Legal moves turn South China Sea into a public image battleground

Recent clashes between China and the Philippines over the Second Thomas Shoal have heightened tensions in the South China Sea. The Philippines has maintained a presence there since 1999 by stationing a small contingent of marines on the BRP Sierra Madre, a deliberately grounded World War II-era ship symbolising its claims over the area.

China also claims the shoal based on its nine-dash line. It has taken actions to prevent the Philippines from turning the shoal into a military base and attempted to prevent resupply boats from the Philippines from reaching the Sierra Madre.

In response to Chinese actions, the Philippines has lodged diplomatic protests and sought to bolster its military and logistical capabilities. The Philippine government has reiterated its commitment to maintaining its presence at Second Thomas Shoal and has called for international support. Meanwhile, China has accused the Philippines of staging incidents to gain more international attention and sympathy.

The Philippines has taken further actions that add to the complexity of the South China Sea status quo. While there haven’t been any official announcements regarding initiating new arbitration hearings against China, reports suggest there have been discussions to that end.

The Philippines might seek arbitration to challenge specific Chinese actions it sees as illegal. Additionally, the Philippines might aim to highlight concerns about potential environmental damage from Chinese activities on the seabed.

On June 14, the Philippines requested that the Commission on the Limits of the Continental Shelf (CLCS) – an international body established under the United Nations Convention on the Law of the Sea (Unclos) – recognise that the outer limits of its continental shelf extended beyond 200 nautical miles in the West Palawan region. Although the CLCS lacks enforcement power, it provides recommendations by reviewing the technical details of a country’s extended continental shelf claims.

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This dual approach of seeking arbitration and submitting claims to the CLCS reflects the Philippines’ strategy of using international legal mechanisms to uphold its claims and challenge China’s maritime claims in the South China Sea.

However, the timing and effectiveness of these legal actions suggest countries see international law as a tool for public image campaigns, serving both strategic and diplomatic purposes. This is particularly evident in the South China Sea dispute between the Philippines and China.

This approach offers several potential advantages. First, invoking international law lets countries position themselves as adherents to a rules-based international order, garnering support and sympathy from the global community. For the Philippines, framing its claims in the South China Sea through Unclos enhances its moral and legal standing.

The Philippines portrays itself as a law-abiding and responsible actor on the world stage, strengthening its negotiating position. The narratives of China’s bullying behaviour and environmentally damaging activities resonate strongly with domestic and international audiences. This boosts the image of Filipino leaders as courageous individuals willing to confront a powerful nation.

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Chinese and Philippine ships clash in first incident under Beijing’s new coast guard law

Chinese and Philippine ships clash in first incident under Beijing’s new coast guard law

The central legal issue revolves around the relationship between Unclos as treaty law, which the Philippines emphasises, and historic rights as customary international law, upon which China bases its claims. However, China’s side of the story can sometimes go unheard within the international community.

Second, there is the notion that international law provides smaller or less powerful countries with a platform to challenge larger, more powerful adversaries. By emphasising its commitment to principles and international norms, the Philippines aims to offset China’s economic and military strength. The 2016 arbitration panel ruling in the Philippines’ favour seemed to send a message how legal recourse can amplify the voice of smaller nations.

Meanwhile, China finds itself in a weakened position before the international community. Its decision to walk away from the arbitration proceedings undermined the legitimacy of its legal maritime claims. Consequently, China is portrayed as a major state seeking to exert its military and economic power over smaller states.

Furthermore, the strategic use of international law can shape international opinion and influence foreign policy decisions of other states. By highlighting China’s non-compliance with international rulings, the Philippines is swaying global opinion and potentially encouraging other nations to support its stance, isolating China diplomatically.

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However, is the Philippines truly pursuing a legal outcome? The procedures of the Philippines’ submission to the CLCS are beyond question. Any coastal state that has ratified Unclos has the right to submit applications to the CLCS. Similarly, China sent a note verbale on June 18 to the United Nations secretary general, arguing that any submissions regarding the disputed waters in the South China Sea should not be considered.

Meanwhile, using international law as a tool for public image campaigns has its limitations. Countries could be accused of hypocrisy if they invoke international law only when it is convenient. The complexity and interpretative nature of international law allow countries to manipulate legal arguments to fit their narratives.

Additionally, international law often lacks robust enforcement mechanisms, meaning victories in courts or tribunals might not translate into real change on the ground. The outcome of the 2016 arbitration did not make a meaningful contribution to resolving the main issues between the Philippines and China but instead further escalated tensions.

Another implication is whether China will turn to international litigation or arbitration to pursue its maritime claims. Will China’s conventional approach of bilateral negotiations and consultations remain its preferred method for settling interstate disputes?

Alternatively, will it come to accept that third-party dispute resolution has a pivotal role to play in resolving issues with neighbouring countries? The Philippines’ legal manoeuvring could prompt China to re-evaluate its usual approach to resolving maritime disputes in the South China Sea.

Nong Hong, PhD, is executive director and senior fellow at the Institute for China-America Studies in Washington, US, and a senior fellow with Beijing Club for International Dialogue

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