Saint Louis College

College of Law
School Year: 2022-2023

THE CONTINUING TENSION OVER CHINA'S VIOLATIONS

A Partial Fulfillment of the Requirements in the

Submitted by Bianca Danica R. Ugay

May 20, 2023

The increasing risk of conflict in the South China Sea (SCS) poses a significant threat

to stability in the region and to Philippines’ interests. Not only do Taiwan, Vietnam,

Malaysia, Brunei, and the United States have competing territorial and jurisdictional claims

over the physical features of the South China Sea. Additionally, Beijing’s insistence that it

has “indisputable sovereignty over the South China Sea Islands and the adjacent waters”

within the so-called “nine-dash line” as well as its accelerated industrial scale “island

building” for military purposes have increased the overall international tension in this region.

China’s militarization of the South China Sea is of great concern to the Philippines and its

regional allies because China’s aggressive assertions serve to destabilize the region and

weaken important international agreements such as the Law of the Sea Convention.

Additional concerns include China’s refusal to arbitrate legitimate disputes concerning the

law of the sea, an aversion to multilateral negotiations, and the refusal to enter into bilateral

negotiations on the basis of equality.

The Philippine claim focuses on the Spratly Islands and the maritime space around

them, including Scarborough Shoal, a small ring of rocks and reefs more than 200km west of

Luzon, the Philippines’ largest and most populous island. According to the United States, the

law of the sea forms the basis for the conduct of maritime commerce critical to our economy;

codifies the rules of freedom of navigation that are essential to national security; and enables

the U.S. to conserve, regulate, and exploit the resources of our neighboring waters and

continental shelf for the benefit of the environment and economy. America’s commercial and

military position in the world is preserved by the rule of law at sea.

construction reclamation, engaging in harmful harvesting practices, island building practices

and the China’s fishing vessels is within Philippine EEZ.

Statement of Problem

How does the Philippines deal with the continuing tension over China’s violations in

the South China Sea?

Objective

The conflict and tension on competing sovereignty claims over the South China Sea

have grown considerably in the past five years. China has adopted an increasingly assertive

posture towards its own claims by elevating it to a core interest, strengthening its fishery law

enforcement and building civilian and military facilities in the disputed islands and waters.

China’s rising military power and political influence in East Asia has generated anxiety and

suspicion among some of its neighbors. In particular, its growing assertiveness over

sovereignty and maritime rights in the South China Sea is viewed as a serious challenge to

the status quo in the region. This paper examines these issues and the country’s strategic

interests in the South China Sea to help better understand the changing strategic realities in

East Asia and the nature of the disputes in the area.

Scope and Limitations of the Study

By assessment from the interviews regarding in this study, they emphasize that the

economic benefits for Filipinos have been forgone, and ecological threats disregarded the

SCS contributes of the country’s fisheries production. Due to unceasing incursions, fisher

folk who belong to the Philippines’s second most impoverished sector, may have lost their

livelihood. Moreover, amid China’s illegal fishing moratorium at Scarborough Shoal and the

intense competition for fish in the Spratlys, varying estimates of local catch decline have
been reported. The threat that china will move to fish in the KIG area also looms as the

Spratlys’ fish stock diminishes. This is perilous not just for the Philippines’ future but also

that of the region. The KIG provides coral and fish larvae to reef systems in the Sulu Sea and

Indo-China. The destruction of coral reefs due to China’s large-scale reclamation and

poaching in the Spratlys aggravates the exhaustion of the fisheries sector. The Philippines is

estimated to be losing trillion a year from reef damage.

Conceptual Framework

As direct negotiation with China on the maritime dispute led nowhere, Aquino

pursued the legal option, filing a case challenging China’s territorial claim under Annex VII

of the UN Convention on the Law of the Sea (UNCLOS). The Permanent Court of

Arbitration hosted the proceedings. Manila resorted to the international tribunal to resolve

questions of interpretation bearing on Beijing’s maritime claims, including the validity of

claims rooted in historic rights as manifested by the nine-dash line. The Philippine decision to

take the legal route reportedly “was like a shock” for Beijing. China cancelled several high-

level events and summits and issued a travel advisory that diminished tourism in the

Philippines. Overall, Beijing’s response was “very disproportionate”, according to a former

Philippine official. On 12 July 2016, the Court finally delivered a ruling in the Philippines’

favor. The central finding was that China’s nine-dash line and assertion of “historic rights”

have no basis in international law. The Court declared Scarborough Shoal a traditional

fishing ground of Chinese (including from Taiwan), Philippine and Vietnamese fishermen,

and ruled that China had violated international law by denying Filipinos access to the area.

