A new arbitration in the South China Sea?
President Marcos should consider filing a new arbitration case, under the United Nations Convention on the Law of the Sea (Unclos), against China. This time, it is over China’s recent dangerous actions against our coast guard and private contract vessels, during the resupply of our troops at the BRP Sierra Madre, in the Ayungin Shoal.
The new case should be narrowly drawn, as was our first arbitration filed against China in 2013, which resulted in the landmark Arbitral Award in our favor in 2016.
For purposes of ascertaining whether we have causes of action for a new case, we review what the Tribunal held.
First, the tribunal award held generally that China’s “nine-dash line” is contrary to Unclos.
Second, with reference to Ayungin Shoal, it declared that: (1) the same is within the exclusive economic zone of the Philippines, (2) it is but a low tide elevation, and (3) in May 2013 fishermen from Chinese flagged vessels engaged in fishing within Ayungin Shoal, and China, through its marine surveillance vessels, failed to exercise due diligence to prevent such fishing, in violation of the Philippines sovereign rights with respect to fishing within its exclusive economic zone. Thus, China breached its obligations under Article 58(3) of Unclos.
Third, which is of particular interest to us now, is the finding of the Tribunal regarding incidents that happened in two days in May 2012, “with respect to the operation of Chinese law enforcement vessels” in the vicinity of Scarborough Shoal. True, these findings are about activities in 2012 that occurred at Scarborough Shoal, not in Ayungin Shoal. But these findings of fact and law are important in that they may constitute building blocks for the new case. Tribunal held: “a. that China’s operation of its law enforcement vessels on 28 April 2012 and 26 May 2012 created serious risk of collision and danger to Philippine ships and personnel; and b. that China’s operation of its law enforcement vessels on 28 April 2012 and 26 May 2012 violated Rules 2, 6, 7, 8, 15, and 16 of the Convention on the International Regulations for Preventing Collisions at Sea (Colregs), 1972, … [and] declared [that] China has breached its obligations under Article 94 of the Convention …”
The treaty cited is Colregs, which entered into force in 1977, with 156 parties, including the Philippines and China. Colregs is concerned with regulations relating to the prevention of collisions at sea. Section 94 of the Unclos, on the other hand, deals with the Duties of the Flag States. Section 3 of Article 94 states that “every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard to … the prevention of collisions.”
While the 2016 tribunal award did not rule on the events that only recently occurred on Feb. 6, Aug. 5, and Aug. 22, 2023, in Ayungin Shoal, it held that the dangerous maneuvers of Chinese law enforcement vessels on our Philippine Coast Guard vessels, in 2012 near Scarborough Shoal, violated Unclos, Colregs, and international law. The recent incidents involved the use of military-grade lasers (Feb. 5) and water cannons (Aug. 5) against our coast guard.
Mr. Marcos should give the Office of the Solicitor General (OSG) the mandate and the resources to document the facts surrounding these 2023 Ayungin Shoal incidents. The OSG should determine whether China’s actions violate Unclos, Colregs, and the 2016 Arbitral Award, and further whether to include a claim for monetary damages. The OSG must be ready with a draft arbitration claim, which can be filed at a moment’s notice, upon the President’s command. An arbitration case should be among the options in the President’s toolkit, as he fulfills his duty as chief architect of Philippine foreign policy.
Finally, I recommend that the OSG prepare and file the claim by itself, without hiring international counsel.
Francis H. Jardeleza served as agent for the Republic of the Philippines in its successful arbitral proceeding against the People’s Republic of China over the latter’s nine-dash line claim in the South China Sea.
