korean journal of international

and comparative law 6 (2018) 47–65

brill.com/kjic

The South China Sea Arbitral Award amidst

Shifting Philippine Foreign Policy

Lowell Bautista
University of Wollongong
lowell@uow.edu.au

Abstract

The South China Sea Arbitral Tribunal award was an overwhelming legal and moral
victory for the Philippines. The arbitral tribunal categorically declared that China’s
nine-dash line claim is incompatible with the un Convention on the Law of the Sea.
However, China’s defiance of the ruling and refusal to honor and implement the
award pose a serious challenge to Manila’s victory. In addition, the astonishing shift in
Philippine foreign policy direction, alongside the change in government, flouts the ar-
bitral award and undermines previous State policies assertive of Philippine maritime
and territorial claims in the South China Sea. The current direction of Philippine-China
relations under Philippine President Rodrigo Duterte has demonstrated positive signs
of improvement compared with acrimonious bilateral relations pursued by the previ-
ous Aquino administration. The arbitral award has largely been set aside in the govern-
ment’s effort to restore amicable economic and diplomatic relations with China. This
paper examines the South China Sea arbitral award amidst shifting Philippine foreign
policy under the administration of President Rodrigo Duterte.

Keywords

Philippines – South China Sea – arbitral award – West Philippine Sea – law of the sea –
foreign policy

*  Senior Lecturer, School of Law, and Staff Member, Australian National Centre for Ocean
Resources and Security (ancors), Faculty of Law, Humanities and the Arts, University of
Wollongong, Australia.

© koninklijke brill nv, leiden, 2018 | doi 10.1163/22134484-12340097

48 Bautista

I Introduction

This article examines the South China Sea arbitral award amidst shifting
Philippine foreign policy under the administration of President Rodrigo
Duterte. The final award of the Arbitral Tribunal in the case filed by the
Philippines against China over the South China Sea (scs) was an overwhelm-
ing legal and moral victory for the Philippines.1 The arbitral tribunal categori-
cally declared that China’s nine-dash line claim is incompatible with the un
Convention on the Law of the Sea (unclos), which supersedes and nullifies
any ‘historic rights’ that may have existed prior to the Convention.2 However,
China’s defiance of the ruling and refusal to honor and implement the award
pose a serious challenge to Manila’s victory.3 In addition, the astonishing
shift in foreign policy direction in Manila, alongside the change in govern-
ment, sets aside the award in favor of a more amicable bilateral relationship
with China and undermines previous State policies which assert Philippine
maritime and territorial claims in the South China Sea.4 There were initially
high expectations, riding on a global tide of favorable public opinion after the
Hague ruling, that the Philippines would call on other countries to help en-
force the verdict, demand reparations over the damage done to the marine

1  p ca Case No. 2013-19, In the Matter of the South China Sea Arbitration before an Arbitral
Tribunal Constituted Under Annex vii to the 1982 United Nations Convention on the Law of
the Sea between the Republic of the Philippines and the People’s Republic of China, Award,
12 July 2016. Hereinafter, The South China Sea Arbitration Award of 12 July 2016.
2  The South China Sea Arbitration Award of 12 July 2016, paragraphs 261, 278, and 1203 (B)(2). See
also, paragraphs 232, 252, 246, 262, and 263. United Nations Convention on the Law of the Sea,
opened for signature 10 December 1982, 1833 unts 3 (entered into force 16 November 1994).
Hereinafter referred to as unclos.
3  Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award
of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the
Request of the Republic of the Philippines, 12 July 2016; Statement of the Ministry of Foreign
Affairs of the People’s Republic of China on the Award on Jurisdiction and Admissibility
of the South China Sea Arbitration by the Arbitral Tribunal Established at the Request of
the Republic of the Philippines, 30 October 2015; Position Paper of the Government of the
People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration
Initiated by the Republic of the Philippines, 7 December 2014. See also, The South China Sea
Arbitration Award of 12 July 2016, paragraphs 166, 1180.
4  For instance, Presidential Decree No. 1596, Declaring Certain Area Part of the Philippine
Territory and Providing for their Government and Administration, 11 June 1978; Republic Act
No. 9522, An Act to Amend Certain Provisions of Republic Act No. 3046, As Amended By
Republic Act No. 5446, To Define the Archipelagic Baseline of the Philippines and for other
Purposes, 10 March 2009; Administrative Order No. 29, s. 2012, Naming the West Philippine Sea
of the Republic of the Philippines, and for other Purposes, 5 September 2012, among others.

korean journal of international and comparative law 6 (2018) 47–65

The South China Sea Arbitral Award 49

environment, negotiate a fisheries access agreement at Scarborough Shoal,5

conduct navigational operations, and peacefully contest China’s hegemonic
ambitions through regional support and diplomatic pressure. These options
now endure only in the realm of wistful thinking. The strategic imperatives
behind Manila’s muted jubilation in response to the ruling are justifiable, but
the short-sighted, amnesic foreign policy reaction to accommodate China is
shift in strategy brought about by the Duterte administration.
The leadership change in Manila after the May 2016 Philippine presiden-
tial elections certainly had significant impact on the country’s foreign policy
towards China over the ongoing dispute in the South China Sea. Philippine
President Rodrigo Duterte ushers a new chapter in Philippine-China foreign
relations – a period of uncertainty underpinned by a foreign policy lacking in
continuity, coherence and direction. In an unexpected historical twist, previ-
ously acrimonious bilateral relations with China have demonstrated positive
signs of improvement. In sharp contrast, Duterte’s relentless and fiercely criti-
cal rhetoric against the United States has placed the country’s robust and long-
standing security and defence relations with America in question. This turn of
events heralds uncertain times for the Philippines, as well as the wider region
of Southeast Asia.

