The Philippines submitted its maritime dispute memorial on 03/30/14 to the International Tribunal on the Law of the Sea (ITLOS), requesting a decision on whether the People’s Republic of China’s (PRC) nine-dash line negates the Philippines’ Exclusive Economic Zone (EEZ), under the United Nations Convention on the Law of the Seas (UNCLOS), which the PRC has signed...
Current State of Affairs
The Philippines submitted its maritime dispute memorial on 03/30/14 to the International Tribunal on the Law of the Sea (ITLOS), requesting a decision on whether the People’s Republic of China’s (PRC) nine-dash line1 negates the Philippines’ Exclusive Economic Zone (EEZ),2 under the United Nations Convention on the Law of the Seas (UNCLOS), which the PRC has signed. Under consideration too are: the status of certain submerged features, such as Scarborough Shoal, as constituting a 200-nautical-mile EEZ or only a 12-nautical-mile territorial sea; and the PRC’s ability to appropriate low-tide elevations, such as Mischief Reef, within the Philippines’ EEZ.
The Philippines is seeking to treat the islands as a maritime dispute, which binds signatories of the UNCLOS to compulsory arbitration, and not as a territorial dispute, which is governed by general rules and principles of international law. The Philippines and PRC have no treaty agreeing to compulsory arbitration of territorial disputes. The PRC is not submitting to arbitration on this matter citing the UNCLOS’ lack of jurisdiction due to the overlapping EEZs claimed by the PRC and the Philippines and the historical right of China’s nine-dash line that predates the UNCLOS.3 The PRC released on 12/07/14 a position paper that reasserted this and that denied that the nine-dash line claim is inconsistent with UNCLOS principles. Vietnam issued a confidential submission of its position on this arbitration case to the tribunal on 12/05/14. The Hague tribunal decided on 10/29/15 that it has jurisdiction to hear the Philippines’ case.
“While Vietnam has brought its maritime jurisdictional claims into conformity with UNCLOS, it has not relinquished its claims to sovereignty over all the islands and features in the Spratly Island group. Vietnam’s statement apprises the tribunal of its own claims to the islands and other features within the area of the dispute, and places a greater onus on the Philippines to demonstrate that its claims can be granted without regard to the competing claims to sovereignty made by other states. The problem arises on account of the proximity of Vietnam’s occupied islands and rocks in the Spratly area, particularly around the Chinese positions on which the Philippines has asked the tribunal to rule.”4 On 12/16/14 the tribunal sent 26 questions for clarification to the Philippines regarding the merits of the case and issues of jurisdiction. On 03/16/15 the Philippine Department of Foreign Affairs submitted supplemental documentation to the Permanent Court of Arbitration.
"The U.S. sees the Spratlys Islands dispute as a matter of territorial expansion not territorial defense."
The Enhanced Defense Cooperation Agreement (EDCA) signed between the United States of America (U.S.) and the Philippines on 04/28/14 provides the U.S. with better access to military bases, ports, and airfields in the Philippines, through which U.S. troops, ships, and warplanes will rotate and hold joint training with Philippine troops. This is part of the U.S.’s long-term rebalancing toward the Asia-Pacific region. On the alliance with the Philippines, President Obama declared in a speech in Manila on 04/28/14: "our commitment to defend the Philippines is ironclad and the United States will keep that commitment because allies never stand alone."5 However, the EDCA does not cover the Spratly Islands, and Obama stated that the U.S. does not “even take a specific position on the disputes between nations.”6 When two journalists specifically questioned Obama on whether the U.S. would defend the Philippines if the territorial dispute with China breaks into armed conflict, if the mutual defense treaty would apply in such a case, Obama stated twice in response: "our goal is not to counter China. Our goal is not to contain China. Our goal is to make sure international rules and norms are respected and that includes in the area of international disputes."7
The U.S. sees the Spratlys Islands dispute as a matter of territorial expansion not territorial defense. The position of the U.S. on whether the Mutual Defense Treaty (MDT) between the U.S. and the Philippines would be activated for the defense of the Philippines should an attack occur in the disputed areas (which the Philippines only began to claim in the 1970s, long after the MDT was signed) has been consistently negative since Secretary of State Henry Kissinger’s 1975 interpretation.8 The U.S. State Department’s ‘Limits in the Seas No. 143’ publication recently released regarding China’s maritime claims reaffirmed U.S. neutrality. Yet, Kissinger also noted, “We do not believe this aspect of Treaty gives either Party carte blanche to deploy forces anywhere in the Pacific with the assurance that the other Party will be bound by the MDT in the event of attack on those forces. Commitment in the event of attack on forces must be construed in context of overall purpose and provisions of MDT. Preamble sets forth collective defense purpose and provisions of MDT and reaffirms parties’ commitments to principles and purposes of UN Charter, while in Article I Parties undertake to refrain from ‘threat or use of force in any manner inconsistent with UN Charter.’”9 Nevertheless, there is also U.S. recognition that when the legitimate rights and presence of Philippine ships and aircrafts are threatened, the MDT could be engaged.
