TOPSHOT – This photo taken on February 15, 2024 shows Filipino fishermen boarding a wooden boat … [+]
A Chinese Coast Guard ship patrolled Scarborough Shoal today, marking at least the fourth time the People’s Republic of China has intruded into the Philippines’ exclusive economic zone since the Philippines announced two new laws. On November 8, the Philippines passed the Archipelagic Sea Lanes Act and the Maritime Zones Act to consolidate its maritime claims. China responded with military action and legal attacks. Both sides are engaged in legal work, which is using the law to achieve strategic or military goals. In the process, they are legally preparing the battlefield for future conflicts in the South China Sea.
Duel between the Philippines and China
The Philippine Maritime Zones Act aims to align Philippine domestic law with the United Nations Convention on the Law of the Sea and the 2016 South China Sea Arbitration Case. The arbitral award invalidated China’s claims to sovereignty over many features within the Philippines’ exclusive economic zone, including Scarborough Shoal. The bill asserts and strengthens the Philippines’ maritime boundaries and formalizes the term “West Philippine Sea,” the country’s preferred term for the portion of the South China Sea that falls within the Philippines’ exclusive economic zone. The bill also recognizes the Kalayaan Islands as Philippine territory, including Paguesa Island and Sabina Shoals, both of which have been the site of recent Chinese military operations. On November 28, at least 60 Chinese maritime militia vessels swarmed Baasa Island.
In accordance with the United Nations Convention on the Law of the Sea, the Archipelagic Sea Lanes Law designates three standard routes for foreign navigation in the internal waters and archipelago waters of the Philippines. Before these routes were established, foreign ships could determine their own routes, leading to tensions with Philippine authorities. The bill also makes foreign shipping and aviation operators liable for losses caused by non-compliance. The bill would allow the Philippines to better enforce its laws against Chinese warships wandering around the archipelago without permission. The Philippines will submit these routes to the International Maritime Organization for approval.
These laws clarify the Philippines’ maritime claims. They also insulate these claims from future political strategies. The Duterte administration, for example, hedged on enforcement of the South China Sea arbitration case during a period of warming relations with China and allowed Chinese vessels to linger in archipelago waters with little repercussions. Future governments will be forced to enforce newly clarified Philippine domestic laws.
The People’s Republic of China’s Illegal “Legal” Response
In response, China quickly launched coast guard patrols around Scarborough Shoal. On November 10, China announced its own baselines around Scarborough Shoal, classified the surrounding waters as “internal waters”, and clarified its territorial waters and exclusive economic zone claims. China says it has been drawing the baselines for years but released them in response to the Philippines’ new maritime law. China’s coast guard announced “targeted enforcement measures” to expel Philippine ships and accused the Philippines of trying to consolidate an “illegal” arbitration award. On November 28, the People’s Republic of China held a combat readiness exercise near Scarborough Shoal.
At the same time, China also announced the official geographical names of 64 features in the South China Sea. It also released a new map of Sansha city, the administrative base for its South China Sea claims. The new map delineates the Xisha and Nansha districts, which were established in 2020 but never mapped, and assigns administrative divisions. China has also tried to challenge Philippine laws in the media. Articles in the Global Times and South China Morning Post worry that these laws will affect freedom of navigation and trade, particularly by reducing the number of sea routes currently in use.
Consistent with other uses of the law, China is using domestic law to bolster its unlawful maritime claims. It uses the language of the United Nations Convention on the Law of the Sea to conceal the appearance of compliance with international law. However, its use of straight baselines and assertions of underwater features actually contradict the United Nations Convention on the Law of the Sea. The United Nations Convention on the Law of the Sea sets out rules for baselines around coral reefs, but China does not comply. The United Nations Convention on the Law of the Sea limits baseline claims for land features above water at high tide. The Philippines-China arbitration award in 2016 classified Scarborough Shoal as a rocky reef and therefore has territorial waters but does not enjoy an exclusive economic zone or continental shelf.
Interestingly, China’s baseline claims around Scarborough Shoal are more conservative than many expected. While the new baseline map most specifically depicts its claims, China has previously made new “offshore archipelago” claims to the Zhongsha Islands, which include the underwater Macclesfield Shoal. This larger claim violates the United Nations Convention on the Law of the Sea and the 2016 arbitration award. It’s unclear whether the new map shows China abandoning its broader claims or simply being strategically cautious.
Philippines-China conflict or ASEAN Code of Conduct?
The Philippines and China appear poised for future maritime confrontation over Scarborough Shoal, which has been a flashpoint in relations between the two countries since at least 2012. , including the long-awaited ASEAN-led South China Sea code of conduct negotiations to resume in 2025. . Vietnam is also expected to protest.
Despite these disputes, Philippine leadership on the United Nations Convention on the Law of the Sea has prompted its neighbors to adopt a unified stance on South China Sea claims. When the Philippines submitted its expanded continental shelf claim to the United Nations this year, Vietnam quickly announced its interest in negotiating overlapping claims with the Philippines. Vietnam, Indonesia and Malaysia rely on the United Nations Convention on the Law of the Sea to resolve their maritime disputes, and Indonesia and Malaysia also cited the 2016 arbitration award in their submissions to the United Nations. The United States and the Philippines must continue to support the United Nations Convention on the Law of the Sea as the basis for resolving maritime claims. Only by maintaining a unified legal front against the People’s Republic of China can claimant states protect international law from attempts by the People’s Republic of China to rewrite it.
