The following article was published in the May 2023 issue of the International Review of Contemporary Law, the journal of the IADL.
A PHILIPPINE PERSPECTIVE ON THE SITUATION IN THE SOUTH CHINA SEA FROM 2019 TO THE PRESENT
Frank Lloyd Tiongson*
The release of the Ruling in July 2016 of The Hague-based Arbitral Tribunal on the Philippine’s case against China concerning the latter’s sweeping claims over 90% of the South China Sea (SCS) was a watershed moment in the history of the SCS dispute. It propelled long-standing calls for a rules-based order in the waters in the face of China’s aggressive militarization of the region, the corresponding interventions of extra-regional powers, and constant employment of gray-zone tactics in cases of confrontations. However, the Ruling was met with a lukewarm response by the administration of former Philippine President Rodrigo Duterte who assumed office in 2016 and thereafter pursued a policy of appeasement towards China in exchange for billions of dollars in investments and assistance.
Failure to deliver
Duterte’s policy of appeasement towards China, however, had proven to be ineffective not only in hampering China’s expansionist project in the South China Sea, but also in delivering the economic benefits pledged to result from the said policy, leading to a seeming cooling off of relations in 2019 when the Philippines’ Department of Foreign Affairs reported lodging multiple diplomatic protests against unabated Chinese incursions in Philippine territorial waters as well as its exclusive economic zone (EEZ).[1]
Speaking before the United Nations (UN) General Assembly in September 2020, Duterte asserted that the 2016 Arbitral Ruling “is now part of international law, beyond compromise and beyond the reach of passing governments to dilute, diminish or abandon” and that the Philippines “reject(s) attempts to undermine it”.[2]
However, this apparent change in attitude was short-lived as Duterte, in May 2021, described the 2016 Ruling as “just a scrap of paper” that he could throw in the wastebasket.[3] In the same speech, he harked back on the supposed economic assistance that China extended to the Philippines as a source of the country’s debt of gratitude (utang na loob).[4]
It was not until the tail-end of Duterte’s administration that the purported Chinese largesse behind the Philippines’ softened stance against Chinese incursions in the country’s territorial waters and EEZ were demystified as mere pledges. Transportation officials, in the first few months of the administration of current Philippine President Ferdinand Marcos, Jr., reported that loan negotiations for three big-ticket rail projects in the Philippines have been scrapped after Beijing failed to act on the former’s applications.[5] Negotiations for these loans began in 2018 and was envisioned to be funded mainly by official development assistance (ODA) loans from China, which pledged up to $24 billion in investments during Duterte’s first visit to Beijing in 2016.[6] While the Marcos Jr. government sought to revive stalled projects worth $5 billion, it has also expressed concerns over more onerous loan terms with China compared to those imposed by alternative creditors such as Japan.[7]
Notably, in the twilight months of the Duterte administration, the Philippine government terminated talks with China over joint oil and gas assets exploration in the Philippine’s EEZ. Former Philippine Foreign Affairs Secretary Teodoro Locsin admitted that the talks were stymied by constitutional constraints and sovereignty issues.[8] He noted, “We got as far as it is constitutionally possible to go. One step forward from where we stood on the edge of the abyss is a drop into constitutional crisis.” Philippine maritime law expert Jay Batongbacal remarked that the scrapped negotiations “show the lack of a sufficient common ground for the two countries to agree on basic principles and mutually-acceptable foundations for joint development”.[9] He added, “Despite the Philippines’ openness to explore joint development, China apparently insists on the former surrendering its rights and changing its legal position while China preserves its own”.[10]
Changing courses
Backed by the political clout of Duterte in his campaign for the presidency, Marcos Jr. was expected by observers to continue pursuing the former’s soft-pedal approach towards China in relation to its incursions and military buildup in the West Philippine Sea (WPS) – coined by the Philippines to refer to its EEZ in the SCS region. This seemed to be the case initially as Marcos Jr., a few weeks before his presidential inauguration, referred to China as the Philippine’s “strongest partner” in its efforts to recover from the COVID-19 pandemic.[11]
