A Chinese maritime militia vessel deliberately collided with one of two Philippine ships conducting a maritime patrol of territorial waters near the Philippines-controlled island of Thitu, as alleged by the Philippines’ Bureau of Fisheries and Aquatic Resources (BFAR). According to Reuters, this is not the first time this has happened, as the two nations’ maritime forces seem to trade blows in this manner regularly within the West Philippine Sea.
A spokesperson for the Chinese foreign ministry, Mao Ning, denies these claims, saying the Philippine ship sailed dangerously in waters under China’s jurisdiction and collided with a Chinese fishing boat, according to the Stars and Stripes. Additionally, Beijing felt this move from the Philippines violated Chinese sovereignty and urged the Philippines to respect Chinese territorial sovereignty and maritime interests in the South China Sea.
The nations’ coast guards previously collided in June and August of this year, with this latest incident demonstrating a well-developed line of territorial disputes between the Philippines and China. Tensions have been escalating since as early as 1999, when the BRP Sierra Madre — a Philippine landing ship — was deliberately run aground by Manila after Chinese coast guard vessels shot water cannons at the vessel, according to Reuters. The Sierra Madre was beached on the Second Thomas Shoal in order to symbolize Manila’s territorial sovereignty over the shoal, which lies within the Philippines Exclusive Economic Zone (EEZ). The shoal was desired by Beijing for its capability as an outpost.
The most recent disputes have been happening in the area near China’s controversial nine-dash line, a line with which Beijing demarcates its massive yet vague claim over territory in the South China Sea, according to the Financial Times. The nine-dash line exists in direct rejection of a 2016 Permanent Court of Arbitration ruling initiated by the Philippines that negates China’s historical territorial claims in the South China Sea, according to the Associated Press.
Though an international court’s arbitration ruling may be enough to punish certain international crimes and bring justice to people who have suffered injustices, such strategies have historically been less than effective in preventing actions from national governments, especially ones with proof (however vague) of their claims. In 2013, the Philippines asked the Court to declare whether the nine-dash-line was legal under the UN Convention of the Law of the Sea (UNCLOS), and to declare whether China had interfered with the Philippines’ right to freely exploit resources in its EEZ, according to the US-China Economic and Security Review Commission (USCC).
The ruling found China’s claims had no legal basis under the UNCLOS, negating China’s territorial imperative over the South China Sea. Additionally, it found that China had in fact interfered with Philippine economic activity and resource exploitation within its EEZ by interfering with oil exploration activities, interfering with fishing vessels, failing to prevent Chinese fishing vessels from operating within Philippine territory, and conducting land reclamation within the Philippines’ EEZ, according to the USCC. Due to its ratification of the UNCLOS, China is bound to acceptance of all resolutions and rulings passed regarding its application as part of relevant case law. Despite this extensive and well-formulated ruling, the USCC at the time did not see a path towards enforcement of the ruling or punishment should China fail to abide by it, apart from other legal channels.
Legal remedy has shown to be ineffective in this case, as China continues to exercise what it considers lawful operations within its territorial waters, as evidenced by Beijing’s response to Manila’s accusation. China proceeds to push their territorial agenda within the West Philippine Sea as part of their desire to create military outposts across the South China Sea, according to Jonathan Malaya, an official at the Philippines’ National Security Council. Beijing considered their claims historically relevant, since China had at times controlled significant swaths of territory in the South China Sea. Despite this, the ruling should carry more weight than it seems to as a newly created negation of China’s capability to justify territorial expansion under the UNCLOS, according to the Council on Foreign Relations, mostly since China does not lean largely on the UNCLOS to justify its actions.
Despite the ineffectiveness of the ruling, little further legal remedy has been sought. The Philippines in 2021 recognized the Award as an official part of international law that cannot be diluted or diminished by governments, according to the Diplomat. Despite this acceptance of the ruling, scholars agree that this addition to UNCLOS case law does little more than act as a precedent for creating further legal development. China has passed domestic laws to enforce its existing positions in the South China Sea, changing its nine-dash line to a new Four Sha claim, which claims four island chains within the South China Sea. It seems despite this, no further legal action has been sought by the Philippines or the international community, leaving the Arbitral Tribunal’s ruling to stand for itself — a grave error.
As mentioned before, this ruling creates a precedent for the enforcement of territorial sovereignty by different countries, namely the Philippines, Taiwan, Vietnam, Malaysia, and Brunei. The best path forward for these nations to assert their territory in the face of constant Chinese expansion, as recognized by the Arbitral Tribunal, would be further legal arguments that build on the ruling. More legal rulings would enhance the capability of the UNCLOS, create a stronger legal basis for smaller nations to assert their territory, and allow them to stand up to domestic legal arguments that have been developing in Beijing for the past eight years.
Unfortunately, legal argument may be unable to create lasting change unless it is sufficiently enforceable. In the case of this ruling, and much of maritime law for that matter, arguments rarely include built-in enforcement mechanisms and instead rely on further arbitration in order to create enforcement of a law. In this lies the greatest strength of the legal system, though: all law builds upon itself. Manila is correct in asserting the acceptance of the Award in 2021 as part of international law, since it builds very well upon the UNCLOS’ existing frameworks to create good arguments to solve important issues.
As such, this lack of enforceability for both the UNCLOS and the Award is easily rectified by creating enforcement mechanisms in domestic law within the Philippines (or any nation), ones that can be universalised within international law. Another option would be to implement these mechanisms directly in the highest international courts, such as the Arbitral Tribunal, where a case can be brought by the relevant nations in order to create enforcement mechanisms for the Tribunal’s arguments. Since China has refused to follow rulings by lesser parties in the past, the most effective legal enforcement mechanism in this case would be either adjudication in the International Court of Justice or the International Criminal Court.
Over the years, cases in both courts have shown great promise in reaching definitive verdicts for territorial disputes. An additional ruling from either court that allows nations, particularly those affected by the South China Sea conflict (though the US may get involved on behalf of the Philippines due to their Mutual Defence Treaty), to take China to the highest courts for territorial infringement would create even further legal basis for nations to punish China for territorial infringement and prevent any further expansion. Furthermore, a stronger legal presence would deter China from continuing activities within the territories of the South China Sea nations, and would improve the capability for other nations to bring cases to the highest international courts regarding maritime law.