II A Legal and Moral Victory for the Philippines

On 12 July 2016, the arbitral tribunal constituted under Annex vii of unclos
issued its final award in the dispute between the Philippines and China over
maritime claims in the South China Sea. It was widely acclaimed as the tri-
umph of international law, the great equaliser.6 It was trumpeted as the para-
digmatic illustration that small, weak States can challenge powerful nations
standing on equal footing with them buttressed only by the enduring principle
that law and right will prevail over power and might.7

5  In November 2016, President Duterte announced his plan to declare a marine sanctuary and
no-fishing zone at a lagoon within Scarborough Shoal. Mike Ives, “Philippines to Declare
Marine Sanctuary in South China Sea”, available at http://www.nytimes.com/2016/11/22/
world/asia/philippines-rodrigo-duterte-scarborough-shoal-china.html.
6  Gilberto C. Teodoro Jr., “The Philippines’ Triumph: Right Over Might”, The Diplomat, 19 July 2016,
available at http://thediplomat.com/2016/07/the-philippines-triumph-right-over-might/.
7  Justin D. Nankivell, “The Role and Use of International Law in the South China Sea Disputes”,
Maritime Awareness Project, 14 April 2016, available at http://maritimeawarenessproject
.org/2016/04/14/the-role-and-use-of-international-law-in-the-south-china-sea-disputes/.

korean journal of international and comparative law 6 (2018) 47–65

50 Bautista

The Arbitral Tribunal, registered under the Hague-based Permanent Court

of Arbitration, after more than three years since the case was filed, handed
down its historic decision on the decades-old maritime dispute over the South
China Sea, which Manila refers to as the “West Philippine Sea”.8 The Arbitral
Tribunal unanimously decided in favor of the Philippines.9 In the 500-page
final award, the Tribunal applied the rules of international law, principally
the unclos, universally regarded as the constitution of the oceans, as well as
other rules of international law not incompatible with the Convention.10
The unanimous verdict of the arbitral tribunal is clear: China’s so-called in-
disputable claim over the scs anchored on her controversial nine-dashed line
claim is incompatible with unclos.11 It was a result which was, by and large,
predictable and thus, to an extent old news.12 Strictly speaking, the award is only
legally binding between the Philippines and China.13 However, the landmark
verdict will have significant, lasting and far-reaching implications affecting the
legal rights of all the claimant States because of the nature of the award as a
subsidiary means for the determination of rules of law under Article 38(l)(d)
of the icj Statute. It will also strongly impact the management and resolu-
tion of the conflicting claims in the scs since the claimant States may use the
award as a legal and political leverage to induce conduct amongst the parties
which are more in line with international law, especially on the part of China.14
The tumultuous award is not the end of the road, but perhaps heralds just the
beginning of rough and treacherous paths ahead.

8  Administrative Order No. 29, s. 2012, Naming the West Philippine Sea of the Republic of
the Philippines, and for other Purposes, 5 September 2012, available at http://www.gov
.ph/2012/09/05/administrative-order-no-29-s-2012/.
9  The South China Sea Arbitration Award of 12 July 2016, paragraphs 1202, 1203.
10  Article 293(1), unclos. The Tribunal concluded that that it is “beyond dispute that both
Parties are obliged to comply with the Convention, including its provisions regarding the
resolution of disputes, and to respect the rights and freedoms of other States under the
Convention.” The South China Sea Arbitration Award of 12 July 2016, paragraph 1201.
11  The South China Sea Arbitration Award of 12 July 2016, paragraphs 261, 278, and 1203 (B)(2).
See also, paragraphs 232, 252, 246, 262, and 263.
12  James Kraska, “Forecasting the South China Sea Arbitration Merits Award”, Maritime
Awareness Project, 27 April 2016, available at http://maritimeawarenessproject.org/
2016/04/27/forecasting-the-south-china-sea-arbitration-merits-award/.
13  Article 296(2), unclos.
14  The South China Sea Arbitration Award of 12 July 2016, paragraphs 157, 634–641, 1202(D).

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The South China Sea Arbitral Award 51

1 The Arbitral Proceedings

On 22 January 2013, the Philippines instituted arbitral proceedings against
China under Annex vii of unclos in respect of their maritime jurisdictional
dispute in the scs.15 The arbitration is the first international litigation initiated
by a claimant State in the scs. From its commencement, it was clear that this
bold move was a game changer. The proceedings have altered the terrain of
strategies available to the claimant States, which had always eschewed legal
options. Beijing never concealed its displeasure over the audacious move,
strongly arguing against the jurisdiction of the tribunal, refusing to partici-
pate in the proceedings and making its position clear that it will not honor the
ruling.16 In accordance with the provisions of unclos, the arbitration pro-
ceeded in China’s absence.17 In keeping with settled international jurispru-
dence, whilst China had chosen not to appear in the proceedings, it remains a
party to the case, and is bound by the eventual judgment.18
The Philippine arbitration case against China over the South China Sea asked
the Tribunal three fundamental questions. First, whether “the Parties’ respec-
tive rights and obligations in regard to the waters, seabed and maritime fea-
tures of the of the South China Sea are governed by unclos, and that China’s
claims based on its “nine-dash line” are inconsistent with the Convention and
therefore invalid.”19 Second, whether “under Article 121 of unclos, certain
of the maritime features claimed by both China and the Philippines are is-
lands, low tide elevations or submerged banks, and whether they are capable
of generating entitlement to maritime zones greater than 12M.”20 And lastly,
whether the Philippines should be allowed “to exercise and enjoy the rights

15  Republic of the Philippines, Department Of Foreign Affairs, Notification and Statement
of Claim, Manila, 22 January 2013. [Hereinafter, Notification and Statement of Claim].
16  Note Verbale from the Embassy of the People’s Republic of China in Manila to the
Department of Foreign Affairs of the Republic of the Philippines, No. (13) PG-039, 19
February 2013; Note Verbale from the Embassy of the People’s Republic of China in The
Hague to the Permanent Court of Arbitration, No. (013)-117, 29 July 2013.
17  Article 9, Annex vii, unclos; Article 25, Rules of Procedure, South China Sea Arbitral
Tribunal.
18  Arctic Sunrise Case (Kingdom of the Netherlands v. Russian Federation), Provisional
Measures, Order of 22 November 2013, itlos Reports 2013, para. 48, 52; Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, i.c.j. Reports 1986, p. 24, para. 28.
19  Notification and Statement of Claim, paragraph 6. The South China Sea Arbitration Award
of 12 July 2016, paragraph 28.
20  Notification and Statement of Claim, paragraph 6. The South China Sea Arbitration Award
of 12 July 2016, paragraph 28.