China’s artificial island-building threatened the U.S.’s ‘pivot’ to Asia, however, and elevated the West Philippine Sea into a potential strategic conflict. At the end of May, 2015 the U.S. navy missile cruiser Shiloh paid a “routine port call” at Subic Bay and the U.S. Defense Secretary Ashton Carter reaffirmed to defense ministers gathered in Singapore at the 14th Asia Security Summit that U.S. military aircraft and ships would continue to pass through/over any international waters, despite the PRC’s warnings against a U.S. surveillance plane that flew over the Fiery Cross Reef on 05/20/15. At the security conference, Carter additionally condemned China’s reclamation activity as “out of step”: Vietnam has developed 48 outposts, the Philippines 8, and Malaysia 5, as opposed to China’s over 2,000 acres of reclaimed land accomplished only in the last 18 months.10 Carter additionally reaffirmed the U.S. desire for “a peaceful resolution of all disputes” and its opposition to “any further militarization of disputed features.” On 05/22/15, the U.S. accused China of deploying two artillery pieces on one of its artificial islets; though the weapons posed no security threat, they have since been removed.11
In 10/26/15 the U.S. sent a guided missile destroyer to the disputed territory, in the waters of Subi Reef near an artificial island; and China called the naval patrol a “deliberate provocation.”12 The U.S. used this defense of the right to freedom-of-navigation to show its strength to China, to communicate that Chinese ambitions will not go unchecked; however, as Mr. White, professor of strategic studies at Australian National University commented, the maneuver “showed just how reluctant Washington is to stand up to China for fear of provoking a crisis.”13 The New York Times recounted the action as timid—“the destroyer traveled within 12 nautical miles of the new island, and then left quietly and quickly, and American officials were barred from describing it in any detail. It left the opposite impression of being strong in the face of a determined power and allowed the Chinese to move ahead undeterred.”14
China has engaged in both reef reclamation and low-level militarization of islands in the disputed territory. In May 2014 China without warning deployed its first indigenous deep-water drilling rig (the HYSY981) around the Paracels, causing clashes between Vietnamese and Chinese vessels (in which a Vietnamese vessel sunk) and major anti-Chinese protests in Vietnam.15 The Philippines called for a moratorium on all activities that created tensions as part of a ‘Triple Action Plan’ to manage the disputes. The Triple Action Plan called for: full implementation of the 2002 DOC, conclusion of a regional Code of Conduct, and the establishment of a binding dispute settlement mechanism. China rejected this proposal, but withdrew the rig in July 2014 in response to the strength of the Vietnamese reaction. The PRC began building an artificial islet in Mischief Reef (Panganiban Reef) in January 2015, which as of the end of April 2015 measured approximately 3.2 hectares and would reach 500 hectares when completed, based on projections from satellite photos.16 Chinese troops stationed on Mischief Reef currently shoo away Filipino fishers from the reef. A heavily armed coast guard fleet patrols the area for China.
