An Analysis of Multilateralism and its impact on the Peaceful

Resolution of the West Philippine Sea (South China Sea)

Dispute with the People’s Republic of China

Presented to:

Judge Charito Sawali

Submitted by Group 1:

Alemania, Krista Belle

Arasula, Leah Karissa

Ascalon, Ricardo

Atienza, Joanna Myrene

Biglete, Catherine

Brual, Nico Allen

Buhay, Jhudith

CHAPTER 1

1.1 INTRODUCTION

The Philippines is currently locked-up in a territorial spat with China and the

former has continuously labored to assert its rights in accordance with the 1982 United

Nations Convention of the Law of the Sea. It is a battle between David and Goliath with

the People’s Republic of China (PRC) aggressively militarizing the area, with its 9-dash

rule, by building artificial islands on atolls and reefs also claimed by the Philippines1.

The encroachment by China in the Philippine exclusive economic zone and territorial

waters have placed in peril the national interests of the country and its territorial integrity

by denying the entry of Filipino fishermen in traditional fishing grounds and by

occupying territories which the Philippines has claims based on legal grounds backed

up by International Law. Bearing in mind that the Philippines renounces war as an

instrument of National Policy2 and that the prime duty of the Philippine government is to

serve and protect the people3, a diplomatic track and arbitration is necessary to defend

its rights and territorial integrity in the West Philippine Sea. Thus, multilateralism as the

1Michael T. Klare, Resource Wars: The New Landscape of Global Conflict, (Macmillan Publishers,2001) p.422-431.2Constitution, Art. 2., Sec. 3. 3 Ibid.

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set-up of the 21st century global order will play a key role on determining the outcome

and settlement of disputes in the West Philippine Sea (South China Sea)4.

1.2 BACKGROUND OF THE STUDY

Multilateralism is defined as the practice of policy coordination among three or

more states through formal and informal international governmental institutions such as

the United Nations, the European Union, and nonproliferation regimes or ad hoc

arrangements. It had become a norm of diplomatic practice and a fundamental feature

of international organizations, reflecting the structure and processes of

intergovernmental and interstate relations and a core characteristic of the post–World

War II international order. This order persisted in the 21st century by the abidance of

State entities for the non-proliferation of symmetric warfare and the continuous resorting

to international forums in settling conflicting interests between member States of the

United Nations5.

4J.F. Aviel, The Evolution of Multilateral Diplomacy (Boulder, CO: Westview, 2005) pp.15-22.5 James Muldoom, J.Aviel, RichardReitano, and Earl Sullivan, The New Dynamics of Multilateralism: Diplomacy, International Organizations, and Global Governance. (Boulder, CO: Westview, 2011)pp. 2-23.

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It is worth to note that the West Philippine Sea (South China Sea) dispute has garnered

international highlights as the next possible international flashpoint due to conflicting

claims between the Philippines and China over the area which is believed to contain

vast amounts of minerals including oil and natural gas6. Legal steps has been taken by

the Philippines in order to protect its interests in the area by resorting to an arbitration

case filed before the International Tribunal on the Law of the Sea, challenging the 9-

dash rule of China which is not grounded nor supported by International Law. The steps

taken by the Philippine government is in abidance with the spirit of international comity

and in accord with the mandate of the United Nations that disputes must be resolved

peacefully.Below is an illustration of the area of conflict and the extent of the claims of

each party:

7

6Supra at Note 1, p.329.7 Illustration Retrieved from: http://www.cfr.org/china/south-china-sea-tensions/p29790.

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“China’s 9-dashed lines were first made known by China to its own people in 1947.

China officially submitted a map of its 9-dashed lines to the United Nations only in 2009.

Up to today the 9-dashes, which have been increased to 10 dashes in 2013, have no

fixed coordinates. China has never explained the legal or factual basis of the 9-dashed

lines. Under its 9-dashed lines China asserts control and “indisputable sovereignty” to

almost 90% of the South China Sea, including China’s coastal waters outside the 9-

dashed lines. Of course, this blatantly violates international law because no State could

appropriate for itself the high seas, whether before or after UNCLOS. China is the only

country in the world today that is claiming “indisputable sovereignty” over the high

seas.” 8

From the illustration, it is observed that the 9-dash line rule asserted by China

denies the Philippines access to its Exclusive Economic Zone granted to it by the 1982

UNCLOS. Thus this research presents the impact of multilateralism on reconciling

conflicting interests and settling the dispute in the West Philippine Sea (South China

Sea). Emphasis is placed on the role that multilateralism will partake in the solutions to

be proposed by the Philippines with China without contradicting the Philippine Foreign

Policy and the Philippine National Interests.

1.3 STATEMENT OF THE PROBLEM8 Justice Antonio Carpio, Speech delivered on the 75th Anniversary of the College of Law, University of San Agustin, Iloilo City (30 August 2014).

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This is an analysis of multilateralism and its impact on the peaceful resolution of

the West Philippine Sea (South China Sea) dispute between the Philippines and the

People’s Republic of China.

More particularly, it endeavors to answer the following questions:

1. What is China’s 9-dash rule?

2. How does this rule affect the Philippine territory?

a. What are the actions undertaken by the Philippines to protect its territorial

integrity?

b. How does international law on territorial dispute support the Philippine Claim?

c. How does the 21st century global order affect the settlement of dispute?