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52 Bautista

within and beyond its exclusive economic zone and continental shelf that are
established in the Convention.”21 The Philippines at all stages of the arbitration
never asked the Tribunal to rule on the territorial aspects of its disputes with
China or to delimit any maritime boundaries.22 The issues before the tribunal
related exclusively to the interpretation or application of unclos, in respect
of matters over which China has not availed itself of the optional exceptions
provided in Article 298 of the Convention.23
The right of the Philippines to institute compulsory arbitration was incon-
trovertible.24 The principal basis for the arbitration was unclos, of which
both the Philippines and China are States parties, the Philippines having rat-
ified it on 8 May 1984, and China on 7 June 1996.25 The refusal of China to
participate in the proceedings did not impair the arbitration.26 The unclos
Annex vii arbitral procedure was so designed that even the failure of a party
to take the requisite action will not frustrate the arbitral proceedings.27 The
non-participation of China in both the written and oral proceedings of the
Arbitral Tribunal did not have any bearing on the process of the proceedings
and the validity of the arbitral award.28 The Arbitral Tribunal only needed
to satisfy itself that it had jurisdiction and that the claim of the Philippines
was well founded in fact and law.29 There was no duty for China to appear
before the Tribunal. However, it did have the duty to comply with the decision
of the Tribunal,30 provided it had jurisdiction.31 Its non-appearance did not af-
fect the validity of the judgment. It is final and there is no provision for appeal.32

21  Notification and Statement of Claim, paragraph 6. The South China Sea Arbitration Award
of 12 July 2016, paragraph 28.
22  Notification and Statement of Claim, paragraph 7; Award on Jurisdiction and Admissibility,
paragraph 8; The South China Sea Arbitration Award of 12 July 2016, paragraphs 5, 6, 28.
23  The South China Sea Arbitration Award of 12 July 2016, paragraphs 1202(G), 1203.
24  Article 286, unclos.
25  Articles 286 and 287, and Article 1, Annex vii, unclos.
26  Article 9, Annex vii, unclos.
27  Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, i.c.j. Reports 1986, p. 24, para. 28; Arctic Sunrise Case
(Kingdom of the Netherlands v. Russian Federation), Provisional Measures, Order of 22
November 2013, itlos Reports 2013, para. 48, 52.
28  Article 9, Annex vii, unclos.
29  Article 9, Annex vii, unclos.
30  Article 11, Annex vii, unclos.
31  Section 2, Part xv, unclos.
32  Article 11, Annex vii, unclos, “unless the parties to the dispute have agreed in advance
to an appellate procedure.” Article 296, unclos. The South China Sea Arbitration Award
of 12 July 2016, paragraph 1172.

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The South China Sea Arbitral Award 53

The arbitral tribunal decided that the proceedings be bifurcated in order

to resolve the issue of jurisdiction before proceeding on the merits of the
Philippine claim.33 On 29 October 2015, the arbitral tribunal issued an award
on jurisdiction and admissibility, largely ruling in favor of the Philippines.34
The unanimous award found that the Tribunal was properly constituted in ac-
cordance with Annex vii of unclos and that China’s non-appearance does
not deprive the Tribunal of jurisdiction.35
The award on jurisdiction clarified that the dispute does not concern sov-
ereignty over the features within the South China Sea or delimitation of mari-
time boundaries, since the Philippines was conscious that the Convention is
not concerned with territorial disputes and aware of China’s 2006 Declaration
in accordance with unclos to exclude maritime boundary delimitations from
its compulsory dispute settlement procedures,36 but “unequivocally a dis-
pute concerning the interpretation and application of the Convention.”37 The
Tribunal also ruled that the arbitration case filed by the Philippines did not
constitute an abuse of process,38 and that there is no indispensable third party
whose absence deprives the Tribunal of jurisdiction.39 The Tribunal further
ruled that the 2002 China-asean Declaration on the Conduct of the Parties in
the South China Sea, being a political agreement which was not intended to
be legally binding, along with other agreements and joint statements by China
and the Philippines, do not preclude recourse to the compulsory dispute set-
tlement procedures under unclos.40 In respect of jurisdiction, the Tribunal
ruled that it has jurisdiction to consider 7 out of the 14 submissions of the
Philippines,41 except those that involve consideration of issues that do not pos-
sess an exclusively preliminary character, which the Tribunal reserves to the

33  Procedural Order No. 4, 21 April 2014, page 6, para 1(1.3).

34  Permanent Court of Arbitration (pca), pca Case No. 2013-19, In the matter of an arbitra-
tion before an arbitral tribunal constituted under Annex vii to the 1982 United Nations
Convention on the Law of the Sea between the Republic of the Philippines and the
People’s Republic of China, Award on Jurisdiction and Admissibility, 29 October 2015
(Award on Jurisdiction and Admissibility).
35  Award on Jurisdiction and Admissibility, paragraph 413(a)(b), paragraphs 112–123.
36  Award on Jurisdiction and Admissibility, paragraph 8, 26.
37  Award on Jurisdiction and Admissibility, paragraphs 152–157, 168; The South China Sea
Arbitration Award of 12 July 2016, paragraph 283.
38  Award on Jurisdiction and Admissibility, paragraph 413(c), paragraphs 124–129.
39  Award on Jurisdiction and Admissibility, paragraph 413(d), paragraphs 179–188.
40  Award on Jurisdiction and Admissibility, paragraph 413(e), paragraphs 189–353.
41  Philippine Submissions No. 3, 4, 6, 7, 10, 11 and 13. Award on Jurisdiction and Admissibility,
paragraph 413(g), paragraphs 398–412.

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54 Bautista

merits phase.42 The Tribunal concluded hearings on the merits in November

2015.