Philippine political observer Richard Heydarian, however, wrote: “Despite these early indicators, Marcos Jr. has in fact adopted a far more uncompromising position on the South China Sea disputes while pressing Beijing on unfulfilled investment pledges. Crucially, the new Filipino leader has overseen a revival of frayed ties with traditional partners, especially the United States. If anything, the new administration in Manila has welcome expanded security cooperation with Washington on shared regional concerns, including the Fourth Taiwan Straits crisis.”[12]
To cite, in the sidelines of the September 2022 UN General Assembly, Marcos Jr. met with United States (US) President Joe Biden where the former assured the latter that the Philippines would remain as the US’ ally in “maintaining the peace in Asia” as they discussed the situation in the SCS and “underscored their support for freedom of navigation and overflight, and the peaceful resolution of disputes” in the region.[13]
Aside from rejuvenating ties with Washington, Marcos Jr. also appears to look towards enhancing cooperation with the Philippine’s neighbors with respect to the situation in the SCS. In a September 2022 state visit to Indonesia, Marcos Jr. inked key agreements with his Indonesian counterpart, Joko Widodo, including renewing a 1997 Agreement on Cooperative Activities in the Field of Defense and Security amid the “very volatile” geopolitical dynamics in the region.[14] Similarly, in Singapore, Marcos Jr. and Singaporean Prime Minister Lee Hsien Loong signed a joint statement likewise in September 2022 reiterating the Association of Southeast Asian Nation’s (ASEAN) position on the SCS and reaffirming “the importance of maintaining peace, security, stability, safety, and freedom of navigation and overflight in and above the South China Sea”.[15]
During the recent ASEAN Summit held in Cambodia, Marcos Jr. also appeared to advocate for the reassertion of “ASEAN Centrality” in defining the security architecture in the region, including the SCS. “This [is] in the face of geopolitical dynamics and tensions in the region and the proliferation of Indo-Pacific engagements including the requests of our dialogue partners for closer partnerships.”[16] Meanwhile, he welcomed the purported support of the Quadrilateral Security Dialogue (Quad), a strategic security dialogue between Australia, India, Japan, and the US, to the idea of ASEAN Centrality. “We regard as of primary import Quad’s assurance of unwavering support for ASEAN unity and Centrality with the view that such minilateral mechanisms should complement the ASEAN-centered regional security architecture,” he said.[17]
Marcos Jr.’s rhetoric is set to be put to the test as he is set to meet with Chinese President Xi Jinping, recently elected by the Chinese Communist Party to a precedent-breaking third term as China’s leader, in a confirmed state visit to Beijing in January 2023. En route to the ASEAN Summit in Cambodia, Marcos, Jr. had declared that it would be “impossible” for him not to discuss the SCS issue when he meets with Xi.[18]
Testing waters
Whatever the outcome of Marcos, Jr.’s interventions on the SCS issue and the Philippine’s apparent rebalancing of policy pertaining to its long-standing disputes with China, it will be tested on the basis of how the country will navigate recent significant developments in the SCS, namely, the enactment in 2021 by China of its new Coast Guard Law and the efforts of several coastal states in the SCS, including the Philippines, to exploit the maritime resources within their respective EEZs.[19]
Article 22 of China’s Coast Guard Law, which entered into effect on 01 February 2021, empowers the Chinese Coast Guard to “take all necessary measures, including the use of weapons, when national sovereignty, sovereign rights, and jurisdiction are being illegally infringed upon by foreign organizations or individuals at sea”.
The Philippines, through Locsin, its former Foreign Affairs Secretary, remarked: “While enacting law is a sovereign prerogative, this one – given the area involved, or for that matter the open South China Sea – is a verbal threat of war to any country that defies the law.”[20] Retired Philippine Supreme Court Associate Justice Antonio Carpio, a staunch critic of China’s posturing in the SCS, noted that the Coast Guard Law violates the 1945 UN Charter, which prohibits the threat or the use of force to settle disputes among states, and UNCLOS, which mandates that “States Parties shall settle any dispute concerning the interpretation or application of this Convention by peaceful means”.[21] Other states and international legal experts have likewise condemned China’s Coast Guard Law for constituting a breach of the United Nations Convention on the Law of Sea (UNCLOS) and exacerbating tensions not only in the SCS, but also in the East China Sea.