Importantly, the Court also ruled that no feature in the Spratlys could be legally classified as

an island capable of generating an EEZ or a continental shelf. Instead, all features were

found to be “rocks” or “low-tide elevations” under UNCLOS. A ruling on sovereignty over

the Spratlys and their associated maritime zones was, however, outside the tribunal’s
jurisdiction. Likewise, territorial sovereignty over Scarborough Shoal remains ambiguous, as

both Chinese and Philippine claims persist.

International law, especially the United Nations Convention on the Law of the Sea,

provides the fundamental framework for the adjustment of competing and convergent

interests in the oceans. Provisional arrangements, which include the more specific mechanism

of joint development of resources, were recognized as early as 1969 in the North Sea

Continental Shelf Cases which recognized that overlapping continental shelf claims were a

fact of life, and that pending resolution through boundary delimitation, States should agree on

joint exploitation of resources in order to preserve “the unity of the deposit.” This is an

economic rationale, that resources could be better and more efficiently harnessed through

cooperation rather than lost and wasted through competition. In 1999, the Eritrea v Yemen

Award advocated that parties should give every consideration to “shared or joint or unitized

exploitation” of petroleum resources. The obligation to make every effort to enter into

provisional arrangements is expressed and codified in UNCLOS Articles 74(3) and 83(3),

encouraging States to resort to non-prejudicial “provisional arrangements of a practical

nature” pending delimitations. In the case of Guyana v. Suriname, this was interpreted to

embody “twin obligations” in order to promote economic activities in a disputed maritime

area so that resources are not left un-utilized or wasted, but at the same time prevent activities

that jeopardize or hamper the negotiation of final agreements.

In recent years, China has stepped up its coercive activities which it results to

violations in the South China Sea by increasing its deployment of maritime militias that

operate alongside China law enforcement and military to harass and intimidate other claimant

states. These China actions represent a systemic and calculated effort to interfere with the

rights and freedoms, including the navigational rights and freedoms, that all countries enjoy

under international law.

Shoal, which has a handful of rocks that break water at high-tide, the tribunal concluded that

both Chinese and Filipino fishers have the right to engage in traditional fishing regardless of

who ultimately has sovereignty over the shoal. China had, through the operation of its official

vessels at Scarborough Shoal, unlawfully prevented Filipino fishermen from engaging in

traditional fishing. That remains the case today, though the situation remains tense amid

frequent reports of harassment and intimidation of Filipino fishers by the Chinese law

enforcement personnel at the feature.

Referring to a specific incident in which Chinese law enforcement vessels is within

the Philippine jurisdiction which they prevented the operations of a Philippine survey ship,

the tribunal found that China has breached Article 77 of the Convention with respect to the

Philippines sovereign rights over the non-living resources of its continental shelf.

Additionally, China’s Island Building in the South China Sea which it from

December 2013 to October 2015, China built artificial islands or large scale construction

reclamation with a total area of close to 3,000 acres on seven coral reefs it occupies in the

Spratly Islands in the southern part of the South China Sea. Although dredging, land

reclamation, and the building of artificial islands are not unique to China, the scale and speed

of China’s activities, the biodiversity of the area, and the significance of the Spratly Islands to

the ecology of the region make China’s actions of particular concern.

In addition to damage to the reefs, China’s island building activities have

negatively impacted fisheries in the immediate area of the reclamation sites, and could

negatively impact the health of fisheries in the coastal areas of the South China Sea. The

building of these artificial islands will almost certainly lead to increased Chinese fishing in

the surrounding waters, which could raise the risk of a clash between Chinese fishing boats

and those of other claimant countries. Moreover, China’s island building activities may have
violated some of its environmental commitments under international law.

Lastly, China violated the Philippines sovereign rights to the living resources of its

EEZ by engaging in harmful harvesting practices, in particular “by promulgating its 2012

moratorium on fishing in the South China Sea, without exception for areas of the South China

Sea falling within the exclusive economic zone of the Philippines and without limiting the

moratorium to Chinese flagged vessels. China nonetheless continues to declare a unilateral

fishing ban from May to August each year covering all waters north of the 12th degree of

latitude, including large sections of the EEZs of the Philippines and Vietnam. The most

recent ban provoked an angry response from the office of the president of the Philippines.

In describing broadly, the competing interests at stake for each party. First, the

Philippines. It remains a developing country with a growing population of over 100 Million,

scattered across 7,500 islands in a compact marine region rich with marine resources directly

accessed by coastal communities. Its principal interests in the SCS, or more specifically its

EEZ that is referred to as the West Philippine Sea, are best described, in order of priority

more or less, as (1) energy security, (2) food security, and (3) maritime security.