2 The Final Award

The final arbitral award of 12 July 2016 was not surprising because it was in
Manila’s favor. Many were expecting a favorable ruling but definitely not the
magnitude and scale of victory that the arbitral tribunal delivered.43 The award
was a clear, resounding and overwhelming legal victory for the Philippines. It is
also final and binding, despite Beijing’s staunch position to ignore the award,
claiming it is null and void, and initiated out of bad faith.44
The arbitral tribunal categorically declared that China’s nine-dash line
claim is incompatible with unclos,45 and China’s historic rights over living
and non-living resources in the scs find no basis in international law and in-
compatible with unclos.46 The tribunal clarified that China does not possess
historic rights over the resources within the ‘nine-dash line’ in areas within the
Philippine eez or continental shelf;47 and that any historic rights that China
may have over these resources is incompatible with unclos and have been
extinguished by China’s accession to unclos and its entry into force.48 The
tribunal clarified that any claim by China to historic rights to the living and
non-living resources within the ‘nine-dash line’ beyond the limits of China’s
maritime zones as provided for under unclos, has been superseded by the
entry into force of the Convention.49 In the Tribunal’s view, China’s ratifica-
tion of unclos did not extinguish its historic rights in the waters of the South
China Sea but rather constituted a relinquishment of high seas freedoms it
previously utilised over these sea areas which have been subsumed under the

42  Philippine Submissions No. 1, 2, 5, 8, 9, 12 and 14. Award on Jurisdiction and Admissibility,
paragraph 413(h), paragraphs 398–412.
43  Feng Zhang, “Breathtaking but counterproductive: the South China Sea arbitration
award”, ASPI The Strategist, 14 July 2016.
44  Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award
of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the
Request of the Republic of the Philippines, 7 July 2016, paragraphs 1 and 2.
45  The South China Sea Arbitration Award of 12 July 2016, paragraphs 261, 278, and 1203 (B)(2).
See also, paragraphs 232, 252, 246, 262, and 263. United Nations Convention on the Law
of the Sea, opened for signature 10 December 1982, 1833 unts 3 (entered into force 16
November 1994). Hereinafter referred to as unclos.
46  The South China Sea Arbitration Award of 12 July 2016, paragraphs 239, 243, 278.
47  The South China Sea Arbitration Award of 12 July 2016, paragraphs 246, 247.
48  The South China Sea Arbitration Award of 12 July 2016, paragraphs 257, 261, 262.
49  The South China Sea Arbitration Award of 12 July 2016, paragraph 263.

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The South China Sea Arbitral Award 55

regime of the eez under the Convention, for which it gained a greater degree
of control over maritime zones adjacent to its coasts and islands.50
The tribunal, mindful of the limits of its jurisdiction, carefully and explicitly
avoided the issue of sovereignty,51 declared that none of the high tide features
in dispute are “islands” being incapable of sustaining human habitation or
economic life of their own, but merely “rocks” for purposes of Article 121(3) of
unclos, which do not generate entitlements to an exclusive economic zone
or continental shelf.52 The Tribunal, after a detailed examination, concluded
that the following features in their natural condition are high-tide features:
Scarborough Shoal, Cuarteron Reef, Fiery Cross Reef, Johnson Reef, McKennan
Reef, and Gaven Reef (North);53 and the following features are low-tide ele-
vations: Hughes Reef, Gaven Reef (South), Subi Reef, Mischief Reef, Second
Thomas Shoal, and as such, generate no entitlement to maritime zones of
their own.54 The Tribunal is of the opinion, applying its measured consid-
erations in the application of Article 121(3) of unclos,55 that the follow-
ing features are considered “rocks” for purposes of Article 121(3) of unclos:
Scarborough Shoal,56 Johnson Reef,57 Cuarteron Reef,58 Fiery Cross Reef,59
Gaven Reef (North),60 and McKennan Reef.61 The Tribunal concluded that
Itu Aba, Thitu, West York, Spratly Island, South-West Cay, and North-East Cay
are not capable of sustaining human habitation or economic life of their own
within the meaning of Article 121(3) of unclos, and therefore such features
are not entitled to have an exclusive economic zone or continental shelf.62
In respect of Mischief Reef and Thomas Shoal, the Tribunal decided that
they form part of the eez and continental shelf of the Philippines, both being
located within 200 nautical miles of the coast of the Philippine island of
Palawan in an area which does not overlap with any entitlements generated by

50  
The South China Sea Arbitration Award of 12 July 2016, paragraph 271.
51  
Award on Jurisdiction and Admissibility, paragraphs 8, 26, 401, 403. The South China Sea
Arbitration Award of 12 July 2016, paragraphs 283, 392.
52  
The South China Sea Arbitration Award of 12 July 2016, paragraph 646.
53  
The South China Sea Arbitration Award of 12 July 2016, paragraph 382.
54  
The South China Sea Arbitration Award of 12 July 2016, paragraph 383, 646.
55  
The South China Sea Arbitration Award of 12 July 2016, paragraphs 540–551.
56  
The South China Sea Arbitration Award of 12 July 2016, paragraphs 554–556, 643.
57  
The South China Sea Arbitration Award of 12 July 2016, paragraphs 557–559, 644.
58  
The South China Sea Arbitration Award of 12 July 2016, paragraphs 560–562, 644.
59  
The South China Sea Arbitration Award of 12 July 2016, paragraphs 563–565, 644.
60  
The South China Sea Arbitration Award of 12 July 2016, paragraphs 566–568, 645.
61  
The South China Sea Arbitration Award of 12 July 2016, paragraphs 569–570, 645.
62  
The South China Sea Arbitration Award of 12 July 2016, paragraphs 622, 625, 626.