3. As a member of the community of nations, how can the Philippines propose

solutions with China without contradicting the pillars of the Philippine Foreign

Policy?

a. How do these solutions conform with the Philippine’s foreign policy?

b. How can multilateral support from the non-claimant states help in the

settlement of territorial conflict with China?

1.4 ASSUMPTIONS OF THE STUDY

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The study is based on the following assumptions:

1. International Organizations such as the United Nations is equipped with

mechanism in settling conflicting interests between member States.

2. Resolutions promulgated by its UN agencies/tribunals are binding to State

parties in order to uphold solidarity and comity of Nations as a member of the

international community.

3. Multilateral support to a particular decision promulgated by an agency or

tribunal of the UN brings enforceability to the judgment.

4. International law governs the 21st century global order.

5. ASEAN, as a multilateral entity, will support the Philippines in its proposed

solutions in the dispute with China.

1.5 OBJECTIVE OF THE STUDY

This research undertaking investigates and determines the impact of

multilateralism on the peaceful resolution of the dispute between the Philippines and

China. This current geo-political context may provide both challenges and opportunities

in empowering the Philippine interest and for the peaceful resolution of these disputes.

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Established cases involving maritime disputes will also be used in the study to provide a

better overview on how multilateralism affected previous settlements of maritime

conflicts.

1.6 SIGNIFICANCE OF THE STUDY

This study is significant in promoting awareness to maritime rights in the West

Philippine Sea (South China Sea) and to the steps taken by the Philippine Government

to secure our rights and territorial integrity against the odds. Also, this will be beneficial

to the academe in providing a multilateral perspective for the peaceful resolution of the

dispute and to highlight the strength of multilateral cooperation in settling between State

entities. More importantly, this research will educate students on what is at stake in the

disputed area and how it will impact the future of the Philippines in economic and

security aspects.

1.7 DEFINITION OF TERMS

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The following terms are defined as follows:

21st Century Global Order - it is a diplomatic term characterized by multilateral

cooperation entered into in accordance with the principles of the United Nations and the

participation of States in the preservation of global peace.9

China - In this research, China refers to the People’s Republic of China (PRC) with

Beijing as its capital.

China’s 9-Dash Line - refers to the demarcation line used initially by the government of

the Republic of China (ROC / Taiwan), and subsequently also by the government of the

People's Republic of China (PRC), for their claims of the major part of the South China

Sea.10

Exclusive Economic Zone (EEZ) - is a sea zone prescribed by the United Nations

Convention on the Law of the Sea over which a state has special rights regarding the

9 International Institutions and Global Governance Program World Order in the 21st Century; A New Initiative of the Council on Foreign Relations May 1, 2008, Retrieved from: http://www.cfr.org/content/thinktank/CFR_Global%20_Governance_%20Program.pdf.10 Zachary Kech, China’s “9-dash line”, The Diplomat (2014).

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exploration and use of marine resources, including energy production from water and

wind. It stretches from the baseline out to 200 nautical miles (nmi) from its coast.11

High Seas - A term of international and maritime law; the open ocean, not part of the

exclusive economic zone, territorial sea or internal waters of any state.12

Multilateralism- is defined as multiple countries working in concert on a given issue.

Multilateralism was defined by Miles Kahler as “international governance of the ‘many,’”

and its central principle was “opposition [of] bilateral discriminatory arrangements that

were believed to enhance the leverage of the powerful over the weak and to increase

international conflict.”  In 1990, Robert Keohane defined multilateralism as “the practice

of coordinating national policies in groups of three or more states”.13

Territorial Sea - Waters extending up to 12 miles from the baseline of a coastal state

over which the state exercises sovereignty excepting innocent and transit passage14.

111982 United Nations Convention on the Law of the Sea, Part V, Art. 55-59.12Duhaime Legal Dictionary, retrieved from: http://www.duhaime.org/LegalDictionary/H/HighSeas.aspx.13International Law Reports, vol. 91, at 584, Lauterpacht& Greenwood eds.1993.14Duhaime Legal Dictionary, retrieved from:http://www.duhaime.org/LegalDictionary/H/TerritorialSea.aspx.

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CHAPTER 2

REVIEW OF RELATED LITERATURE AND STUDIES

This chapter presents a review of related literature and studies which provided

the researcher with ideas related to the stipulated problems in the study.

2.1 LITERATURE

In Chapter 1, Article 1 of the Charter of the United Nations, one of the purposes

of the United Nations is “to maintain international peace and security, and to that end: to

take effective collective measures for the prevention and removal of threats to the

peace, and for the suppression of acts of aggression or other breaches of the peace,

and to bring about by peaceful means, and in conformity with the principles of justice

and international law, adjustment or settlement of international disputes or situations

which might lead to a breach of the peace”. Another purpose for the creation of the

United Nations was “to develop friendly relations among nations based on respect for

the principle of equal rights and self-determination of peoples, and to take other

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appropriate measures to strengthen universal peace”. The creation of the United

