By Renato Cruz de Castro

The 2012 Scarborough Shoal stand-off between the Philippines and China was the proverbial tipping point caused by China’s pattern of protracted, aggressive actions against the Philippines that began two years earlier. In mid-2010, the Philippine government had observed an increased Chinese naval presence and activities in the country’s Exclusive Economic Zone (EEZ), recorded reports of Chinese warships firing at Filipino fishermen, and experienced the harassment of its survey vessel by two Chinese patrol boats while it conducted gas exploration in the Reed Bank. Confronted by an assertive China, the Philippines relies on its commitment to an international law governing the use of the world oceans as a means of settling territorial disputes. Philippine Foreign Secretary Roberto Del Rosario emphasized the importance of this approach when he declared that the “UNCLOS has never been more important for the Philippines than today, when overlapping maritime claims threatens as never before the peace and prosperity in our part of the world.” Without any credible military capability to back its diplomacy, for the Philippines, “the legal track presents the most durable option to defend the national interests and territory on the basis of international law.”

From April 9 to June 18, 2012, the Philippines was pitted against China in a tense naval stand-off at the Scarborough Shoal. On April 8, 2012 the Philippine Navy’s (PN’s) flagship, the BRP Gregorio Del Pilar, tried to apprehend several Chinese fishing boats engaged in illegal activities at the Scarborough Shoal. Two Chinese Maritime Surveillance (CMS) vessels arrived and prevented the arrest of the Chinese fishermen who were hauling corals, clams, and live sharks into their boats. The stand-off underscored China’s preferred maritime strategy against the smaller claimant states. This strategy involves “drawing a line” in the sea using civilian vessels to challenge littoral states. This strategy relies on increasing the risk that maritime confrontations will become military, because Beijing keeps People’s Liberation Army Navy (PLAN) ships lurking in the background. During the 2012 stand-off, the Philippines reiterated its proposal to put the dispute over the shoal for arbitration by the International Tribunal on the Law of the Sea (ITLOS). The Philippines justified its insistence on a multilateral approach to ensure the freedom of navigation and the unimpeded commerce in the South China Sea, which are fundamental interests of countries worldwide.

In mid-June 2012, after the Philippines withdrew its single coast guard vessels from the area, China became the de facto occupier of the Scarborough Shoal. Crew members of CMS vessels constructed a chain barrier across the mouth of the shoal to block Philippine access to it. China deployed these vessels to protect the fleet of Chinese fishing boats operating deep into the Philippines EEZ. In October 2012, Chinese Foreign Minister Fu Ying visited Manila to badger the Philippines into accepting in silence China’s exercise of de facto occupation of the Scarborough Shoal.

Philippine officials, however, were not cowed into accepting China’s fait accompli. In January 2013, the Philippines directly confronted Chinese coercive diplomacy by filing a statement of claim against China in the Arbitral Tribunal of the United Nations Convention on the Law of the Sea (UNCLOS). In its statement of claim, the Philippines made it clear that it does not seek arbitration over which party has sovereignty over the islands claimed by both the Philippines and China. Rather, it merely requests the Arbitral Tribunal to issue an opinion on the following issues: 1) Whether China’s maritime claim in the South China Sea based on its so-called nine-dash line claim is valid or contrary to UNCLOS; and 2) whether Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Reef, which are submerged features that are below sea level at high tide are islands or rocks under Article 121 (3) of the Convention.

China refused to participate in the international arbitration and openly expressed its opposition to the Philippines’ filing of a case to the arbitral tribunal. On February 20, 2013, the Chinese ambassador in Manila returned the notice of arbitration to the Department of Foreign Affairs. Chinese foreign ministry spokesperson in Beijing branded the filing as “factually flawed” and accused Manila of violating the non-binding 2001 Declaration of Conduct of the Parties in the South China Sea which provides for ASEAN and China to settle their maritime disputes among themselves. In April 2013, a visiting Chinese foreign ministry official warned Manila of the consequences of pushing the arbitration process against China. Beijing’s resentment towards Manila became more glaring in November 2013 after it donated a mere $100,000 to the Philippines after the central part of the country was devastated by Typhoon Yolanda (Haiayan)—a category five typhoon.

The Philippines’ filing statement of claim against China in the Arbitral Tribunal under UNCLOS showed that it won’t be subdued by the latter party’s strong-arm tactic. In doing so, the Philippines is blunting China’s realpolitik approach as it is seeking a multilateral and legal solution to the territorial dispute in the South China Sea, and invoking the international community’s stake in the outcome of this case. The Philippines is showing to the world that the appropriate approach for resolving disputes involving overlapping claims to the global commons should be the liberal, legal approach based on multilateralism and international law, rather than a “might makes right,” realpolitik strategy. It remains to be seen in 2015 and 2016 whether or not this will prevail.

This article is cross-posted with the CSIS Asia Maritime Transparency Initiative project page where it first appeared here.