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56 Bautista

any maritime feature claimed by China.63 The tribunal also declared China’s
reclamation activities64 have interfered with the rights of the Philippines
under unclos,65 aggravated the dispute and undermined the integrity of
the proceedings,66 irreparably damaged the fragile marine environment
of the scs,67 and are clearly in violation of China’s obligations under unclos.68
The Tribunal also concluded that the conduct of Chinese law enforcement ves-
sels in the vicinity of Scarborough Shoal, created serious risk of collision and
danger to Philippine vessels and personnel and ruled that China to have vio-
lated relevant provisions of Convention on the International Regulations for
Preventing Collisions at Sea (colregs) and unclos.69

3 The Philippine Response to the Arbitral Award

The arbitral award was received with subdued pomp uncharacteristic of the
Philippines. After the award was issued, the reaction from Foreign Affairs
Secretary Perfecto Yasay was so sullen that casual observers unaware of the
positive ruling might have formed the conclusion that the Philippines had ac-
tually lost the case. Yasay’s terse official statement merely called for “restraint
and sobriety”, echoing President Duterte’s “no-taunt, no-flaunt” policy.70 Both
men advocated for carefully calibrated actions so as to cushion the blow of a
positive ruling against China. This was in sharp contrast to the Aquino admin-
istration’s more bellicose stance towards Beijing.
The tight-lipped, almost cryptic response from Duterte, who is known for
his animated language and unpredictable demeanor, was atypical of him.
China’s optimism in the Duterte administration indicates that the concilia-
tory approach of the new administration has not gone unnoticed in Beijing.71

63  The South China Sea Arbitration Award of 12 July 2016, paragraph 647.
64  The South China Sea Arbitration Award of 12 July 2016, paragraphs 852–890.
65  The South China Sea Arbitration Award of 12 July 2016, paragraphs 1038, 1043. Articles 60, 80,
unclos.
66  The South China Sea Arbitration Award of 12 July 2016, paragraph 1177–1179, 1181.
67  The South China Sea Arbitration Award of 12 July 2016, paragraph 983.
68  The South China Sea Arbitration Award of 12 July 2016, paragraphs 983, 992, 993. Articles
192, 194(1), 194(5), unclos. See also, Articles 197, 123, 206, unclos.
69  The South China Sea Arbitration Award of 12 July 2016, paragraph 1109; Rules 2, 6, 7, 8, 15,
and 16, colregs and Article 94 unclos. Convention on the International Regulations for
Preventing Collisions at Sea, 20 October 1972, 1050 unts 1976.
70  Paterno Esmaquel ii, “ph calls for ‘restraint, sobriety’ amid favorable ruling on sea row”,
Rappler, 12 July 2016, available at http://www.rappler.com/nation/139499-ph-restraint-
sobriety-ruling-south-china-sea.
71  Lyle J. Goldstein, “Why China Is Ready for Rodrigo Duterte”, The National Interest, 29 June 2016,
available at http://nationalinterest.org/feature/why-china-ready-rodrigo-duterte-16782.

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The South China Sea Arbitral Award 57

President Duterte has since avoided extended discussion of the legal victory,
and has yet to reveal a well thought-out strategy that the country can employ
towards Beijing. Yasay, for his part, appears less bullish as well, and in recent
asean forums was quoted as not pushing strongly for inclusion of the award
in the organization’s official statements, a position that earned him heavy criti-
cism from seasoned Philippine diplomats.72 The only tangible directive from
Malacañang Palace was the idea of sending former Philippine President Fidel
Ramos as special envoy to China, with instructions and goals not quite made
clear to the public, in order to resume talks with Beijing.73 In this capacity,
Ramos was able to visit Hong Kong in August 2016 in a meeting with Chinese
officials. However, following his scathing assessment of the Duterte adminis-
tration, his future trips have been cancelled.74 The former Philippine president
has resigned as special envoy to China after publishing another blistering at-
tack on Duterte.75 Manila has also appointed a new ambassador to China, a
sign of improved bilateral relations between the two countries.

4 The Reaction from Beijing

The reaction from Beijing, although sternly worded, was not exactly jingoistic.
In a statement issued by the Chinese Ministry of Foreign Affairs, China consid-
ers “the award is null and void and has no binding force” and that “China nei-
ther accepts nor recognizes it.”76 These statements are in keeping with China’s
consistent position not to participate in the arbitration proceedings and rejec-
tion of the jurisdiction of the Tribunal.77

72  Estrella Torres, “Cuisia chides Yasay for failing to get asean behind sea ruling”, Philippine
Daily Inquirer, 29 July 2016, available at http://globalnation.inquirer.net/142125/
cuisia-chides-yasay-for-failing-to-get-asean-behind-sea-ruling.
73  Allan Nawal, “Ramos accepts Duterte offer to become special envoy to China”,
Philippine Daily Inquirer, 23 July 2016, available at http://globalnation.inquirer.net/
141772/ramos-accepts-duterte-offer-to-become-special-envoy-to-china.
74  Manuel Mogato, “Trip to China by Philippine special envoy Ramos cancelled”, ABS
CBN News, 27 September 2016, available at http://news.abs-cbn.com/news/09/27/16/
trip-to-china-by-philippine-special-envoy-ramos-cancelled.
75  Amanda Hodge, “Dirty of Duterte, Fidel Ramos resigns as special China envoy,” The
Australian, 2 November 2016, available at http://www.theaustralian.com.au/news/world/
dirty-of-duterte-fidel-ramos-resigns-as-special-china-envoy/news-story/2ad3ae834a82be
e125786497e8e5d7e2.
76  Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award
of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the
Request of the Republic of the Philippines, 12 July 2016.
77  The South China Sea Arbitration Award of 12 July 2016, paragraphs 61, 103, 166, 654, 1180.

