Evolving a legal strategy in the SCS

The 2016 Arbitral Award favoring the Philippines was a landmark decision that signified a legal victory not only for the Philippines but also for international law in general, and the United Nations Convention on the Law of the Sea (Unclos) in particular.

It is time to reinforce this through a situation where the tribunal, created under Unclos and the International Tribunal for the Law of the Sea (Itlos), could make a pronouncement that recognizes the extent of the country’s Unclos entitlements as elaborated in the 2016 ruling. This can be done by the Philippines seizing the vessel of a flag state that is a member of Unclos but is not a claimant to any portion of the South China Sea (SCS). The vessel must be in the exclusive economic zone (EEZ) of the Philippines, in an area also claimed by China under its arbitrary nine-dash line theory. The incident should preferably happen a distance away from any of the features being claimed by China.

Through diplomacy and dialogue, the flag state could be convinced to file a case in Itlos for provisional release under Article 292 of Unclos. A case questioning the legality of the seizure could also be filed. The Philippines would then join the proceedings. Itlos has compulsory jurisdiction in all cases concerning the prompt release of vessels and crews. This is probably why China has not seized the vessels of other SCS claimants. It would be helpful if the flag state of the seized vessel is categorically against the expansive claims of China in the SCS. No state has categorically and formally accepted China’s arbitrary claims.

In making its ruling, Itlos would have to identify where the seizure was made which, in fact and in law, would be within the EEZ of the Philippines. This determination would be greatly aided by both parties stipulating to this fact. By such determination, the Itlos would have recognized that the Philippines has exclusive sovereign rights over the area.

China has always made the spurious claim that the Philippines had made a commitment not to file any case against it concerning the SCS and only limit itself to diplomacy and negotiation. China will be hard-pressed to make this assertion given that under this strategy, the Philippines won’t be bringing any case against China, but would, in fact, be hauled before the tribunal by the flag state of the seized vessel. This would also negate issues on compulsory jurisdiction, another favorite argument of China, as it is the Philippines that is being impleaded and would submit itself willingly to the compulsory jurisdiction of the tribunal.

It is possible that China would assert that Itlos has no jurisdiction in this case, arguing that sovereignty issues are involved. But for Itlos to pay even the slightest attention to this or any other objections China might raise, China would have to implead and subject itself to Itlos jurisdiction — something that the Philippines is certainly prepared for.

Even if the case were ruled against the Philippines, the determination alone that the seizure was made within the EEZ of the Philippines would be a major legal victory. Win or lose, recognition by Itlos of the extent of the country’s EEZ in the SCS would be a victory in itself.

This is not to say that the seizure to be made by the Philippines should not be without basis and would be done merely to trigger a case. The Philippines must comply with its international obligations and seize vessels only if they are suspected of carrying out illegal activities within its EEZ, like exploiting living and nonliving resources in the area. Studies have shown that about half the world’s fishing boats are in the SCS. Regional fisheries in the SCS are estimated to generate $100 billion annually, supporting the livelihoods of about 3.7 million people, based on news reports. Studies also show that the SCS and the livelihood it generates are seriously threatened by widespread illegal fishing, with Chinese fishing vessels being the most numerous. Together with climate change, illegal fishing has severely depleted fish resources.

This strategy could help not only to blunt China’s relentless efforts to assert the legality of its nine-dash line claims, but would contribute as well to preventing illegal fishing and the serious depletion of fish resources in the SCS.

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Carlos D. Sorreta is a career foreign service officer and an undersecretary at the Department of Foreign Affairs. He was an ambassador to Russia, assistant secretary for American affairs, and director general of the Foreign Service Institute. He was also deputy chief of mission at the Philippine Embassy in Washington, and deputy permanent representative at the Philippine Mission to the UN in New York. The views expressed in this commentary are his own.