Nations highlights the need for the prevention of the escalation of regional conflicts for

the preservation of international comity and solidarity, and for the preservation of

peace.15

As stated by James Muldoon Jr. in the book “Return to Multilateralism, 1992”, the

proliferation of international organizations during the twentieth century, especially in the

aftermath of World War II, was an important innovation in the governance of

international society. The aforementioned marked a shift from the “old” international

order, which was based on a commitment of the great powers to manage their political

and security relationships through consultation and negotiations (e.g., the Concert of

Europe), to a “new” world order, also known as the 21st Century Global Order, centered

on the United Nations system and a commitment by all states to manage their political,

economic, and social relationships through collaboration (Mangone 1954)16. However,

the fundamental sources of the “old” international order – namely war, the balance of

power, the role of the great powers, international law, and traditional diplomacy –

continued to be the “effective institutions of international society” to which the United

Nations and other international organizations contribute (Bull 1995)17. In other words,

15Charter of the United Nations , Retrieved from: http://www.un.org/en/documents/charter/chapter1.html.16 G.J. Mangone, A Short History of International Organization. (New York: McGraw-Hill, 1954).17H.Bull, The Anarchical Society: A Study of Order in World Politics, 2nd edn. (London: Macmillan, 1995).

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the new order established after World War II reflected a shift in the emphasis placed on

these institutions of international society – more on multilateral diplomacy, international

law, and the role of the great powers, and less on war and the balance of power – and

represented a more refined (perhaps even improved) institutional framework for order

and governance of a rapidly expanding international society (Webster 1962)18.This book

will provide the concept of multilateralism in consideration of the 21st century global

order and how it will impact the peaceful resolution in the West Philippine Sea (South

China Sea) dispute.

To provide for institutions governing maritime disputes, the member States of the

United Nations convened and codified the settled principles of the Law of the Sea which

was embodied in the 1982 UNCLOS. Thus, it is the most comprehensive attempt at

creating a unified regime for governance of the rights of nations with respect to the

world's oceans. The treaty addresses a number of topics including navigational rights,

economic rights, pollution of the seas, conservation of marine life, scientific exploration,

piracy, and more. It further states that in the exclusive economic zone, the coastal State

has sovereign rights for the purpose of exploring and exploiting, conserving and

managing the natural resources, whether living or non-living, of the waters superjacent

to the seabed and of the seabed and its subsoil, and with regard to other activities for

18 C. Webster,The Art and Practice of Diplomacy (New York: Barnes and Noble, 1962).

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the economic exploitation and exploration of the zone, such as the production of energy

from the water, currents and winds over an area of 200 nautical miles from the

archipelagicbaseline. 19 This convention will determine the legal basis of maritime claims

by the Philippines and the People’s Republic of China, and how it can determine the

proposal to be made with respect to the dispute in the West Philippine Sea (South

China Sea).In the case of Magallona vs Ermita, the Philippine Baseline law (RA.9522)

provides for the extent of the Philippine Territorial Waters in accordance with the

provisions and guidelines provided in the 1982 UNCLOS:

20

19 1982 United Nations Convention on the Law of the Sea, Part V Article 55 – 75.20Magallona vs. Ermita, G.R. No. 187167, August 16, 2011. Retrieved from: www.lawphil.net.

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This illustration provided in the mentioned case shall guide the researchers on the

extent of the Philippine claims in accordance with the established international law.

A constitution of a country is the fundamental law of the land. No law enacted nor

decisions promulgated will contravene the organic law as the constitution will always be

supreme. 21 The 1987 Philippine Constitution provides under Article 2, Sec. 2, “The

Philippines renounces war as an instrument of national policy, adopts the generally

accepted principles of international law as part of the law of the land and adheres to the

policy of peace, equality, justice, freedom, cooperation, and amity with all nations”22.

Also, under the same Article, Sec.7 thereof provides, “The State shall pursue an

independent foreign policy. In its relations with other states, the paramount

consideration shall be national sovereignty, territorial integrity, national interest, and the

right to self-determination”23. This guiding principle of the Philippine Constitution will

provide the researchers the paramount consideration in proposing for a solution with

China in the West Philippine Sea dispute (South China Sea).

The Business Dictionary defines Foreign Policy as a “plan of action adopted by

one nation in regards to its diplomatic dealings with other countries which are

21The Constitution of the Philippines: An Overview (2011) Retrieved from: https://philippineslaw.wordpress.com/2011/02/01/the-constitution-of-the-philippines-an-overview/22CONSTITUTION, Art. 2, Sec. 323Ibid.

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established as a systematic way to deal with issues that may arise with other

countries”.24Thus, the purpose of Philippine Foreign Policy is to secure the national

interest in our dealings with foreign nations, regional organizations and international

bodies. This has been done through its three long-established pillars, namely: 1)

promoting national security; 2) enhancing economic diplomacy; and 3) protecting the

rights and welfare of Filipinos overseas.25These long-established pillars will be very

important in the present study as the proposed solution shall conform to the

aforementioned and will not in any way contravene them.

2.2: STUDIES

Allen Yu, On China’s 9-Dashed Line and Why the Arbitrational Tribunal in Hague

Should Dismiss Philippine’s Case Against China26, provided the background of China’s

so-called “9-dashed” (originally “11 dashes”) as first promulgated by the Republic of

China (now known as Taiwain) in 1947 and made officially public in 1948. According to

the study, the original “11 dashes” were changed from “11 dashes” to “9 dashes” after

24Foreign Policy definition, Retrieved from: http://www.businessdictionary.com/definition/foreign-policy.html#ixzz3m1C6lBb2.25 Pillars of Philippine Foreign Policy, Retrieved from:http://www.dfa.gov.ph/index.php/component/content/category/91-philippine-foreign-policy.26Allen Yu, On China’s 9-Dashed Line and Why the Arbitrational Tribunal in Hague Should Dismiss Philippine’s Case Against China, (August 29, 2014).