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58 Bautista

However, there have been numerous disconcerting allegations made public-

ly by Chinese officials, diplomats and scholars that cast aspersions against the
integrity and impartiality of the tribunal judges alleging that they have been il-
legally influenced and even bribed in order to rule against Beijing;78 or that the
composition of the tribunal was manipulated by itlos President Shunji Yanai,
who is from Japan, a country with longstanding territorial issues with China.79
These allegations need not be dignified unless China formally repudiates the
Award on the basis of these allegations in a proper forum. These criticisms,
however, are more in the realm of political rhetoric and posturing than on an
understanding of the relevant unclos provisions and rules of procedure, and
of general international law. It is rather unfortunate that this is an award on the
merits yet the challenges posed against it have been on tangential and inap-
propriate issues not germane to the award. However, China should be allowed
to speak and even to criticise the tribunal, as it is in a free and democratic
public space. The myriad of voices within China should also not be silenced.
This is an opportune time for China to clarify its legal position in respect
of its claim over the South China Sea. The tribunal has declared that the nine-
dash line is not compatible with unclos. This, China cannot ignore. It is al-
ways much easier to discredit a case than to win a case. Even patriotic ideas
that have fuelled nationalistic sentiments of past and current generations have
a natural shelf life. China can no longer claim that it possesses indisputable
sovereignty over the scs, which directly contravenes the ruling of the tribu-
nal. Neither is it acceptable for China to underscore the importance of good
faith when it clearly defies and undermines the authority and effectiveness
of international law.80 There is some unsettling dissonance with China’s overt
pronouncements that it will honor and respect international law and its acts
of intensifying military activities and building artificial structures on another
State’s eez, and its open defiance to the arbitral tribunal’s award.81

78  Darren Boyle, “Beijing accuses un judges of taking bribes from the Philippines after they
ruled against national claim to the South China Sea”, Daily Mail Australia, 14 July 2016,
available at http://www.dailymail.co.uk/news/article-3688805/Beijing-accuses-judges-
taking-bribes-Philippines-ruled-against-national-claim-South-China-Sea.html.
79  Bill Birtles, “South China Sea: Hague judges may have been influenced by money, Chinese
official says,” ABC News, 13 July 2016, available at http://www.abc.net.au/news/2016-07-13/
china-reasserts-claims-over-south-china-sea-after-hague-ruling/7625114.
80  The South China Sea Arbitration Award of 12 July 2016, paragraphs 1141, 1142, 1143, 1171.
81  Position Paper of the Government of the People’s Republic of China on the Matter
of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the
Philippines, 7 December 2014. See also, The South China Sea Arbitration Award of 12 July
2016, paragraphs 1135, 1141, 1142, 1143.

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The South China Sea Arbitral Award 59

III The Arbitral Award amidst a Shifting Philippine Foreign Policy

The Philippines is in the midst of a transition. The astonishing rise and deci-
sive victory of Rodrigo Duterte in the presidential election in May 2016 marked
a significant turning point in Philippine politics. Among the most immedi-
ate and intricate foreign policy challenge facing Philippine President Duterte
will definitely be Manila’s longstanding territorial and maritime disputes with
China over the South China Sea. His position on this issue solidly rests on his
views about China. At the moment, the imminent test of how Duterte will suc-
cessfully navigate the turbulent waters of the South China Sea is how he could
restore the frayed bilateral relationship with China whilst maintaining robust
security and defense relations with the United States. This requires a delicate
balancing act and no easy feat to accomplish.
The previous Aquino administration adopted a hard-line policy to-
wards China over the South China Sea, and pursued closer security ties with
Washington and Tokyo. In contrast, Duterte favors direct negotiations with
China and has indicated that he is willing to shelve the contentious issue of
sovereignty in exchange for Chinese economic concessions.82 Duterte’s con-
stantly changing and at times conflicting statements on the South China Sea
include previous pronouncements that he will not surrender Philippine rights
to Scarborough Shoal which he set aside during his State visit to China and
requested Beijing to allow Filipino fishermen to fish in the same area.83
The election of Duterte in June 2016 foreshowed a recalibration of the
country’s foreign policy, including its approach to China. In sharp contrast to
Duterte’s popular image of being fearless, volatile and unpredictable, his con-
ciliatory and amicable position towards China seems a mystery. The President’s
colorful language, which reveals a deep-seated resentment towards the United
States, is a thin veneer covering a hollow foreign policy on a dangerously iso-
lationist path. While Duterte has demonstrated his embarrassing histrionics,
he has yet to unveil a carefully crafted and detailed policy towards China and
how his administration intends to deal with the complex disputes in the South
China Sea.

82  “President Duterte says he’ll forge strong trade alliance with Chinese, Russian busi-
nesses”, Official Gazette, 26 September 2016, available at http://www.gov.ph/2016/09/26/
president-duterte-says-hell-forge-strong-trade-alliance-with-chinese-russian-businesses/.
83  Cal Wong, “Has Duterte Won a South China Sea Concession From China?”, The Diplomat,
1 November 2016, available at http://thediplomat.com/2016/11/has-duterte-won-a-south-
china-sea-concession-from-china/.

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60 Bautista

1 Philippine Foreign Policy under Duterte

The election of Duterte in June 2016 foreshowed a recalibration of the coun-
try’s foreign policy, including its approach to China. Philippine foreign policy
under President Duterte will be profoundly different from the one pursued
by the previous administration of President Benigno Aquino iii. The priori-
ties, philosophy and dynamics that inform the policies of Duterte will be fash-
ioned and influenced by his background as a local politician from the southern
Philippines, predicated on his anti-establishment position as a virtual outsider
in national politics and a neophyte in foreign affairs. The usually sombre struc-
ture of global diplomacy with its tradition, protocol and etiquette as basic val-
ues, have contrasted with the raw honesty, populist theatrics, impulsiveness
and frivolity of President Duterte. He has not been received with delightful
enthusiasm overseas but maintains massive popular support at home. The suc-
cession of diplomatic faux pas that have speckled Duterte’s term makes it obvi-
ous that he is a foreign policy novice.84
The general direction of Duterte’s foreign policy evidently signals an inex-
plicable shift in the country’s allegiance away from Washington toward Beijing.
Duterte appears to be determined to compromise with and appease China;
eager not just to mend relations but to forge stronger ties with China. During
his State visit to China in October 2016, Duterte announced the country’s mili-
tary and economic “separation” from the United States, which was immedi-
ately clarified as not severance of diplomatic ties but merely foreign policy
independent of the us.85 Curiously, Duterte’s idea of foreign policy includes
an alliance with China and Russia since the country has reached a “point of
no return” in its relations with former colonial ruler the United States. These
moves reinforce his administration’s accommodating posture towards China
and possibly augur an impending security realignment.86 Duterte had previ-
ously declared an end to joint Philippine-American naval patrols in the South

84  Kate Samuelson, “7 Times Philippine President Rodrigo Duterte Shocked the World,” Time,
6 September 2016, available at http://time.com/4480188/obama-whore-rodrigo-duterte-
remarks/.
85  Reuters, “Duterte clarifies ‘separation’ comments, says trade ties between Philippines
and us will stay”, ABC News, 22 October 2016, available at http://www.abc.net.au/news/
2016-10-21/duterte-says-us-has-lost-aligns-philippines-with-china/7952628.
86  Manuel Mogato and Benjamin Kang Lim, “Duterte visit to China may lead to changing
alliances in East Asia”, World News, 30 September 2016, available at http://www.reuters
.com/article/us-philippines-china-idUSKCN1201KJ.

