Trial of the Century: Philippines vs. China in the South China Sea


In the coming days, an obscure arbitral tribunal, constituted under the auspices of the United Nations Convention on the Law of the Sea (UNCLOS), is expected to issue a final ruling on the Philippines’ complaint against China’s expanding (military and civilian) footprint across the world’s most important waterway, the South China Sea. As I argue in my latest book, Asia’s New Battlefield, the next great power clash will most likely happen in this highly strategic maritime route.

Let’s put things into perspective. In the last two years, China has reclaimed 3200 acres (1,295 hectares) of land to build gigantic artificial islands across the Spratly chain of islands, giving birth to a sprawling network of civilian and military installations across the disputed waters. Singlehandedly, China in recent years has reclaimed almost two dozen times more than all other claimant states combined in the past half-a-century. And nothing compares to China’s futuristic and highly sophisticated artificially-built islands in the high seas.

China is even more dominant in other portions of the disputed waters. Its control of the Paracel chain of islands is a fait accompli, while the Pratas chain of islands are under the administration of what Beijing considers as a renegade province, Taiwan, which will likely be eventually reincorporated into a Greater China. There are reports that China may soon also establish military facilities on the Scarborough Shoal, which lies just 200 kilometres away from Philippine shores but a whopping 900 kilometres away from nearest Chinese coastline. There are concerns that China may soon establish an exclusion zone in the area.

The sheer scale, speech and technological sophistication of China’s reclamation activities, the ever-larger deployment of Chinese fishermen-cum-militia forces, stationing of advanced military hardware like high-frequency radars and surface-to-air-missile systems, the augmentation of Chinese coast guard, submarine and naval presence in the area, not to mention an uptick in Chinese aerial interception of foreign reconnaissance aircrafts in the South China Sea – they all underscore Beijing’s intent on dominating what it describes as its blue “national soil”.

Soon, China may be in a position to establish an “exclusion zone” in the area, imperilling freedom of overflight and navigation for regional and external military forces in the area.

Four centuries after the publication of British jurist John Selden’s The Closed Sea (Mare clausum), which argued for exclusive sovereign control of international waters, Beijing is inching closer to transforming the South China Sea— which handles up to a third of global maritime commerce, four times as much energy transport as the Suez canal, and more than a tenth of global fisheries stock—into what some would call a virtual Chinese lake.

“The Sea, by the Law of Nature or Nations, is not common to all men, but capable of private Dominion or proprietie as well as the Land,” Selden wrote in the The Closed Sea (Mare clausum) in 1635. It was a direct rebuttal of Dutch Jurist Hugo Grotius’ influential book, The Free Sea (Mare Liberum), which served as the foundation of modern international law, particularly the United Nations Convention on the Law of the Sea (UNCLOS).

For Grotius, high seas are global commons that, by their very nature, should be accessible to the entire humankind on a non-exclusive basis. And this is precisely what the Philippines’ arbitration case is all about: Preserving shared and rule-based access to global commons such as the South China Sea. It is about ensuring the modern principle of ‘rule of law’ against the ancient principal of ‘might makes right’.

Perturbed by the prospect of an embarrassing legal setback, China has embarked on a systematic effort to delegitimise the Philippines’ arbitration case and misrepresent its nature. Beijing has lashed out at the arbitration proceedings and, in a comically desperate fashion, has sought to undermine the legitimacy of the arbitration body by setting up its own international courts and (supposedly) rallying up to sixty countries, mostly poor and many landlocked, to question the Philippines’ arbitration manoeuvre.