishing. The exacerbated disputes threaten to turn these fishing disputes into more complicated

regional conflicts as the involvement of coast guards and other national maritime security

agencies increases5.

This is why it is important for the Philippines to enforce the PCA ruling now more than

ever. For despite the challenges that come along with the rapidly increasing power and breadth

of China’s influence and power, facing their wrath in any way is much less menacing than

allowing these fishing disputes to escalate. We risk not only the security of our fishery resources,

but also the safety of our country.

Possible methods of enforcement and their corresponding risks are detailed below:

1.) The Philippines, which is the prevailing state party, has the option to resort to the United

Nations who could direct the Security Council to enforce the decision however China is a

permanent member of the Security Council and as such, China has veto power. In this case, the

enforcement of the PCA ruling by the UN through the Security Council will not result to much.

5
https://news.nationalgeographic.com/2016/08/wildlife-south-china-sea-overfishing-threatens-collapse/
2.) It is also possible to politicize and publicize the ruling in order to scare off Chinese fishermen

and their large-scale commercial fishing however politicizing these routine operations in

international waters would paradoxically legitimize China’s sovereignty claims as it implies that

their claims have merit to some extent.

3.) Deterrence policies are another possibility however it would escalate tension and might be

viewed as a show of force and pressuring China through any means to halt its island building or

resource exploitation is brute and would possibly turn to zilch as it requires large forces to

conduct actions like blockading Chinese forces or destroying Chinese construction which the

Philippines does not have the manpower or the weaponry for. Not to mention that these offensive

actions are most likely to trigger war which, much like offensive actions, defenses require

resources which the Philippines cannot provide at the moment.

4.) The ASEAN–China South China Sea Code of Conduct (CoC) is among the most promising

way to enforce, if not at least cultivate restraint by the claimant states. However, a negotiated

cessation of activities under the CoC would then have to include and discuss a lengthier list of

activities, such as blockading, resource exploitation, island construction, among others.

The Philippines, with the full backing of the UNCLOS and the PCA ruling, will have to

fully exercise its sovereign rights over its Exclusive Economic Zone (EEZ) which is a 200-

nautical-mile seaward distance from the territorial sea baseline, in the West Philippine Sea and as

well as the Philippine’s sovereign rights over its Extended Continental Shelf (ECS) which is the

seabed and subsoil of submarine areas beyond the territorial sea throughout the natural

prolongation of the land territory to the outer edge of the continental margin. The territorial sea
includes the portion of the coastal sea within a 12-nautical-mile seaward distance from the low

water mark. The ECS is a 150-nautical-mile seaward distance from the margin of the EEZ. A

littoral state such as the Philippines has the right of sovereignty over the territorial sea, the water

column, seabed, and subsoil of the EEZ, and the seabed and subsoil of the ECS.

The Philippine EEZ in the West Philippine Sea includes extensive potential fields of oil

and natural gas to which the exploration and exploitation of such resources is valuable and well

within the sovereign rights of the Philippines.

The 1987 Constitution of the Philippines constrains the exploitation of natural resources

to Filipino citizens, but does not prohibit state-sponsored exploration because nationality is an

attribute of people not of the state which is why a more holistic and efficient enforcement of the

PCA ruling would be China and the Philippines doing a joint exploration within the Philippine

EEZ given that China will acknowledge Philippine sovereign rights over its EEZ.

As additional measure, the Philippines could likewise extend friendly and productive

joint exploration with the United States and Japan given that the U.S. may provide their

advanced deep-sea technology for the exploration which their military will protect fiercely and

Japan has the financial capabilities to fund explorations in exchange for natural gas. This

measure will ensure that China will not go to any form of war, whether military or trade, with the

Philippines as it would surely be seen as a war of aggression and would put China against the

world as acts of aggression are heavily frowned upon by the U.N.

In our current state of events, the remedies to enforce the PCA ruling are slowly losing

their effect. Resorting to the Security Council would be out of the question because of the veto
power of China. The Philippines can however turn to other ‘Superpowers” those of which have a

legitimate interest in the area like the United States. The United States has an interest over its

freedom to navigate the area and the perceived military threat of China that has created a

strategic base in the Pacific.

Politicizing and publishing the PCA ruling may be beneficial but not for its direct effect

on the Chinese fishermen. The issue of the dispute has long since died down and the Philippine

government has been seen, albeit at face value, tolerating the advances of China in claiming the

contested areas through its inaction and concurrence of defeat that the areas now belong to

China6 The fact that China has continued building its military base can attest to this. Publishing

is beneficial for the future generations and the few who are interested in finding ways to resolve

the dispute.

Deterrence policies will have no effect anymore since China has already established a

base and defenses around the contested areas.

Enforcing the ruling on the contested areas is too late with respect to reclaiming the

surrounding areas and islands but parts of the ruling may be enforced through international

pressure, such as traditional fishing rights of the fishermen or preventing China from exploiting

and/or destroying our national resources as well as sovereign rights over the area.

Justice Carpio mentioned ways to enforce the Philippines’ exclusive right to the resources

found in the contested areas:

6
https://news.abs-cbn.com/news/06/12/18/china-says-its-allowing-pinoy-fishermen-in-panatag-out-of-goodwill
 “If a Chinese oil company brings a gas platform to Reed Bank, within the Philippine

EEZ, to extract gas, the Philippines can sue the company in a state where the company has

assets, like Canada, which is a member of Unclos. The Philippines can show the Canadian court

the ruling that the gas in the Reed Bank belongs to the Philippines. The Philippines can ask the

Canadian court to seize the assets of the Chinese firm in Canada to compensate the Philippines

for the loss of the gas.

The Philippines can also seek reparations from China for damages. The ruling held that

China’s dredging inflicted irreparable injury to the fragile marine ecosystem in the Spratlys,

including Mischief Reef and Subi Reef, which form part of the Philippine continental shelf.

Under the Law of the Sea, a state is liable for damages for causing harm to the marine

environment of a coastal state.

The Philippines can also ask the International Seabed Authority, a creation of Unclos, to

suspend the four permits it issued to China to explore the seabed in the high seas beyond national

jurisdiction. States that ratified Unclos agreed to accept it as a “package deal”—accepting its

provisions entirely and not selectively. If China rejects the ruling, the Philippines can assert that

China is accepting the benefits of Unclos under its seabed provisions but rejecting its provisions

under its dispute settlement mechanism.”7

7
https://www.wsj.com/articles/how-the-philippines-can-enforce-the-south-china-sea-verdict-1468774415.
Antonio T. Carpio July 17 2016
 These methods may not allow the Philippines’ to act freely or to exploit the natural

resources found in the area but it would preserve resources up until favorable negotiations with

China have concluded.

In conclusion, we cannot enforce the ruling as a whole just yet. We have been awarded

the ruling but we don’t have a clear way to enforce it. The most that the Philippines can do is

protect its interests and resources in the area through international pressure and seek a better way

of diplomacy so that China and Philippines may arrive at a common ground.