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The South China Sea Arbitral Award 61

China Sea.87 The resilience of the u.s.-Philippine alliance, a pillar of the u.s.
strategic rebalance in Asia, has never looked so fragile.
The Philippine foreign policy conundrum can be summed up in one word:
Duterte. The Philippine constitutional structure, which is essentially presiden-
tial in orientation, vests overwhelming power and authority upon the chief ex-
ecutive. As president, thus, Duterte is the chief architect of Philippine foreign
policy. This places a heavy burden upon his shoulders to have a solid grasp of
geopolitics, foreign relations and international law, mastery of any of which he
has yet to demonstrate.
In crafting Duterte’s foreign policy blueprint, he needs to consider the
three interconnected pillars upon which Philippine foreign policy rests: na-
tional security, economic security and the protection of the rights and inter-
ests of Filipinos overseas. His more amicable, less confrontational position in
respect to the South China Sea, contrasted with his brazen contempt of the
United States, represents a radical shift in longstanding foreign policy align-
ments. This departure requires a delicate balancing act and will be met with
strong opposition and may signal instability to the rest of the region especially
within asean.

2 A Radical Departure in Foreign Policy

The Arbitral Tribunal’s award was the first litmus test of where the Philippine
President Duterte stood on the issue of the South China Sea. Duterte has set
aside the award whilst seeking trade, economic and military concessions from
China.88 The Chinese government has repeatedly confirmed that it will neither
honor nor consider itself bound by the award. The award has been reduced, in
the very words of Duterte, to a mere “piece of paper”, which the current admin-
istration has decided to disregard in bilateral negotiations with China.89

87  Martin Petty, “Duterte declares upcoming Philippines-u.s. war games ‘the last one’ ”,
Reuters World News, 29 September 2016, available at http://www.reuters.com/article/
us-philippines-duterte-idUSKCN11Y1ZI.
88  Alexis Romero and Richmond Mercurio, “Philippines, China sign $24-B deals”, The
Philippine Star, 22 October 2016, available at http://www.philstar.com/headlines/2016/
10/22/1636102/philippines-china-sign-24-b-deals.
89  Reuters, Rodrigo Duterte: South China Sea arbitration case to take ‘back seat’ during
Beijing visit, Philippine leader says, ABC News, 20 October 2016, available at http://www
.abc.net.au/news/2016-10-20/rodrigo-duterte-says-south-china-sea-case-to-take-back-
seat/7948474.

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62 Bautista

On 18 to 21 October 2016, during Duterte’s State visit to China, he stated that

China “has never invaded a piece of my country all these generations”.90 This
statement was heavily criticised for its historically revisionist nature, overlook-
ing the incontrovertible fact that in 1995, China seized Mischief Reef, affirmed
in the arbitral award as a low tide elevation which cannot be appropriated
and legally part of the country’s continental shelf,91 and that China in 2012 has
physically occupied Scarborough Shoal, which is defined under Philippine law
as part of the national territory.92 In the same State visit, Duterte’s declara-
tion seeking China’s permission for Filipinos to resume fishing operations in
Scarborough Shoal could have injurious legal implications on the Philippine
claim.93 The joint statement issued by the Philippines and China at the con-
clusion of Duterte’s State visit to China which conspicuously did not mention
the South China Sea arbitration or the tribunal’s ruling speaks volumes of the
rapid shift in Philippine foreign policy in respect of the South China Sea.94

3 A New Chapter in Philippine-China Relations

The direction of Philippine-China relations under Duterte is still uncertain.
The paucity of any solid, long-term and categorical statement from Duterte
on the South China Sea – indeed on foreign policy in general – makes crys-
tal ball gazing particularly difficult. At best, Duterte’s rhetoric suggests more
cordial relations between Manila and Beijing. The Duterte administration has
obviously abandoned the previously prevailing dominant narrative of Chinese

90  Jarius Bondoc, “Duterte wrong on China non-invasion – Carpio”, PhilStar Global, 24
October 2016, available at http://www.philstar.com/opinion/2016/10/24/1636757/duterte-
wrong-china-non-invasion-carpio.
91  The South China Sea Arbitration Award of 12 July 2016, paragraphs 383, 646, 647.
92  Lowell Bautista, “The Philippine claim to Bajo de Masinloc in the context of the South
China Sea dispute’ (2013) 6 (2) Journal of East Asia and International Law 497–529. In
the Award, the Tribunal ruled that China’s law enforcement operations in the vicinity
of Scarborough Shoal breached its obligations under Article 94 of unclos, created seri-
ous risk of collision and danger to Philippine ships and personnel and violated Rules of
the International Regulations for Preventing Collisions at Sea, 1972. The South China Sea
Arbitration Award of 12 July 2016, paragraphs 1203(b)(15).
93  See for example, International Law Commission, Guiding Principles applicable to unilat-
eral declarations of States capable of creating legal obligations, with commentaries thereto
(United Nations, 2006); Christian Eckart, Promises of States under International Law
(Hart Publishing, 2012).
94  Full text: Joint statement of the Philippines and China, The Philippine Star, 21 October
2016, available at http://www.philstar.com/headlines/2016/10/21/1635919/full-text-joint-
statement-philippines-and-china.