Carpio, meanwhile, underlined the recent efforts of several coastal states, including the Philippines, to exploit the maritime resources within their respective EEZs as a significant development in the SCS. In May 2020, Malaysia sent a survey ship to explore in its EEZ off the coast of Borneo in an area falling within China’s nine-dash line despite warnings from China not to proceed with exploration. To secure its survey ship and its crew, Malaysia had the vessel accompanied by its coast guard and navy vessels while three US warships and an Australian frigate conducted naval drills nearby.[22] Subsequently, Malaysia in 2021 sent its drilling ship to the same spot. Despite almost daily harassments from Chinese coast guard vessels the drilling was completed by the Malaysian vessel, which was still accompanied by its coast guard and navy. In mid-2021, meanwhile, Indonesia sent its drilling ship to drill test wells in its EEZ off the coast of Natuna Islands also within China’s nine-dash line. A four-month standoff ensued between the coast guard and navies of Indonesia and China, but the Indonesian vessel managed to complete its undertakings.[23]
In contrast, in spite of the dire need for the Philippines to explore new sources of natural gas in the face of the depleting reservoirs of the Malampaya Gas Field – projected to be exhausted within three to five years – its service contractor engaged to look for new sources was effectively prevented to do so by China’s harassment based on a 25 June 2022 statement released by the Philippine’s Department of Energy (DOE).[24] The Malampaya Gas Field supplies 40% of the energy requirement of Luzon, the largest island of the Philippine archipelago. The US Geological Survey estimates that Reed Bank holds up to 5.4 billion barrels of oil and 55.1 trillion cubic feet of natural gas.
The pronouncement of the Philippine’s DOE that it has lifted the moratorium on all gas explorations in the WPS and the impending resumption of exploration activities in the area is, thus, bound to test not only the mettle of Marcos Jr.’s recent rhetoric on the SCS, but also how he will concretely navigate through an expected confrontation with China which is armed with a spurious Coast Guard Law that authorizes the use of force to assert its invalidated sovereign claim over the WPS.
A question of interests
More importantly, whose interest is Marcos Jr. promoting as he engages in a rebalancing of the Philippine’s position in the SCS issue by revitalizing alliances frayed during the Duterte regime, by advocating for ASEAN Centralism in resolving long-standing disputes in the SCS, and by calling on extra-regional parties’ support? Is it a case of favoring one party in a geopolitical rivalry with the hope of garnering concessions from its Indo-Pacific pivot? Or is it a case of asserting the interests of the Filipino people who stand to benefit from the economic benefits of a stable, rules-based regime in the SCS, maintained by principled and mutually beneficial partnerships with regional stakeholders?
While Marcos Jr., according to Carpio, is purportedly “saying the right things” with regards to the situation in the SCS, he has yet to “walk the talk”.[25] For what the shift in policy suggests is that the Philippines has hardly any institutionalized position on the SCS issue despite being the prevailing party in the Philippines v. China arbitral ruling of 2016 and that its policy on the same issue is largely driven by geopolitical shifts and political-economic exigencies. So long as such is the case, the Philippine position will always remain tentative and tenuous until the country finally looks inward and advances the interest of its own people in the maintenance of peace and security in the disputed seas in partnership with neighboring stakeholders in the spirit of regional self-reliance.
* National Union of Peoples’ Lawyers (NUPL), The Philippines
[1] Helen Flores and Paolo Romero, Diplomatic protest filed over Chinese warships, Philstar.com (20 August 2019),
available from: https://www.philstar.com/headlines/2019/08/20/1944894/diplomatic-protest-filed-over-chinese-warships.
[2] Jelly Musico, Duterte affirms arbitral ruling on SCS before UN General Assembly, Philippine News Agency (23 September 2020), available from: https://www.pna.gov.ph/articles/1116296.
[3] Genalyn Kabiling, Arbitral ruling on West PH Sea just a scrap of paper, Duterte says, Manila Bulletin (06 May 2021), available from: https://mb.com.ph/2021/05/06/arbitral-ruling-on-west-ph-sea-just-a-scrap-of-paper-duterte-says/.
[4] Id.
[5] Tyrone Jasper Piad, PH scraps China loan deals for Duterte rail projects, Inquirer.net (16 July 2022), available from: https://newsinfo.inquirer.net/1628804/ph-scraps-china-loan-deals-for-duterte-rail-projects.