First, energy security appears to be the primary driver of the Philippines decision to

throw its hat into the SCS disputes in the late 1960s. The Western Palawan Sedimentary

Basin, which encompasses the southern half of the West Philippine Sea and extends to the

Spratly Islands region, is currently its one and only viable petroleum province. It is where the

Camago-Malampaya Deepwater Gas-to-Power Project owned by Shell, Chevron, and PNOC

is located and has produced 20-30% of the national power requirements. This single natural

gas platform has enabled the Philippines to maintain its targeted energy mix that relies on

indigenous petroleum energy sources, which is key to its economic resilience and growth.

Take away this component, and the country will become absolutely dependent on imported

fossil fuels and energy prices will be far more volatile and vulnerable to external factors.
Secondly, food security comes in second, as up to 20% of the country’s total fish production

has consistently come from the West Philippine Sea. Fish remain the principal source of

protein the Filipino’s diet, and provide subsistence directly to coastal fishing communities

facing west. The maintenance of fish production and access to fishing grounds is key to social

and economic stability and security for these communities. In recent decades, these

communities have undertaken directly the task of establishing local marine protected areas,

now numbering over 1,700 with varied success, to ensure direct local access to food sources

independently of markets. Without access to these fishing grounds, already poor coastal

communities will become poorer, stymie efforts to alleviate poverty and create conditions

ripe for social disorder. And lastly, maritime security is the third, on account of the vantage

points provided that both Scarborough Shoal to the north and the Spratly Islands to the south

for the corresponding western flanks of Luzon and Palawan. Scarborough Shoal is

strategically located adjacent to Manila and Subic; from there, one can surveil and potentially

control all maritime and air traffic into and out of these key nodes of Philippine commerce

and governance. The Spratly Islands, on the other hand, lie between two major sea routes

through the SCS including one that links Manila and other Philippine ports to the rest of Asia,

the Middle East, and Africa. It also straddles routes from the Asian mainland into the

historical southern “backdoor” region between Malaysia and the Philippines.

If we look at China, several orders of magnitude much larger and more powerful, a

slightly different. Picture of interests emerges. Based on its more recent activities, China’s

interests appear in a different order of priority, beginning with (1) maritime security, (2) food

security, and (3) energy security. In maritime security appears to be the primary interest of

China given the extreme emphasis it has laid on ensuring that the SCS become a defensive

zone to protect its southern coast. The SCS has been incorporated into its defensive perimeter

to secure access and control of its coastal cities, industries, and ports. The rapid construction
of massive artificial islands at huge expense between 2014-2016 demonstrates the absolute

importance China places on this primary interest. This also complements the government’s

need for political security, as the SCS is often portrayed as the arena of US containment of

China, hence control of this maritime area represents an assurance of sovereignty. The

historical narrative deployed by China is the basis for political support and unity among its

population to support. The government’s policies and initiatives in this regard, despite its

negative impact on the regional neighborhood. Then the food security ranks second, on

account of the need of southern Chinese provinces, notably Hainan, for access to fishery

resources in light of the decline in fish stocks and resources along the mainland coast. China

has subsidized and promoted Chinese fishing further into the SCS most especially within the

last decade. Energy security is last, despite the much-touted and often-bannered petroleum

riches in the SCS. While China, as an energy importer with growing needs for even more

energy sources, would also be interested in petroleum resources, it is currently acquiring its

energy from undisputed areas closer to the coast and is already able to tap its petroleum needs

from the global market. While it has insisted on joint development of petroleum resources in

the SCS, it has not demonstrated any particular urgency in offering modalities or negotiating

detailed agreements with any of the littoral States. The rhetoric on joint development thus

appears to be deployed for political effect rather than serious proposals.

Despite these competing interests, the Philippines and China actually do have

common interests. Both require the economic security that is enabled by maritime trade, and

therefore both have an interest in the freedom of navigation and overflight for purposes of

trade and travel. Both have an interest in ensuring the freedom of communication enabled by

submarine cables which support the conduct of international commerce. Both countries have

an inherent interest in the environmental security, particularly in preserving the resilience and

productivity of all living resources and habitats throughout the SCS. Conversely, they also
have an interest in protecting the sea and its resources from oil and chemical spills, material

discharges, and similar maritime disasters, as well as ensuring the safety of life at sea. Both

countries also have an interest in ensuring regional stability through the prevention of crisis

and incidents with the potential to escalate into armed conflict, no matter how limited.

