The Philippines' UNCLOS Claim and the PR Battle

Against China
Manila submitting its disputes with China to UNCLOS arbitration is part of a
larger battle for international opinion.

By Shannon Tiezzi
April 01, 2014

As expected, Philippine Secretary of Foreign Affairs Albert del Rosario announced

Sunday that the Philippines has submitted a memorial seeking a ruling on China’s “nine
dash line” from the Permanent Court of Arbitration in The Hague. The Philippines seeks
to have China’s claim to much of the South China Sea, including several features within
the Philippine Exclusive Economic Zone, declared invalid under the UN Convention on
the Law of the Sea. The case would be the first time international legal experts formally
consider the validity of China’s territorial claims in the South China Sea.

According to Rosario, the memorial is nearly 4,000 pages in length, including Manila’s
analysis of applicable laws, the “specific relief sought by the Philippines,” and
documentary evidence and maps designed to back up Philippine claims. Rosario ended
his statement by saying:

With firm conviction, the ultimate purpose of the Memorial is our national interest. It
is about defending what is legitimately ours. It is about securing our children’s future.
It is about guaranteeing freedom of navigation for all nations. It is about helping to
preserve regional peace, security and stability. And finally, it is about seeking not just
any kind of resolution but a just and durable solution grounded on International Law.

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While there have been many reports on China’s PR battle against Japan, few have
noticed that the Philippines is also attempting to defend its territorial dispute in the
court of public opinion. The move to file a request for arbitration in UNCLOS is part of
this gambit. Thus, Rosario’s final statement on the arbitration, while it acknowledges
the paramount importance of the Philippines’ “national interest,” also seeks to claim the
moral high ground by painting the case as a milestone in regional security and
international law. By filing such a case, Manila not only hopes to win a favorable ruling,
but wants to paint itself as a positive force in the region.
Philippine leaders knew that China would not participate in the arbitration process by
submitting a counter-claim, making a Philippine victory much more likely. While such a
ruling would do nothing to change the situation on the ground, it would be a PR victory
for the Philippines, allowing Manila to claim its position is internationally sanctioned.
The PR aspect of the arbitration claim is easily apparent from the Department of
Foreign Affairs Website, which prominently features a link to a colorful newsletter on
“The West Philippine Sea Arbitration.” This document prominently features quotes
from international experts affirming the symbolic and legal value of the arbitration—
both showcasing previous PR gains and clearly hoping to sway more to the Philippine
point of view.

But the UNCLOS arbitration is only one part of the Philippines strategy. There have also
been more pointed attempts to court international journalists. Earlier this year,
President Benigno Aquino held a 90-minute interview with journalists in the
Presidential Palace. During the interview, he compared China to World War II-era
Germany, with the Philippines playing the part of Czechoslovakia. Accordingly, he
argued against appeasing China by giving in to its territorial demands. “At what point do
you say, ‘Enough is enough’? Well, the world has to say it — remember that the
Sudetenland was given in an attempt to appease Hitler to prevent World War II,”
Aquino said.

The Philippines has made other outreaches to foreign journalists, including involving
them directly in a confrontation over disputed territories. Reuters reported
that international media members were invited aboard a Philippine ship transporting
supplies to a military outpost on the disputed Second Thomas Shoal. After successfully
avoiding the Chinese ships blockading the shoal, the Philippine captain told Reuters, “If
we didn’t change direction, if we didn’t change course, then we would have collided with
them.” Journalists also noted that, during the voyage, aircraft from the U.S., the
Philippines, and China all flew above the Philippine boat. In addition to providing a
chance for the Philippine government to showcase its claims, the inclusion of journalists
may also have prevented a stronger Chinese response to the Philippine supply run.

China responded angrily to each of these gambits. Most recently, in Monday’s press
conference, Hong also decried the “reporting trip” to Second Thomas Shoal as “a
deliberately schemed activity with the purpose of further hyping up the issue of the
Ren’ai Reef … serving its attempt to illegally snatch the Ren’ai Reef which is China’s
territory.” Hong added, “China will by no means allow the Philippine side to seize the
Ren’ai Reef [Second Thomas Shoal] in any form, nor will China allow it to build facilities
on the Ren’ai Reef in defiance of the Declaration on the Conduct of Parties in the South
China Sea (DOC). The Philippine side will have to take the consequences caused by its
provocative actions.”

On Sunday, Foreign Ministry spokesman Hong Lei also issued a special statement on
the Philippine request for arbitration. First, Hong reiterated China’s position that
“China has indisputable sovereignty over the Nansha Islands [Spratly Islands] and their
adjacent waters.” “No matter how the Philippine memorial is packaged,” Hong said, “the
direct cause of the dispute between China and the Philippines is the latter’s illegal
occupation of some of China’s islands and reefs in the South China Sea.”