[6] Richard Javad Heydarian, In a reset, Marcos scraps Duterte’s China loans, Asia Times (19 July 2022), available from: https://asiatimes.com/2022/07/in-a-reset-marcos-scraps-dutertes-china-loans/.
[7] Id.
[8] Philippines abandons joint energy exploration talks with China, Nikkei Asia (23 June 2022), available from: https://asia.nikkei.com/Business/Energy/Philippines-abandons-joint-energy-exploration-talks-with-China.
[9] Pia Ranada, Scrapped West PH Sea oil talks with China give Marcos ‘clean slate’, Rappler.com (27 June 2022), available from: https://www.rappler.com/nation/scrapped-west-philippine-sea-oil-talks-china-gives-marcos-jr-clean-slate-lesson/.
[10] Id.
[11] Dexter Cabalza and Kathleen de Villa, et al., China ‘strongest partner’ in PH recovery – Marcos, Inquirer.net (12 June 2022), available from: https://newsinfo.inquirer.net/1609451/marcos-china-strongest-partner-in-ph-recovery.
[12] Richard Heydarian, Marcos Jr. and ASEAN: Minilateralism in the South China Sea, Asia Maritime Transparency Initiative (18 October 2022), available from: https://amti.csis.org/marcos-jr-and-asean-minilateralism-in-the-south-china-sea/.
[13] Dona Z. Pazzibugan, Biden raises rights, Marcos cites security, vax aid, Philippine Daily Inquirer (24 September 2022), available from: https://globalnation.inquirer.net/207250/biden-raises-rights-marcos-cites-security-vax-aid.
[14] Resty Woro Yuniar, An eye on China? Indonesia, Philippines set to boost ties amid ‘very volatile’ regional geopolitics, South China Morning Post (05 September 2022), available from: https://www.scmp.com/news/world/russia-central-asia/article/3199454/russia-says-west-seeking-militarise-southeast-asia?module=perpetual_scroll_2&pgtype=article&campaign=3199454
[15] Anna Felicia Bajo, Philippines, Singapore reaffirm keeping peace, stability in South China Sea, GMA News Online (07 September 2022),
available from: https://www.gmanetwork.com/news/topstories/nation/844050/philippines-singapore-reaffirm-keeping-peace-stability-in-south-china-sea/story/.
[16] Bea Cupin, SUMMARY: Marcos’ interventions at the ASEAN Summit in Cambodia, Rappler.com (12 November 2022), available from: https://www.rappler.com/nation/summary-marcos-interventions-2022-asean-summit-cambodia/?cx_testId=2&cx_testVariant=cx_1&cx_artPos=0&cx_experienceId=EX4CPN0G1RJL#cxrecs_s.
[17] Supra note 16.
[18] Ruth Abbey Gita-Carlos, PBBM set to visit China in January 2023, Philippine News Agency (11 November 2022), available from: https://www.pna.gov.ph/articles/1188360.
[19] Antonio Carpio, Recent developments in the South China Sea: Perspective from the Philippines, Rappler.com (11 November 2022), available from: https://www.rappler.com/voices/thought-leaders/analysis-recent-developments-south-china-sea-perspective-from-philippines/.
[20] Jim Gomez, Philippines Protests China’s New Coast Guard Law as ‘Verbal Threat of War’, The Diplomat (28 January 2021), available from: https://thediplomat.com/2021/01/philippines-protests-chinas-new-coast-guard-law-as-verbal-threat-of-war/.
[21] Supra Note 19.
[22] Id.
[23] Id.
[24] DOE Statement on the Announcement of the Termination of Joint Oil and Gas Negotiations with China, Department of Energy (25 June 2022), available from: https://www.doe.gov.ph/press-releases/doe-statement-announcement-termination-joint-oil-and-gas-negotiations-china?withshield=1.
[25] Ivel John Santos, Carpio urges Marcos to protect Philippine oil exploration vessels in Recto Bank, Vera Files (10 November 2022), available from: https://verafiles.org/articles/carpio-urges-marcos-to-protect-philippine-oil-exploration-vessels-in-recto-bank.
All articles published in the International Review of Contemporary Law reflect only the position of their author and not the position of the journal, nor of the International Association of Democratic Lawyers.