Under the former President Duterte’s strategy to de-escalate maritime disputes with

China started out rather well, fostering agreements on fisheries in Scarborough Shoal and

resource exploration close to Reed Bank and Palawan. Over time, however, old problems

have resurfaced. Seen from Manila, the South China Sea situation looks increasingly like a

long-term stalemate. Filipinos, fishermen and sailors alike, have regularly reported arbitrary

acts – such as confiscation of catches or fishing equipment – by Beijing’s ships at the shoal in

the last few years. At first, after the 2016 arbitral decision and the beginning of Duterte’s

term, China permitted Filipinos to fish at Scarborough, but since then it has equivocated. The

informal agreement between Duterte’s envoy and Beijing was verbal, and its interpretation

seems contingent on Chinese coast guard personnel’s “mood” For Filipinos, fishing in Bajo

de Masinloc has been a traditional occupation for centuries. Before the conflict, hundreds of

men from Masinloc fished near Scarborough, with dozens of deep-sea fishing boats regularly

venturing out to the shoal. While there is no formal prohibition, most Filipinos now avoid

going there. Larger fishing boats are blocked from entering the lagoon by the Chinese coast

guard, while the combination of a fourteen-hour journey and the risk of encountering hostile

Chinese vessels outweighs the economic benefits for small-boat operators. The economic

impact of being cut off from traditional fishing grounds is visible in Masinloc. Fishing

remains the main livelihood, but while some fishermen have been able to keep plying their

trade in more accessible waters, others have had to seek lower-paying work as laborer’s or

tricycle drivers. One fisherman explained: “When Scarborough fishing was great, I could

even save some money; but now, what I earn is just enough for our daily needs”.
 A major long-term problem for the Philippines is the depletion of fish stocks in the

South China Sea. Fishing grounds in the Sea have been likened to “cowboy country”, where

players competing with no regulation create a “free-for-all”. Fishing vessels from China,

Vietnam and Taiwan all ply their trade within the Philippine EEZ. The level of overfishing is

such that fish stocks in the region seem vulnerable to collapse if resource mismanagement

continues. The maritime dispute causes two main problems for Philippine fishing: first,

overlapping claims mean more fishing boats competing for limited resources; and secondly,

foreign vessels intimidate local fishermen, who prefer to avoid trouble. These patterns affect

different areas differently. In Palawan, fishermen do not go beyond municipal waters and are

thus hardly affected by the dispute. The situation is more complicated in the Spratlys.

Scarborough Shoal is another matter because of its significance as a traditional fishing

ground at the heart of the maritime dispute. Their explanations included the presence of too

many Filipino fishermen, unsustainable fishing methods (such as the use of dynamite),

migration of fish stocks and the overwhelming presence of Chinese fishing boats since the

2012 standoff. Cooperation among the littoral states to tackle overfishing across the region is

urgently required. Exchanges between scientists and data gathering are undoubtedly a small

step in the right direction, even if access challenges are a complication. But more effort and

political capital should be invested by the Philippines and other littoral states to kickstart

genuine technical cooperation between claimants, for example through regular meetings,

workshops, joint review of scientific surveys and scenario analysis for fish stocks.

Although the exact quantities are unknown, the South China Sea is said to sit atop

vast oil and gas reserves. With the Philippines presently importing oil and gas, and the major

Malampaya gas field expected to run out within a few years, finding new energy sources is a

high priority for policymakers. Gaining access to additional energy resources in its EEZ

could have a “sizeable impact” on the Philippines’ economy, despite the relatively high cost
of offshore hydrocarbon extraction. Manila, however, has limited capacity to exploit the

reserves on its own, and complications associated with the littoral dispute tend to keep

multinational companies away. In principle, however, joint exploration of resources remains

a way to facilitate cooperation between China and the Philippines. “Oil and gas could be a

conflict minimiser”, argued a former diplomat, “and it need not compromise sovereignty”.

Conclusions and Recommendations

Therefore, I conclude that China is still giving these tensions to the Philippines its

because of certain interest that they want to protect or to gained. Certain interim measures,

similar to provisional arrangements of a practical nature, are in order. Such measures are

necessary in order to at least stabilize the situation and prevent further complication, and at

the same time possibly enable the parties to create room for future cooperation and eventual

resolution. Interim measures for the short term should have the parties work on their common

interests that transcend maritime boundaries. These solutions could be seen as “borderless”

measures that can be undertaken individually, within areas under their control or imposed on

their own nationals, but which have beneficial effects for all littoral States. In concrete terms:

(1) The parties should openly and expressly commit to complete freedom of navigation

and overflight throughout the SCS, with the exception of occupied features up to a

certain distance, as well as their mainland’s respective 12nm territorial sea zones.