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the People’s Republic of China (Beijing) and Vietnam negotiated a settlement in 1953

over the Beibu Bay area. The Chinese government based its Wet Philippine Sea (South

China Sea) claims on historical title dating back to the Xia dynasty (21st - 16th B.C.)27.

Also, in this study it provided how and why China will prevail over the cause of the

Philippines regarding the dispute. This perspective viewed from the Chinese side is

essential in determining steps on how the Philippines can reconcile with China in the

proposal for theresolution of the West Philippine Sea (South China Sea) dispute.

Beina Xu, South China Sea Tensions28, the study pointed out, that the South

China Sea holds proven oil reserves of at least seven billion barrels and an estimated

900 trillion cubic feet of natural gas (World Bank), which offers tremendous economic

opportunity for smaller nations like Malaysia, the Philippines, and Vietnam, and energy

security for China's large, growing economy. It was emphasized in the study that the

immediate source of conflict in the region is competition over resources, as

corroborated and supported by David Rosenberg, professor of political science at

Middlebury College. It further provided the fact that there are roughly half a billion

people who live within 100 miles of the South China Sea coastline, and the volume of

shipping through its waters has skyrocketed as China and ASEAN nations increase

international trade and oil imports. The need for resources, especially hydrocarbons and

27Ibid,. pp.3-9.28Beina Xu, South China Sea Tensions, (Council on Foreign Relations, May 14 2014).

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fisheries, also has intensified economic competition in the region, particularly given the

rapid coastal urbanization of China. "Behind it all, it's essentially the industrial revolution

of Asia," Rosenberg said. "And the South China Sea has become the hub of that."29

This study will provide for additional considerations in proposing for a resolution in

settlement of disputes with the People’s Republic of China in the West Philippine Sea

(South China Sea)

Senior Associate Justice Antonio T. Carpio, The Rule of Law in the West

Philippine Sea Dispute30, reiterated that the Rule of Law in the West Philippine Sea

dispute is UNCLOS. Thus, it stated that China’s 9-dash line cannot simply co-exist with

UNCLOS. The arguments presented by Justice Carpio in his speech impliedly stated

the need to pursue a multilateral approach by resulting to international forums because

those proposed by China is subject to conditions unfair and prejudicial to the interests of

the Philippines. Such proposal, in the form of joint development, constitutes a bilateral

approach in resolving the said dispute. This will provide a better opportunity to the

researchers to highlight the importance of multilateralism on the settlement of disputes

in the West Philippine Sea.

29Xu, op.cit. p.530Justice Antonio T. Carpio, The Rule of Law in the West Philippine Sea Dispute, (Speech delivered before the Philippine Bar Association 29 August 2013).

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Alan Dupont, Maritime Disputes in the South China Sea: ASEAN Dilemma,

explored the recent developments in the South China Sea from the perspectives of the

Philippines, Malaysia, Indonesia, and ASEAN, and in particular, how their policy

positions have evolved in response to escalating tensions over the linked territorial and

resource claims in the strategically important sea31. This study will provide a deeper

perspective on the resolutions to be proposed by the Philippines with China and how,

ASEAN – being a multilateral entity, impact the peaceful resolution of the dispute.

2.3 SYNTHESIS

There are various steps undertaken by both the Philippines and the People’s

Republic of China in resolving the dispute in the West Philippine Sea (South China

Sea). China proposed joint developments through bilateral agreements between them

and other claimant States. However, the Philippines deemed it not in harmony with our

Constitution and our Foreign Policy pillars as it tends to heavily favor the more powerful

China. For the Philippines, a multilateral approach will balance the unevenness of

powers between them and China.

31 Alan Dupont, Maritime Disputes in the South China Sea: ASEAN’S DILEMMA Retrieved from: http://csis.org/files/publication/140930_Hiebert_PerspectivesSouthChinaSea_Web.pdf.

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After the Second World War, the threat or use of force against another State was

outlawed in the charter of the United Nations, and along with it comes the desire to

resolve conflicts peacefully. This coming together of States, through agencies and

institutions created by multilateral agreements, forms part of the 21st Century Global

Order which then resulted to international comity and solidarity. Out of this solidarity,

UNCLOS was created which codified the laws of the sea and set-up mechanisms in

settling conflicting claims. UNCLOS, being a creation of multilateralism, will be used in

settling conflicting wants and claims in the West Philippine Sea (South China Sea),

which is proven to hold millions of barrels of oil and natural gas. The aforementioned is

essential to the growth and viability of the Philippine economy and its security in relation

to the provisions of the 1987 Philippine Constitution and to the established Philippine

foreign policy pillars.

