Despite the determination by an Arbitral Tribunal that China’s claim over the South China Sea is not valid, China continues to assert itself over the West Philippine Sea. Given the current conditions, what are the measures that may be taken by the Philippines to resolve the issue?



Considering that the use of force and even the threat of use of force are prohibited under international law, steps to resolve issues with China will involve peaceful agreements, diplomacy, petitions to International Organizations such as the UN, and pleas to the international community. International Law is largely power. Hence, steps to settle the issue on the West Philippine Sea will also depend on how the Philippines will assert its sovereignty.



The dispute over the South China Sea involves several countries that lay different claims over the area. The issue in which the Philippines has a particular interest involves China’s continued exploitation of the Spratly Islands and the Scarborough Shoal which fall within Philippine territory or that area referred to as the West Philippine Sea. “The South China Sea is a semi-enclosed sea in the western Pacific Ocean, spanning an area of almost 3.5 million square kilometres. The South China Sea lies to the south of China; to the west of the Philippines; to the east of Vietnam; and to the north of Malaysia, Brunei, Singapore, and Indonesia. The South China Sea is a crucial shipping lane, a rich fishing ground, home to a highly biodiverse coral reef ecosystem, and believed to hold substantial oil and gas resources.”[1]


China claims about 90% of the South China Sea based on a map that shows what is referred to as the nine-dash line. Under customary international law and the 1982 United Nations Convention on the Law of the Sea (UNCLOS), what is claimed by China “far exceeds what is claimable as territorial waters and includes waters that are within the claimable Exclusive Economic Zones (EEZs) of the Philippines, Malaysia, Brunei, and Vietnam.”[2] China asserts that it has sovereignty over the disputed area. China has aggressively exploited living and non-living resources in the area. The Philippines became involved when it became evident that China was becoming a threat to the right of the Philippines, even to the lives of Filipino fishermen, in utilizing the resources found within the West Philippine Sea.


Justice Carpio gave five options that the Philippines could have pursued, albeit in vain, to settle the issue with China:


First was to send naval vessels and marines to retake Scarborough Shoal. This was not feasible because of the superior Chinese naval forces.

Second was to file a diplomatic protest with China. This was useless because China would simply ignore the protest – as it ignored the protest of the Philippines after China seized Mischief Reef 17 years earlier in 1995.

Third was to ask ASEAN to lobby China to withdraw from Scarborough Shoal. This was not realistic because some ASEAN countries are hesitant to offend China. Besides, ASEAN countries do not take sides on territorial disputes.

Fourth was to take the matter to the United Nations Security Council. This was also futile since China has a veto power in the Security Council.

The fifth and only viable option was to bring the matter to an international tribunal for arbitration, where the playing field would be level and military power would not count, but only the rule of law would govern. Incidentally, the Philippines could also not invoke the Phil-U.S. Mutual Defense Treaty since the U.S. has made it clear that the islands, reefs and rocks in the South China Sea are outside the scope of the treaty.[3]


The rule that applies to dispute over the South China Sea is the UNCLOS. The “UNCLOS is the Constitution for the world’s oceans and seas. UNCLOS codified the then existing customary international law of the sea, created novel entitlements in favor of coastal and landlocked states, and adopted a compulsory dispute settlement mechanism to insure that there is a final authoritative body to interpret and apply its provisions.”[4]  The limitation to the compulsory arbitration is that the UNCLOS covers only maritime entitlements, maritime space and maritime disputes.


The UNCLOS provides that States that have ratified the UNCLOS, such as China and the Philippines, can exclude certain disputes from the settlement mechanism provided under the Convention. “In 2006, China submitted a declaration excluding all disputes that might involve questions of sovereignty and issues of delimitation of maritime boundaries from the procedure of compulsory settlement of disputes specified under Section 2 of Part XV, which is subject to the limitations and exceptions specified under Section 3 of Part XV of the Convention.”[5] For this reason, when the Philippines brought the matter to arbitration in 2013, it had to frame its submissions in a way that did not deal with matters of sovereignty and delimitations.


Although China did not take part in the arbitration proceedings, the tribunal still continued to hear the dispute and eventually rendered a decision.[6] “The tribunal ruled, among other things, that China’s nine-dash line claim had no legal basis and that China violated the Philippines’ sovereign rights by interfering with Philippine vessels and by damaging the maritime environment and engaging in reclamation work on a feature in the Philippines’ EEZ.”[7] Nonetheless, China refused to recognize the ruling. For the Philippines, the arbitration ruling is final.


The significance of the decision is that it declared that there is no basis for China’s exclusive exploitation of the marine resources found in the disputed marine areas. Although the decision did not rule upon sovereign or territorial rights, the decision made clear that China’s claim, specifically the nine-dash line claim, was baseless. The UNCLOS takes precedence over the nine-dash line claim and any claim based on ‘historic rights’.


The difficulty now is the enforcement of the ruling.  China still continues to adhere to its claims of entitlement over the West Philippine Sea. The issue on the West Philippine Sea involves not only China and the Philippines, but the whole international community since the dispute has repercussions on international law as to the law of the sea.