(2) The parties should not establish arbitrary and expansive military exclusion zones

within the SCS around their occupied features, as these could create dangers for

legitimate commercial navigation and overflight.

(3) The parties should openly and expressly commit to the freedom to install and repair

submarine cables and pipelines.

living resources and habitats, and cooperate in

a. Protecting the integrity of fragile marine living resources and habitats

b. Combat illegal trade in endangered marine species

c. Commit to not cause any further damage to marine habitat

(5) The parties should establish working mechanisms and carry out exercising for joint oil

spill response, and search and rescue operations

(6) The parties should create means of direct channels of communication between

operational commanders of military, law enforcement units at sea that may be used

during incidents and potential crisis events.

These interim measures directly address common interests in the SCS regardless of

whether they are in the EEZ, high seas, or otherwise. Some of the foundations have been laid,

such as the Memorandum of Agreement for Cooperation between the Philippine and Chinese

Coast Guard, while others are urgent but remain to be discussed, such as combatting trade in

endangered species and stopping the destruction of marine habitat. But simply addressing

these issues will go some way toward at least conserving and protecting the resources

throughout the SCS and slow down the ultimately self- destructive competition for dwindling

fishery resources.

Likewise, medium-term measures are more difficult, but could provide both parties with a

workable solution to address the question of managing resource activities without prejudice

to the SCS Arbitration Award. One way would be to address fisheries and petroleum

activities within the 12nm enclaves around each qualified feature, sovereignty over which is

admittedly disputed between the parties. Such enclaves would exist even without the SCS

Arbitration Award, and could provide the starting point for joint, or at least coordinated,

management. These 12nm enclaves encompass huge areas of water, often also covering
maritime features subject to fishing by all littoral States. Examples include the Union Banks,

Tizard Banks, Thitu Reefs, and Scarborough Shoal which are large atolls commonly used by

the parties.

Within these areas, the parties should not allow destructive fishing by their own nationals,

and reciprocal access could be permitted, although conditioned upon the use of sustainable

fishing methods. The parties should commit to conserve and protect the marine habitats in the

areas under their control, and allow scientific monitoring and assessment of the health of such

habitats to a central repository accessible to all parties. Areas commonly used by the parties

should also be subject to reciprocal and cooperative monitoring based on a standard

assessment template. A system of documentation of destructive methods and reporting to the

flag State should be established, allowing littoral States to report infractions to the flag State

for the latter’s action. Reports on actions taken against infraction should be made available to

all.

Joint exploration and development for petroleum resources may be undertaken through a

treaty framework that either (a) considers the entire SCS, not only the areas claimed by the

littoral States, but excluding territorial seas and archipelagic waters, as a maritime common,

or (b) reciprocally provides access to both parties’ undisputed continental shelf areas. This

means a reciprocal stake in the exploration and development of petroleum resources by ALL

littoral States and ANYWHERE in the SCS, not just the continental shelf of the Philippines.

Even if specific projects will operate in a specified location, the arrangement should

theoretically enable joint development even on the Chinese side of the SCS as a measure of

reciprocity and mutuality in interests. Reciprocity is a basic condition of fairness necessary

for any joint development proposal to be acceptable. In addition, any treaty framework must

ensure transparency through clear terms and conditions, and must include an express

“without prejudice” clause covering all activities of the parties.

agreement, which is currently allowed under the Philippines’ offshore petroleum

development law. Such an agreement would need to depart from the existing standard service

contract, incorporating special features such as (most importantly) the “without prejudice”

clause, the sharing formula, distribution of taxes, applicable laws for employment, benefits,

dispute-resolution, and contract. And again, such a special agreement must be transparent and

contain clear terms and conditions. This, however, will require a special law. In any case, any

joint exploration and development scheme must be expressly described as an Agreement of a

“practical” nature, having no implications on the respective legal positions of the parties.

Despite China’s refusal to acknowledge the award, its rulings are legally binding on both

China and the Philippines. Any joint exploration and development on the Philippine

continental shelf, given the Duterte’s administration’s insistence that it is not giving up the

Award, can only be justifiable as a purely political accommodation at best, not an act

pregnant with legal meaning. If both parties are as sincere as they both claim to be in

pursuing joint exploration and development to improve relations without backing down from

their respective claims, then they should acknowledge that this effort is due to expediency

rather than legality.

Sources:

United Nations Convention on the Law of the Sea (UNCLOS)

https://www.lawfareblog.com/south-china-sea-dispute-brief-history

https://www.philstar.com/business/2012/01/27/771214/issues-and-challenges-west-

philippine-sea-dispute

https://www.cfr.org/global-conflict-tracker/conflict/territorial-disputes-south-china-sea