CHAPTER III

METHODS AND PROCEDURE

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3.1: METHODS OF RESEARCH

This study involves the descriptive method of research to which primarily

describes the ‘what is’. It is a fact finding method with adequate interpretation wherein

the data collected are studied from the point of view of its objectives and assumptions

for the determination of the true meaning of the data collected. 32

This study involves the interaction of several variables investigated which

provides a conclusion on the basis of such interaction. The following are the variables

identified in this research:

1. Provisions of the 1987 Philippine Constitution

2. Provisions of the 1982 United Nations Convention of the Law of the Sea

3. Charter of the United Nations

4. The Pillars of the Philippine Foreign Policy

5. The vested rights of the Philippines under the 1982 UNCLOS

6. The principle of Multilateralism

3.2: DATA AND REFERENCE SOURCES

The data gathered and collected for the purposes of this study includes the

charter of the United Nations, the provisions of the 1987 Philippine Constitution, the 32 Dr. Mariano M. Ariola Principles and Methods of Research.(Manila, Rex Book Store, 2006).

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provisions of the 1982 UNCLOS, and the pillars of Philippine Foreign Policy. Also

included are the deliberations of the appropriate body and the jurisprudence related to

Philippine maritime rights, and the studies which are integral part of the data gathered

and collected.

3.3: COLLECTION TECHNIQUES

The researches acquired these sources by visiting the libraries of De La Salle

College of St. Benilde – School of Multidisciplinary Studies and the University of

Batangas – College of Law, by availing the services of Scribd to retrieve hard to find

books, and other sources in the internet particularly the Philippine Reports Online, the

Law-Phil project, and Asia Maritime Transparency Initiative.

3.4: ANALYTICAL TREATMENT OF DATA

Authorities and sources have been designated into different classifications and

treated on the basis of their relevance to the problem and the assumptions of the study.

Thereafter, the variables mentioned have been weighed together in order to come up

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with a conclusion on the impact of multilateralism on the peaceful resolution of the West

Philippine Sea dispute with China.

CHAPTER IV

PRESENTATION AND ANALYSIS OF DATA

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This chapter of the study will present data which addresses the question posited

in Chapter 1.

4.1 WHAT IS CHINA’S 9 DASH-RULE?

The 9-Dash Rule is a controversial demarcation line used by the People’s

Republic of China for its claim to territories and waters in the West Philippine Sea

(South China Sea), most notably over the Scarborough Shoal and the Paracel and

Spratly Islands—the two most important disputed island groups33. The line, which is

contested by the Philippines, Brunei, Malaysia, Taiwan, and Vietnam, encompasses

virtually the entire West Philippine Sea (South China Sea) region and caused immediate

controversy when China submitted a map to the UN in 2009 that included the

demarcation.34 Beijing's issuance of a new passport in late 2012 containing a map of the

disputed region based on the line drew fresh international criticism and backlash.35

ASEAN countries have contested this boundary, but China has insisted on the historical

legitimacy of the line based on survey expeditions, fishing activities, and naval patrols

33 Klare, ocp.cit. p.359.34 Matikas Santos, UNCLOS Explained: Why China’s Claim in the South China Sea are invalid, (Philippine Daily Inquirer, February 28, 2014).35 Norman Bordadora, Tarra Quismundo, TJ Burgonio, Ph mulls response to China’s e-passports with controversial maps, (Philippine Daily Inquirer, November 29, 2012).

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dating as far back as the fifteenth century, putting it at odds with the boundaries

UNCLOS has enforced for the region since 1994.36

37

4.2: HOW DOES THIS RULE AFFECT PHILIPPINE TERRITORRY?

From the illustration provided under 4.1 of this chapter, it illustrates that the 9-

Dash line of China encroaches on Philippine territorial waters and takes away 80% of

36 Supra at Note 30.37 Ibid.

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the 200 nautical miles exclusive economic zone of the Philippines vested unto it by the

1982 United Nations Convention on the Law of the Sea. 38

The deprivation of territories belonging to the Philippines has negative economic

impact when the country is deprived of its territory under the legal veil of the UNCLOS

as China asserts its so called 9-dash rule. April 2012, a Philippine Navy surveillance

plane spotted several Chinese fishing vessels in a lagoon at Scarborough. The news

prompted the Philippines to deploy its largest warship, BRP Gregorio del Pilar. On

Tuesday, The Inquirer notes that “Filipino sailors from the warship boarded the Chinese

vessels for an inspection, discovering large amounts of illegally collected corals, giant

clams and live sharks inside the first boat.” Two Chinese maritime surveillance ships

later positioned themselves in between the Gregorio del Pilar and the Chinese fishing

vessels, preventing the arrests of the fishermen. This later-on produced a stand-off

which lasted for several months and was only defused when a storm passed-by the

area. Scarborough Shoal, locally known as Panatag Shoal, has been a traditional

fishing grounds for fishermen from Zambales39. This is the first time where naval

tensions between the Philippines and the People’s Republic of China reaches a point

where naval skirmishes is a possibility40. Ever since this naval incident, Filipino

38 Supra at Note 34.39 Scarborough Shoal Standoff: A Time Line, May 9 2012 retrieved from: http://globalnation.inquirer.net/36003/scarborough-shoal-standoff-a-historicaltimeline40Supra at Note 1 p.390-394.

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fishermen has been deprived of rich fishing grounds thus affecting their financial and

economic stability.