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The South China Sea Arbitral Award 63

hegemonic expansionism in the South China Sea. He espouses joint develop-

ment with China while eschewing the issue of ownership. Duterte opposes the
idea of going to war with China; nor does he advocate the use of legal avenues
to enforce the Philippines’ claims. Instead, he prefers a multilateral approach
that will bring rival claimants and even extra-regional powers, including the
United States, to the negotiating table. These views signal a radical shift in
Philippine-China relations under Duterte.
The unpredictable nature of the current Philippine chief executive eschews
any reliable forecast on the future direction of Philippine-China relations.
There are mixed and inconsistent foreign policy gestures but there remains
no cohesive and long-term foreign policy on the South China Sea. Duterte’s
overriding concern to restore cordial relations between Manila and Beijing
will remain in the agenda whilst the two countries channel their energies and
resources on economic activities that are mutually beneficial. However, the
softening of Manila’s stand against an increasingly aggressive and expansionist
China could expose cracks in the unstable regional security architecture, and
further weaken the concerted efforts of extra-regional powers, primarily the
United States and Japan, to counterbalance China’s provocative military pos-
turing, as well as subvert asean initiatives to rally behind a unified position
against an assertive China. Duterte’s reckless statements that the Philippines
will discontinue its alliance with the United States in favor of an alliance with
China and even Russia,95 if acted upon, will radically reorder the security situ-
ation not just in the South China Sea, but the entire Asia-Pacific region. In the
same manner, the Philippines and China as well as the other claimant States in
the South China Sea, should be cautious in recognizing the direct and implied
interests of third parties and should avoid the intervention of non-claimant
States and extra-regional powers that may further militarise the region, con-
found the sovereignty and maritime claims, and only create obstacles for the
parties to find an amicable solution to the dispute. In the short term, a rapid
shift in defence posture by Manila could further increase the risk of miscalcu-
lations and provocations on the ground, and undermine longstanding efforts
to reinforce a rules-based approach to resolving the South China Sea dispute.

95  Gil C. Cabacungan, “Duterte seeks alliances with China and Russia”, Philippine Daily
Inquirer, 28 September 2016, available at https://globalnation.inquirer.net/145595/
duterte-seeks-alliances-with-china-and-russia.

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64 Bautista

IV Conclusion

In international law, the award of the Arbitral Tribunal award is final, bind-
ing, there are no provision for appeal, and carries enormous precedential
weight.96 The award, legally, cannot be ignored or set aside despite China’s pro-
testations that it is null and void. Beijing’s accusations that cast aspersions on
the integrity of the judges should not be dignified. The Philippines, however,
also needs to be magnanimous in its victory and be aware that the award has
not changed the geopolitical situation in the region. The glaring military and
economic asymmetry between the claimant states and China still remains, and
will remain unchanged in the years to come. There are massive illegal struc-
tures in the form of artificial islands and reclaimed land sitting in Philippine
waters that raise issues of dismantlement, reparation and compensation for
the irreparable damage caused to the marine environment. Scarborough Shoal
remains under China’s de facto control and continues to impede fishermen
from the other littoral States from fishing in the area.97 There are contentious
issues of reparation and State liability, and even tougher questions of disman-
tlement, demilitarization and de-escalation of tensions in order to avoid the
possibility of miscalculations that could lead to armed conflict.
The complexities associated with the maritime and territorial disputes in
the South China Sea lie where international law, international relations, geo-
politics and a rising global power all coalesce and intersect. The historic legal
and moral victory that the Philippines secured in the arbitration against China
is a testament to the commendable job by preeminent lawyers. The next phase
is now the rightful domain of diplomats, strategists and foreign policy experts
to take the lead in order to make the award a real and lasting triumph for the
Philippines. It will take considerable time, effort and goodwill from both the
Philippines and China to mend their frayed bilateral relationship. Independent
of the ruling, a significant shortcoming in the current incendiary posturing
against the United States, which has introduced an ambiguity in Philippine
foreign relations with consequences on the region and beyond, is the ab-
sence of a carefully considered, credible, long-term, and truly independent
foreign policy.

96  The award constitutes a subsidiary means for the determination of rules of law under
Article 38(l)(d) of the icj Statute.
97  J.C. Gotinga, “Filipino fishermen still barred from Scarborough Shoal”, CNN Philippines,
15 July 2016, available at http://cnnphilippines.com/news/2016/07/15/scarborough-shoal-
filipino-fishermen-chinese-coast-guard.html1.

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The South China Sea Arbitral Award 65

The Philippines, against the backdrop of the euphoria amongst the citizens
of the Tribunal’s award, needs to consider and put in perspective economic
and trade realities with China. The Philippines needs to reassess its military
capabilities, and recognize that it cannot rely on external powers such as the
United States to safeguard the country’s territorial integrity and national sov-
ereignty. There is noticeable silence and even explicit lack of support from the
other claimant States. Looking ahead, one hopes that the Tribunal’s recogni-
tion of the rights of the Philippines under unclos will encourage other claim-
ant states to follow suit and institute their own legal challenge against China’s
expansive claims in the South China Sea. The reality, however, indicates that
this does not appear likely in the foreseeable future. In fact, in the aftermath
of the award, the ruling has only highlighted fractures and divisions within
asean especially during meetings and official fora where the issue of the arbi-
tral award is always a contentious issue, exposed the drawbacks of the region’s
consensus process, and challenged asean “centrality”, with the potential of
intense clashes still looming in the horizon. It will be ironic if the award, which
clarified what the claimant States in the South China Sea could rightfully claim
under international law, will have the unintended effect of intensifying the
disputes.
It is clear that the arbitral tribunal award did not resolve the maritime and
territorial dispute between the Philippines and China in the South China
Sea. This was never the objective in the institution of the proceedings. The
Philippines has indisputably won the case. However, the change in leadership
in Manila augured a shift in Philippine foreign policy and a recalibration of its
approach towards China. The current rapprochement between the Philippine-
China is a positive development after years of acrimonious estrangement.
However, the award should not be audaciously disregarded as such would be
a flawed, myopic, and treacherous articulation of Philippine foreign policy
which will be detrimental to the country’s long-term interests.

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