The 12 July 2016 Permanent Court of Arbitration's (PCA) Award: The Philippines' Lawfare versus China's Realpolitik in the South China Sea Dispute

By De Castro, Renato Cruz | International Journal of China Studies, December 2017 | Go to article overview

The 12 July 2016 Permanent Court of Arbitration's (PCA) Award: The Philippines' Lawfare versus China's Realpolitik in the South China Sea Dispute


De Castro, Renato Cruz, International Journal of China Studies


1.Introduction

... Law, like politics, is a meeting place for ethics and power.

The same is true of international law, which can have no existence except in so as far as there is an international community which, on the basis of a minimum common view, recognizes it as binding. International law is a function of the political community of nations. Its defects are due, not to any technical shortcomings but to the embryonic character of the community in which it functions}

E.H. Carr, 1939

The Scarborough Shoal stand-off in 2012 exemplifies a historic pattem of Chinese protracted, low-intensity, and incremental moves to gain control of a large portion of the South China Sea. The impasse pitted the Philippines - which has the weakest navy in the region, and an ill-equipped air force incapable of safeguarding its vast maritime territory - with China in a naval brinkmanship game. The stand-off began on 10 April 2012 when the Philippine Navy's (PN's) flagship, the BRP Gregorio Del Pilar tried to apprehend several Chinese fishing boats at the Scarborough Shoal. However, at this juncture, two Chinese maritime surveillance vessels arrived and prevented the arrest of the Chinese fishermen who were hauling corals, clams and live sharks into their boats. To diffuse the tension and avoid a dangerous armed confrontation with the Chinese patrol vessels, the Philippines replaced its surface combatant with a smaller coast guard vessel. Instead of reciprocating, China raised the stakes by deploying the Yuzheng 310 - the most advanced and largest patrol vessel equipped with machine guns, light cannons and electronic sensors. When the Philippines government filed a diplomatic protest, the Chinese Embassy in Manila contended that the three Chinese surveillance vessels in Scarborough Shoal were "in the area fulfilling the duties of safeguarding Chinese maritime rights and interests." It added that the shoal "is an integral part of the Chinese territory and the waters around it are the traditional fishing area for Chinese fishermen."2 Clearly, this incident underscores an international reality - Chinese economic and naval power cast a long shadow over the Philippines and Vietnam, which are at the forefront of a maritime dispute with China in the South China Sea.3

However, much to China's surprise, the Philippine government decided to fight back. In January 2013, the Philippines directly confronted Chinese realpolitik approach in the South China Sea dispute by filing a statement of claim against China in the Arbitral Tribunal of the United Nations Convention on the Law of the Sea (UNCLOS).

This paper examines why and how the Philippines used the legal/ liberal approach as lawfare to blunt China's realpolitik strategy against the Philippines which began as early as 1995 with the occupation of the Mischief Reef by Chinese forces, and culminated with the 2012 confrontation between a Philippine Coast Guard (PCG) vessel and four Chinese Maritime Surveillance (CMS) ships at the Scarborough Shoal. It addresses two major questions: 1) what events led to the Philippines' filing of a case against China's expansive maritime claims in the South China Sea in 2013, and 2) how does the 2016 Permanent Court of Arbitration (PCA) award to the Philippines affect its stance against China's expansionist moves in the disputed waters? This paper also raises these ancillary questions: 1) how did the Philippines respond to China's realpolitik tactic during and after the Scarborough Shoal stand-off? 2) How did the Philippines pursue its liberal/ legal approach vis-a-vis China's realpolitik approach after the Scarborough Shoal stand-off? 3) How did the PCA award to the Philippines blunt China's realpolitik approach to the maritime dispute? 4) What are the geo-strategic implications of the PCA award to the Philippines for China's maritime design in the contested waters? 5) How has the Duterte Administration used the PCA ruling to challenge China's claim of sovereignty over most of the South China Sea? …

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