Recent happenings in the West Philippine Sea (South China Sea) poses a threat

to Philippine sovereignty as a whole. The People’s Republic of China has recently

conducted massive land reclamation on reefs and atolls which is equipped with complex

military hardware which poses a great security risk to the Philippines. The militarization,

veiled as reclamation, in the West Philippine Sea (South China Sea) will escalate

tensions between the Philippines and the People’s Republic of China which might lead

to armed confrontation between the two nations41. This recent happening has brought

the attention of this conflict in the highlights of world politics as the conflict area is a vital

part of international trade and commerce. This reclamation may cut the access of the

Philippines to the West Philippine Sea (South China Sea) which will be prejudicial to the

national and economic security of the Nation. 42 Below is an illustration which will show

the locations of the areas reclaimed by China and its proximity to Philippine waters

vested unto it by UNCLOS.

41 Historian: Reef’s Reclamation China’s way to assert 9-dash-line claim, June 8, 2014 retrieved from: http://globalnation.inquirer.net/106049/historian-reefs-reclamation-chinas-way-to-assert-9-dash-line-claim42China reclamation may cut PH access to the West PH Sea , April 20, 2015 retrieved from: http://www.rappler.com/nation/90469-mischief-reef-reclamation-big-problem

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43

4.2.A : WHAT ARE THE ACTIONS UNDERTAKEN BY THE PHILIPPINES TO

PROTECT ITS TERRITORIAL INTEGRITY?

The 1987 Constitution echoes a sentiment that has been articulated in our

fundamental law since 1935. Section 2 of Article II adopts “the generally accepted 43 Ibid.

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principles of international law as part of the law of the land.”44 Based on this foundation,

the Philippines sought on Jan. 23, 2013, the resolution of the dispute with China over

the South China Sea through a peaceful process of arbitration. The Philippines issued a

Notification of Statement of Claim in accordance with the dispute settlement provisions

of UNCLOS under Art. 287 and Annex VII45. In this context, the Philippines is

requesting the Arbitral Tribunal to issue an Award that, among others:

a. Declares that China’s rights in regard to maritime areas in the South

China Sea, like the rights of the Philippines, are those that are

established by UNCLOS, and consist of its rights to a Territorial Sea and

Contiguous Zone under Part II of UNCLOS, to an EEZ under Part V, and

to a Continental Shelf under Part VI;

b. Declares that China’s maritime claims in the SCS based on its so-called

nine-dash line are contrary to UNCLOS and invalid;

c. Requires China to bring its domestic legislation into conformity with its

obligations under UNCLOS; and

d. Requires that China desist from activities that violate the rights of the

Philippines in its maritime domain in the West Philippine Sea.46

44 The 1987 Philippine Constitution, Art. 2.

45 1982 United Nations Convention on the Law of the Sea, Annex VII. Arbitration Article 1-13.46 Department of Foreign Affairs Statement on the UNCLOS Arbitral proceedings against China, January 22, 2013 retrieved from: http://www.dfa.gov.ph/newsroom/unclos.

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On July 7, 2015 a team of high ranking Philippine officials presented before the

International Tribunal on the Law of the Sea in The Hague, the Netherlands the

Philippine arguments over the dispute in the West Philippine Sea (South China Sea).

The delegation is asking the tribunal to declare China’s nine-dashed line void to which

the Philippines was constantly denied of its traditional fishing grounds affecting the

economic and food securities of the country47. The issue presented in the tribunal is

whether or not the said tribunal has jurisdiction over the case. The Philippine

Department of Foreign Affairs anticipates that the Arbitral Tribunal will rule on the

question of jurisdiction in the case within 90 days after the end of oral arguments. If it is

determined that the tribunal does indeed have jurisdiction, then the Philippines will likely

be asked to return to The Hague for more oral arguments. A final decision on case is

then expected by June 2016.48 The actions undertaken by the Philippines in its dispute

with china is in accordance with the spirit of multilateralism that created the charter of

the United Nations which provides: “to maintain international peace and security, and to

that end: to take effective collective measures for the prevention and removal of threats

to the peace, and for the suppression of acts of aggression or other breaches of the

peace, and to bring about by peaceful means, and in conformity with the principles of

47 The Hague Arguments: Philippine Case Against China explained, July 8, 2015, retrieved from: http://cnnphilippines.com/news/2015/07/06/hague-arguments-philippine-case-explained.html.

48 Arbitration on the South China Sea: Rulings from the Hague, October 2015, Retrieved from: http://amti.csis.org/ArbitrationTL/index.html

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justice and international law, adjustment or settlement of international disputes or

situations which might lead to a breach of the peace”.49

4.2.B : HOW DOES INTERNATIONAL LAW ON TERRITORIAL DISPUTE SUPPORT

THE PHILIPPINE CLAIM?

The United Nations Convention on the Law of the Sea (UNCLOS) entitles a

coastal state to an EEZ of 200 nautical miles of sea from its coastline. In some cases, it

includes rights to an extended continental shelf. That means the state has sovereign or

exclusive rights to use and develop resources in and from the area. Also, the said

convention provides numerous avenues of peaceful settlement of maritime disputes,

which include non-binding means between the disputing parties and binding means

involving third parties such as arbitration and adjudication. While all States may resort to

any of the non-binding means at any time, Art. 287 (3) requires them to select their

preferred binding means involving third parties. If they failed to do so, they are deemed

to have selected arbitration under UNCLOS Annex VII as the mode of dispute

settlement. Any selection, however, is subject to certain express limitations under Art.