Yet, China does not want a war and is seeking to avoid conflict. The rapid, recent reclamation on the seven features was a response to the Philippine submission to the ITLOS. The Philippine case argues that China’s occupation of the seven features is illegal, must belong to the high seas, and cannot be occupied by any country due to their submergence underwater; the artificial island-building seeks to outflank and preempt the case verdict. China did not anticipate the U.S.’s strong reaction; however, and the idea of a repetition of the kind of defeat that marked the ‘century of humiliation’ that China seeks to overcome is unthinkable to the Chinese. For this reason, they are seeking to avoid conflict. China expert Chito Sta. Romana believes that caught in this bind, the Chinese “will continue with their reclamation but because the Americans have made a big fuss about militarization, [the reclamation] may [be moderated]. Because if the Chinese were to introduce anti-ship missiles or anti-air missiles, this would be a bigger story.”17 The understanding is that this is the hard line on militarization that the U.S. is drawing and that China is tacitly accepting, at least for the near future.
China offered to share with Filipino fishermen the use of its built facilities on the islets, and on 06/05/15 Zhao Jianhua, China’s ambassador to Manila, told a small group of journalists that China is offering for the Philippines to return to bilateral negotiations without preconditions. On 06/07/15 the Philippines refused these offers, citing their impossibility if the other claimants remain excluded, and reaffirming the Philippines’ staunch position in favor of a more binding Code of Conduct among China and ASEAN as well as the Philippines’ adherence to the principle of ASEAN centrality. Meanwhile, on 06/03/15 President Benigno S. Aquino for a second time compared the PRC’s stance in the West Philippine Sea to that of Nazi Germany’s annexation of the Sudetenland in Czechoslovakia before the outbreak of World War II. Aquino made these inflammatory remarks while in Japan, the country that was Nazi Germany’s ally during World War II.
The West Philippine Sea is vital to China’s core interests. China currently has no permanent, defensible security resources in the Spratly area, though the lifeblood of its economy flows through it. To this end, the PRC’s strategic objective is to mitigate key vulnerabilities in pursuit of stability and growth. The Director of Asia Security Programs at the American Foreign Policy Council explains, “Beijing is keenly sensitive regarding the vulnerability of the energy imports that sustain China’s economy, the bulk of which must traverse thousands of miles of open sea patrolled by the U.S. Navy and through the narrow naval chokepoint at the Strait of Malacca. The naked vulnerability of these imports (particularly in war time) is intolerable to Chinese strategists. The goals of Chinese grand strategy can therefore be assumed to be attaining diverse and defensible sources of energy and rapid economic growth bolstered by a healthy support of export markets in an increasingly connected Asia.”18
China’s Asian Infrastructure Investment Bank (AIIB), ‘String of Pearls’ investments in port facilities along the Indian Ocean (including a Chinese state-owned enterprise’s assumption of control of Pakistan’s Gwadar Port in February, 2015), the web of new oil and gas pipelines from Myanmar to Kazakhstan, and the new industrial and commercial rail links from Western China to Europe all work together to help China achieve its ends.19 In its ideal vision, the AIIB would grant China “a virtuous cycle of benefits, expanding its political and economic leverage across Asia and aiding its efforts to elevate the yuan as an international reserve currency.”20
The Chinese and Taiwanese base their claims on Xia and Han dynasty records and 1947 map made by the Kuomintang featuring a nine-dash line that includes the Spratly Islands and Scarborough Shoal. (Jeff Himmelman, “A Game of Shark and Minnow,” The New York Times, October 27, 2013, accessed April 30, 2014, http://www.nytimes.com/newsgraphics/2013/10/27/south-china-sea/). In the dispute over the Spratly Islands, the Philippines’ claim differs from that of all other claimants in that it is solely geographic, made under a framework of international law, unlike the claims of the People’s Republic of China (PRC), Vietnam, Malaysia, Taiwan, Brunei, which are based on historical sovereignty.2
