Currently there is a political and legal tiff between the Philippines and China regarding the continuous presence of a swarm of fishing boats near China-claimed Zhōngyè Dǎo but Philippines-occupied Pag-asa — also known as Thitu. Some think this is in response to Philippine efforts to upgrade its facilities there. This tiff is significant because the process and the outcome may set a legal and political precedent for their relationship regarding their many other disputes in the South China Sea and others’ disputes as well.
The Philippines and China have territorial, jurisdictional and behavioral disputes in the South China Sea. The Philippines filed a complaint against China under the UN Convention of the Law of the Sea. The panel set up under the Treaty ruled against China regarding its historic claim to maritime space there. It also ruled that none of the features in the Spratlys are legal islands capable of generating a 200 nautical mile (nm) Exclusive Economic Zones (EEZ). It further determined that several of the features that were built up and occupied by China — including Mischief Reef and Subi — are low tide elevations and not claimable as territory by any nation. However, the panel did not rule on sovereignty disputes over high tide elevations. The claims of China to them remain just as valid — or invalid — as those of the Philippines and other claimants.
According to the Philippines, the presence of about 275 Chinese vessels near Thitu between January and March 2019 violated its “sovereignty, sovereign rights, and jurisdiction”. It filed a diplomatic protest to this effect. Joseph Felter, US Deputy Assistant Secretary of Defense for South and Southeast Asia said, “China’s activities are of concern. It seems to be somewhat aggressive and provocative and we feel that they’re unnecessary and unwarranted.” The West and its media have painted this particular situation as a clear case of Chinese “intimidation” of the Philippines. But the situation is much more complicated.
Thitu is an above high tide feature — meaning that it is a legal rock and entitled to a 12 nm territorial sea. China claims and occupies Subi Reef — about 16 nm to the west. It is a low tide feature not entitled to a territorial sea [see map]. Indeed, it cannot be claimed as “territory” by any nation.
Source: CNN Philippines
That means that China’s sovereignty claim to it is invalid and that Subi lies within the Philippines EEZ and on its continental shelf. But Subi also lies within the territorial sea of Sandy Cay — three high tide sandbars between Thitu and Subi. In effect, Sandy Cay extends the territorial sea of Thitu by another 12 nm. Both China and the Philippines claim these sandbars outright as their sovereign territory, and because they are situated within Thitu’s 12 nm territorial sea.
If China were the sovereign of either Thitu or Sandy Cay, or both, it would validate both its claim and occupation of Subi. But if China gains sovereignty over these sandbars, the Philippines then will lose much of its claimed territorial sea to the west of Thitu because the median line between the sandbars would be the theoretical legal boundary. China may be taking these actions to demonstrate its sovereignty over Sandy Cay and only indirectly, involves Thitu.
In 2017, the Philippines began to build fishermen’s shelters on these sandbars. China objected and Philippines President Rodrigo Duterte ordered the shelters to be dismantled and the construction to stop. The reason was that the nonbinding 2002 ASEAN-China Declaration of the Conduct of Parties in the South China Sea (DOC), which is still operative as the parties try to negotiate a more formal binding Code, forbids “inhabiting on the presently uninhabited islands, reef, shoals, cays...” China claimed that the Philippines had violated this agreement. China may have feared this was about to happen again and formed a fishermen’s “blockade” to prevent the access of Philippine fishermen to Sandy Cay, and from fishing in what it considers its territorial waters emanating from it.
So, this current dispute may not be directly about sovereignty over Thitu or even the Philippines construction activity there. Nevertheless, the latter might be considered a violation of the DOC that stipulates that the parties will “exercise self restraint that would complicate or escalate disputes and effect peace and stability,” and its November 2018 reaffirmation by Duterte and China President Xi Jinping. Moreover, China may have tried to prevent the construction there because it feared that the Philippines would allow the US military to use it.
China is wrong to allow its fishermen to fish in the Philippines EEZ without its permission and to harass or block Philippine fishermen from fishing there. This violates the international arbitration panel ruling and the DOC. But if China’s vessels are exercising “freedom of navigation” in the Philippines’ EEZ, including anchoring, that is legal — if provocative — like US’ activities in China’s EEZ. Moreover, there are other possible explanations for the massing of China’s fishing vessels in the area. But it appears that the massing and harassment is taking place within the 12 nm territorial sea around Thitu or Sandy Cay. That means it is a territorial dispute and both have the right to defend their claims. But their behavior should be restrained as agreed in the DOC.
So far this has been an uneasy standoff. But there are several things that could go wrong. If China attempts to blockade, or worse, “attack” Philippine troops and civilians on Thitu, it would likely draw an equally confrontational and aggressive response from the Philippines and perhaps the US. Observers suggest that the US was sending this message when it sailed a fighter-jet carrying warship — the USS Wasp — in the vicinity of disputed Scarborough Shoal during the recent US-Philippines Balikatan exercises.
But this is highly unlikely. China’s leaders are neither that impulsive nor impatient.
If either the Philippines or China were to try to occupy the Cays, Duterte would come under tremendous pressure from his opposition to do something to either defend its fishermen or prevent China from occupying the features. Apparently Philippine navy vessels and aircraft patrol the area. If Chinese militia, or worse, Chinese coast guard or naval assets were to clash with or harass Philippine naval assets or soldiers there, this could trigger a call for US military assistance. US Secretary of State Mike Pompeo has famously declared to the Philippines that “we have your back” in the South China Sea. Moreover, the US Navy has hinted that in certain circumstances it will treat China’s maritime militia as naval vessels. US Admiral John Richardson, Chief of Naval Operations, has called for a “more muscular” approach to countering China’s use of paramilitary force. As Randall Shriver, Deputy Assistant Secretary of Defense for East Asia, says “We are more interested in what the activity is and what the mission is of a particular hull, not the color it is painted.” However, it should be remembered that the US takes no position on conflicting territorial claim in the South China Sea and this presumably includes territorial seas around disputed territories.
Duterte has warned Beijing to leave Thitu alone and threatened military action in response to any Chinese aggression. But so far, the Philippines has taken a measured approach, perhaps reflecting the complications of the issue. According to Presidential Spokesperson Salvador Penelo, “We will ask them first, if they acknowledge such fact as determined by us. Number 2, ask them why they are doing it. Number 3, we will politely ask them not to… not to do what they are doing.” As British China expert Tim Collard suggests, “If the region comes to fear that expressions of friendship with China will be seen as weakness and attract aggressive behaviour… it will only increase tensions in the long term and may lead to the involvement of other major powers”. So, the stage is set for compromise or conflict. The choice is in the hands of leadership in Beijing and Manila. Meanwhile, the outcome and any precedents set are being carefully watched in all concerned countries.