297 (2) and 297 (3) and/or optional exceptions under Art. 298 (1). 50 Since neither the

49 Charter of the United Nations , Retrieved from: http://www.un.org/en/documents/charter/chapter1.shtml.

50 1982 United Nations Convention on the Law of the Sea, Annex VII. Arbitration Article 1-13.

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Philippines nor China expressed any preferred third-party dispute settlement

mechanism in their ratifications, both are deemed to have selected arbitration as the

means to settle maritime disputes between them concerning the interpretation and

application of UNCLOS, unless any of the express limitations and optional exceptions

are applicable. China formally rejected the Notification and Statement of Claim and

returned it to the Philippines on February 19, 2013. However, under Art. 9 of UNCLOS

Annex VII, the absence of a party or its failure to defend the case does not bar the

proceedings.51 From the foregoing, it is clear and imminent that the Philippine Claim is

supported and grounded on International Law

4.2.C. HOW DOES THE 21ST CENTURY GLOBAL ORDER AFFECT THE

SETTLEMENT OF DISPUTE?

The West Philippine Sea (South China Sea) as the center of the study involves

one of the vital sea routes of international trade and commerce as a third of the world’s

cargo passes through it. After the Second World War, the proliferation of international

organizations during the twentieth century was an important innovation in the

governance of international society. The aforementioned marked a shift from the “old”

51Jay Batongbacal, Arbitration 101, Philippines vs China, ( Asia Maritime Transparency Initiative, January 21, 2015).

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international order, which was based on a commitment of the great powers to manage

their political and security relationships through consultation and negotiations (e.g., the

Concert of Europe), to a “new” world order, also known as the 21st Century Global

Order, centered on the United Nations system and a commitment by all states to

manage their political, economic, and social relationships through collaboration52.  Thus,

dispute settlements in this new world order is on the peaceful trend as the United

Nations are composed of the majority of the Nations in the world. Both the Philippines

and the People’s Republic of China are members of the UN, and are also signatories to

the 1982 United Nations Convention on the Law of the Sea. International comity plays a

vital part in settling this dispute as the stakes are high in the conflict area. The UN

system is equipped with vital mechanisms in settling maritime disputes peacefully as

provided in Annexed VII of the 1982 Convention on the Law of the Sea53. In failing to

abide by the mechanisms imposed by the United Nations System, the People’s

Republic of China risks alienating themselves from the community of Nations. Pressure

from other UN member States will force China to abide by their agreements in order to

reach a peaceful solution in the West Philippine Sea (South China Sea) dispute.

52 Supra at Note16, p.77-78.

53 1982 United Nations Convention on the Law of the Sea, Annex VII. Arbitration.

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In a book written by Klare, it was noted that the biggest trading partner of China

is the United States and the European Union54. Thus support from the United States of

America and the European Union will be vital for the Philippine initiated arbitration case

filed before the International Tribunal on the Law of the Sea. The aforementioned nation

and union is the epitome of the 21st Century Global Order as they are actively engaged

in different multilateral agreements across the globe.55 Also, garnering support from

other Nations will affect the settlement of dispute on the said area to heavily favor the

Philippines as pressure and International criticisms will mount up against the acts and

doings of the People’s Republic of China in the West Philippine Sea (South China Sea).

4.3. AS A MEMBER OF THE COMMUNITY OF NATIONS, HOW CAN THE

PHILIPPINES PROPOSE SOLUTIONS WITH CHINA WITHOUT CONTRADICTING

THE PILLARS OF THE PHILIPPINE FOREIGN POLICY?

The three pillars of the Philippine foreign policy are: 1) preservation and

enhancement of national security, 2) promotion and attainment of economic security 3)

protection of the rights and promotion of the welfare and interest of Filipinos overseas 56.

54 Supra at Note 1, p.366.55 Muldoom, ocp.cit p.370-392.

56 Pillars of Philippine Foreign Policy, Retrieved from:http://www.dfa.gov.ph/index.php/component/content/category/91-philippine-foreign-policy.

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These established pillars are always in paramount consideration in diplomatic dealings

with other countries.

The first and second foreign policy, preservation and enhancement of national

security, and promotion and attainment of economic diplomacy, revolve around the

collective concern of the Philippines in safeguarding its territorial integrity. The third

policy raises the concern that Overseas Filipino Workers on China might be affected

with the ongoing dispute between the Philippines and the People’s Republic of China.

On the issue at hand, the West Philippine Sea (South China Sea) proves to be a vital

part of the defense of the Nation as it is one of the western boundaries facing Manila57.