The 1982 UN Convention on the Law of the Sea’s Article 55 defines the EEE as “an area beyond and adjacent to the territorial sea,” and Article 57 dictates that it “shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.” (“ United Nations Convention on the Law of the Sea,” United Nations, accessed April 30, 2014, http://www.un.org/depts/los/convention_agreements/texts/unclos/part5.htm)3
Justice Antonio T. Carpio, “What’s at stake in our case vs China,” Rappler, March 9, 2014, accessed April 30, 2014, http://www.rappler.com/thought-leaders/52540-philippines-case-china-carpio4
Jay L. Batongbacal, “Vietnam’s Impact on the Philippines/China Arbitration: A Closer Look,” cogitASIA, December 18, 2014, accessed June 15, 2015, http://cogitasia.com/vietnams-impact-on-the-philippineschina-arbitration-a-closer-look/5
Mark Felsenthal and Matt Spetalnick, “Obama says U.S. commitment to defend Philippines 'ironclad',” Reuters, April 29, 2014, accessed April 30, 2014, http://www.reuters.com/article/2014/04/29/us-philippines-usa-obama-idUSBREA3S02T201404296
Ellen Tordesillas, “Obama Shatters Delusions of Many Filipinos,” The Inbox, April 29, 2014, accessed April 30, 2014, https://ph.news.yahoo.com/blogs/the-inbox/obama-disabused-delusions-many-filipinos-152712488.html7
Julie Pace, “Obama visits Philippines as deal signed to give U.S. military greater access to area bases,” Associated Press, April 28, 2014, accessed April 30, 2014, http://www.huffingtonpost.com/2014/04/28/obama-visits-philippines_n_5224504.html8
“…In [the U.S. Government’s] view, Spratly Islands do not fall within either of the first two categories of Article V relating to territories. First category evidently covers those territories over which a party is recognized as sovereign. As you are aware, [United States Government] regards question of sovereignty over Spratlys (including ‘Freedomland’ or ‘Kalayaan’) as undetermined, and we take no position merits of claims of various disputants. We note that at time MDT signed, (the Government of the Philippines) had asserted no claim to any of the Spratly Islands, and had protested neither Vietnamese nor Chinese claims, which had been reiterated at time of negotiation of 1951 Japanese Peace Treaty. [United States Government] announced publicly at the time it considered sovereignty question undetermined. Furthermore, Spratly Islands all fall outside Philippine territory as ceded in to US by 1898 Treaty with Spain. [United States Government] accompanying presentation of MDT also exclude Spratlys from territories covered by MDT….“[This] does not mean Phils could not expand territory over which it is sovereign. We do not see legal basis at this time, however, for supporting the claim to Spratlys of one country over that of other claimants. Continuous, effective, and uncontested occupation and administration of territory is a primary foundation for establishing sovereignty in absence of international settlement, but Phil occupation could hardly be termed uncontested in face of claims and protests of Chinese and Vietnamese. (The U.S. Government) would welcome and recognize international settlement agreed to by all claimants, though we acknowledge this would be cold comfort in light of present political realities.” Henry Kissinger, in a secret cable on June 9, 1975 to Sullivan, quoted in Rappler, in “EDCA and the West Philippine Sea,” on December 12, 2014.9
Jay L. Batongbacal, “EDCA and the West Philippine Sea,” Rappler.com, December 12, 2014, accessed June 29, 2015, http://www.rappler.com/thought-leaders/77823-edca-west-philippine-sea-america10
“China, you’re out of step,” The Manila Times, May 30, 2015, accessed June 4, 2015, http://www.manilatimes.net/china-youre-out-of-step/18770411
Jane Perlez, “China Pushes Back Against U.S. Influence in the Seas of East Asia,” The New York Times, October 28, 2015, accessed November 6, 2015.13
Francisco S. Tatad, “Aquino, China, Malaysia and the MILF,” The Manila Times, May 26, 2015, accessed June 15, 2015, http://www.manilatimes.net/aquino-china-malaysia-and-the-milf/186808/16
Earl G. Parreno, “Beyond the territorial dispute in the South China Sea,” The PCIJ Blog, April 29, 2015, accessed June 4, 2015, http://pcij.org/blog/2015/04/29/beyond-the-territorial-dispute-in-the-south-china-sea17
Ayee Macaraig, “‘China miscalculated US response to reclamation,’” Rappler.com, June 9, 2015, accessed June 29, 2015, http://www.rappler.com/nation/95735-china-us-reclamation-miscalculation18
Jeff M. Smith, “Beware China’s Grand Strategy: How Obama Can Set the Right Red Lines,” Foreign Affairs, May 20, 2015, accessed June 15, 2015, https://www.foreignaffairs.com/articles/china/2015-05-20/beware-chinas-grand-strategy19