Hong also repeated China’s opposition to international arbitration over these issues,
given China’s preference for “direct negotiations with countries concerned.” Hong
argued that, by submitting the case for arbitration, the Philippines was in violation of
previous agreements to solve issues bilaterally, including the 2002 ASEAN Declaration
on the Conduct of Parties in the South China Sea. “China urges the Philippines to
comprehensively and effectively implement the consensus repeatedly reaffirmed
between the two sides and the DOC, and return to the right track of settling the disputes
through bilateral negotiations,” Hong concluded.

Despite China’s opposition, the UNCLOS-based arbitration will move forward, and
could have an impact on all other South China Sea disputes. For one thing,
the Philippines is seeking clarification on whether partially-submerged features (such as
the Scarborough Shoal) can be used as the basis for a full EEZ (200 nautical miles) or
only a “territorial sea” of 12 nautical miles. Such answers could have important legal
ramifications for other claims in the South China Sea, besides the Philippines-China
disputes. However, Rosario has said he does not expect a ruling on the case before the
end of 2015—leaving plenty of time for the PR war to continue.

South China Sea: Is China Considering Construction

Work at Scarborough Shoal Again?
New signs emerge that the prospect of Chinese construction at South China
Sea hasn’t entirely faded since 2016.

By Ankit Panda
March 18, 2017

In the first half of 2016, before the July ruling by the Permanent Court of Arbitration-
based tribunal, senior U.S. officials expressed concerns that China would start land
reclamation activities at Scarborough Shoal, a South China Sea feature that it had
illegally seized from the Philippines after a 2012 stand-off, prompting the former
Philippine administration led by President Benigno Aquino III to file its case at the PCA
in the first place.

Despite those concerns, Chinese work never began at Scarborough Shoal. Following the
ruling, then-newly inaugurated Philippine President Rodrigo Duterte embarked on a
period of rapprochement with Beijing. Setting aside the hostility between Manila and
Beijing that had festered over Aquino’s final years in office, Duterte visited China in late
2016, signing a range of bilateral agreements. In all this time, not only did China not
escalate matters around Scarborough Shoal, but it even temporarily allowed Philippine
fishermen access to waters near the shoal, allowing Duterte to claim a political
coup. Duterte later declared a marine sanctuary and no-fishing zone within the
Scarborough Shoal lagoon in turn.

As The Diplomat‘s Shannon Tiezzi has explained, there are lots of good reasons why
China decided not to proceed with any kind of reclamation work at Scarborough —
particularly in the second half of 2016, when it became clear that Duterte would offer an
unparalleled opportunity for Manila-Beijing rapprochement. That said, the idea of
reclamation or construction work at Scarborough hasn’t fallen off the radar for China.

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A Chinese state-owned newspaper, the Hainan Daily, quoted Sansha Communist Party
Secretary Xiao Jie as saying that China would build environmental monitoring stations
across multiple South China Sea features. (Sansha is the Chinese administrative unit
responsible for the disputed South China Sea features.) That in itself isn’t new; Beijing
has, since 2015, used meteorological and oceanographic research as a pretense for its
ambitious and unprecedented reclamation work in the Spratly group. What was
interesting about Xiao’s quoted remarks, however, according to the Wall Street
Journal‘s Chun Han Wong, was that the Hainan Daily quoted him as saying the
monitoring stations would be built on six features, including Scarborough Shoal, which
China calls Huangyan Dao.

That in itself would be big news, had Hainan Daily not gone on to delete the reference
to Scarborough, raising more questions. The Chinese government has not officially
addressed the report and it’s not clear if Xiao meant to include Scarborough on the list.
Any reclamation work at Scarborough by China would not only violate international law
and the Association of Southeast Asian Nation’s 2002 Declaration on the Conduct of
Parties in the South China Sea, but would offer a serious setback to fast-improving
China-Philippine ties under Duterte. The Philippine president has drawn “a red line” at
Scarborough Shoal over any Chinese reclamation work. The Philippine defense minister
has also expressed concern over the possible emplacement of Chinese oil exploration
rigs in the waters near Scarborough.

Construction work at Scarborough represents a different case from the seven headline-
grabbing artificial islands China has constructed in the Spratly group. Beijing seized
Scarborough through coercion in 2012; the Spratly features had previously been
occupied by Beijing since the 1990s. Other South China Sea claimant states have also
conducted construction and reclamation work on possessions they occupy (though none
at the pace and scope of China’s work since 2014).

It’s unclear if we’ll get any official Chinese comment on Xiao’s comments, which came
on the sidelines of the National People’s Congress in Beijing, but, if he didn’t misspeak,
the prospect of China seriously escalating the status quo at Scarborough Shoal may
resurface soon.