Thus the reclamations in the West Philippine Sea (South China Sea) by China post a

clear and present danger on the security of the Philippines. Bearing in mind that the

country is a member of the community of nations, the Philippines can propose to China

a compromise in settling the territorial dispute in the West Philippine Sea through a

multilateral approach where all countries asserting claims in the area must all enter into

a negotiating table with international entities as mediators. These entities would be the

United Nations through the International Tribunal on the Law of the Sea and the

Association of Southeast Asian Nations. It is worth to note that treating the dispute as a

series of bilateral affairs increases Chinese gains58, for which reason the Philippines 57 Jay Batongbacal, EDCA and the West Philippine Sea, December 12, 2014 Retrieved from: http://www.rappler.com/thought-leaders/77823-edca-west-philippine-sea-america.58 Xu, op.cit. p.8

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must convince ASEAN that regional cohesion and cooperation against China and the

promotion of the United Nations Convention on the law of the Sea is crucial over the

long-term for all ASEAN member states. Indeed, regional cohesion and cooperation

provides the best stable counter-balance to growing Chinese power, rather than a great

power contest in Asia between the US and China that invites more possible armed

confrontation over the long term59. In this regard, the Philippines should pursue a

unified, multilateral approach through ASEAN to resolve the West Philippine Sea (South

China Sea) dispute60. To this end, the Philippines must convince ASEAN that it is not

merely using the forum to strengthen its own position, as it has done in the past. The

Philippines should continue to pursue with ASEAN and China a binding Code of

Conduct on the South China Sea, while using ASEAN as a standing, continuous forum

for dialogue. To address the historical inefficiency and the roadblocks in the multilateral

ASEAN approach, the Philippines should hold meetings with Vietnam, Malaysia, and

Brunei to aid ASEAN efforts to resolve the dispute. If the main ASEAN claimants in the

dispute formulate a coherent, unified platform for negotiation, it will move the non-

claimant ASEAN members to agree61. If this cohesion and cooperation through comity

will be achieved by the Philippines with ASEAN, the arbitrational case before the

59 Jane Perlez, Dispute between the Philippines and China over Islands becomes more heated (New York Times, May 10, 2012)

60 Xu, op.cit. p.9.61 Nicole Del Rosario, A strategic policy proposal for the West Philippine Sea territorial dispute, (The Manila Times, May 4, 2014).

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Hague, should it rule in favor of the Philippines, will force the People’s Republic of

China to recognize and respect the Philippine maritime rights in the region.

4.3.A: HOW DO THESE SOLUTION CONFORM WITH THE PHILIPPINE FOREIGN

POLICY?

The proposed solution which is regional cohesion and cooperation through a

multilateral approach with ASEAN, and the promotion of the United Nations Convention

on the law of the Sea to resolve the West Philippine Sea (South China Sea) dispute

upholds all the three pillars of the Philippine Foreign Policy. As stated in section 4.3 of

the same chapter, the three pillars are 1) preservation and enhancement of national

security, 2) promotion and attainment of economic security 3) protection of the rights

and promotion of the welfare and interest of Filipinos overseas 62. From the study

conducted by the researchers, regional cohesion and cooperation brings closer ties

between parties as comity among them fosters. Through fostering this comity among

member States of ASEAN and China, regional dialogues are created in which issues

concerning national security and other violations committed against a member State

with regards to territorial encroachments can be raised for a possible resolution of

62 Pillars of Philippine Foreign Policy, Retrieved from:http://www.dfa.gov.ph/index.php/component/content/category/91-philippine-foreign-policy.

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conflict63. Of course, the recognition that the United Nations Convention of the Law of

the Sea governs the West Philippine Sea (South China Sea) is material to the

settlement of issues concerning national security. Otherwise, cooperation and cohesion

by ASEAN will found no legal basis. On the other hand, these proposed solution will

bolster economic ties between the Philippines, the People’s Republic of China, and

other member states of ASEAN as regional development in the West Philippine Sea

(South China Sea) is a possibility because should these solutions come into fruition, the

roadblocks like conflicting and overlapping maritime claims will be put in the back-

burner, and the rights of each claimant States will be established in accordance with the

provisions of the 1982 United Nations Convention on the Law of the Sea. Furthermore,

these solutions will provide safeguards on the protection of Filipinos overseas because

backlash by the People’s Republic of China against OFW’s in their country might

undermine the settled dispute in the region which will be prejudicial to the interests of all

concerned States.

4.3.B: HOW CAN MULTILATERAL SUPPORT FROM NON-CLAIMANT STATES

HELP IN THE SETTLEMENT OF TERRITORIAL CONFLICT WITH CHINA?

63 Del Rosario,op. cit.(should it be op cit or supra? It was cited in no. 61)

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From the foregoing discussion posted in 4.3.A of the same Chapter, it will be

noted that it is very beneficial for the Philippines if a multilateral approach on the issue is

tackled. Traditional diplomacy involves hegemony of stronger, militarily equipped

countries in settling disputes thus depriving smaller countries of rights that has been

traditionally vested unto them64. By doing a bilateral negotiation dealings with the

People’s Republic of China will be prejudicial to the Philippine interests as the balance

of negotiating terms is heavily tilted in favor of a more powerful China65. Thus it would

be best for the Philippines to pursue an agreement together with ASEAN, backed up by

the provisions of the 1982 United Nations Convention of the Law of the Sea, in order to

balance the differences of economic and military might possessed by China. Support

from Laos, Thailand, Cambodia and Myanmar, non-claimant member states of

ASEAN66, will unite ASEAN as one thus balancing the grounds between the Philippines

and China.

64 Aviel. ocp.cit. p.15.65 Yu, op.cit. p.12.66 Veasna Var, Cambodia looks for a middle ground in the South China Sea, ( East Asia Forum June 20, 2015).

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