“While it is agreed that UNCLOS has set out a regime on law of the sea which is generally considered as binding on all the parties to it, it is not considered to have status similar to that of the Charter of the UN nor does it have an article comparable to Article 103 of the UN Charter specifying priority for member States of obligations incurred thereunder over obligations contracted or potentially to be engaged under other treaties.”[8] Hence, the Philippines would have to proceed through other means to enforce the ruling. In line with international principles, the probable ways for the Philippines to settle its issues with China would have to involve diplomatic relations. Under the current administration, the Philippines can capitalize on its strengthened ties with China to petition it to recognize the ruling. The Philippines can also appeal to the international community to exact compliance from China in consideration of the effects of its actions on the peace in the international community.


Since there is no international body or executive that can order China to comply with the decision, there is a need for the Philippines to look for other means to strengthen its claims against China. In International Law, international tribunals can work, however enforcement of liability is another thing. Considering that the matter has already gone through arbitration where the parties were given the opportunity to lay out their claims and yet China refused to participate, it then seems unlikely that China would be willing to settle matters amicably. Still, International Law is dependent upon the willingness of States to comply with international obligations. Actions that the Philippines could take to settle its issue with China would have to involve cordial proposals.



Possibility of China’s Compliance

There appears to be a trend of ‘great powers’ or the permanent members of the UN Security Council to reject tribunal rulings as seen in the cases of Nicaragua v. US and Netherlands v. Russia.[9] This brings about the question of whether China will ever comply with the arbitral decision.


     In the Nicaragua case, the International Court of Justice (ICJ) found in 1986 that the US had breached its obligations to Nicaragua for supporting the Contra rebellion against the Sandinista administration and for laying mines in Nicaraguan harbors. The US vowed not to comply. It had already withdrawn from the merits phase of the proceedings (after losing in the jurisdiction phase, which it had participated in), and after the release of the ruling, it further withdrew from the ICJ’s compulsory jurisdiction altogether. Nicaragua went to the UN Security Council to demand the implementation of the ruling, but the US vetoed the proposal. Nicaragua appealed to the UN General Assembly to secure a resolution calling for compliance, and it succeeded. The US Congress eventually aligned itself with the ICJ and cut off funding for the Contra rebels, as required by the ruling, but the US President then, Ronald Reagan, did not – he even continued to extend support covertly. But with the electoral win of George H.W. Bush in 1989 and the electoral defeat of the Sandinistas in 1990, the US subsequently lifted its trade embargo against Nicaragua, also as required by the ruling. It also started giving substantial economic aid, even though it still would not pay Nicaragua a compensation.


In the Netherlands case, the International Tribunal for the Law of the Sea called upon Russia, through a provisional ruling in 2013, to release the Dutch-flagged Arctic Sunrise vessel it had seized from Greenpeace International and the 30 persons onboard it had detained after a protest against oil-drilling in the Arctic. Russia vowed not to comply. It had not participated in the hearings at all and had instituted domestic legal proceedings against the crew for piracy, which was eventually reduced to hooliganism. A month after the release of the ruling, however, the Russian parliament extended the amnesty decree to include those charged with hooliganism, thereby allowing the Russian authorities to drop the charges and release the detainees, as required by the ruling. In 2014, Russia also released the Arctic Sunrise, again as required by the ruling. Nonetheless, Russia still has not paid the Netherlands a compensation.[10]


From the two cases, it is seen that despite the resistance of the States to take part in the arbitration, there is still partial compliance on their part. Despite the initial rejection of the rulings of the tribunals, the ‘great power’ States still performed parts of the decision or acts that ultimately conformed to the tribunal’s decision. Although the actions undertaken by the States were not directly in line with the tribunal’s award, the act shows that even powerful States comply in order to uphold international peace and order. There then is hope that China may align itself with the tribunal’s ruling.  Despite the fact that there is no mechanism through which the arbitration ruling can be enforced, the ruling is still important because it is a basis for the Philippines to obtain some degree of compliance from China. “Exacting a decision from an international court can be a means for states to achieve certain ends.”[11]


China risks of damaging its reputation in the international community if it continues to act in a way that disrupts international peace. Using the arbitration ruling, the international community can pressure China to adhere to the ruling. Although China is a powerful State, no State can survive without diplomatic relations.


As ruled upon by the arbitral tribunal, “the continued perpetration of dispute acts by China even after the dispute was submitted to the tribunal was violative of their obligations under Article 279 and 300 of the UNCLOS.”[12] States are bound by their obligations to International Treaties and Conventions. Although an arbitral award is not international law or is not a source of international law, the basis of the arbitration proceedings was the UNCLOS to which China and Philippines are signatories. China is under obligation to comply in good faith with the action instituted under the Convention. The Philippines can use the arbitral award as a basis for its claims to stand against China.


Finality of the Arbitral Ruling

“An arbitral award, as any decision by an international court or tribunal, does not cast international law in stone.”[13] Article 296 of the UNCLOS clearly provides that the decision by the tribunal is final. However, there are two aspects as to the tribunal’s decision. There is the procedural aspect and the substantive aspect. In the arbitration case at hand, what may be said to have been concluded is the procedural aspect where there is already a final award that is rendered and the arbitration proceedings have been concluded. Nonetheless, it does not necessarily mean that since there is procedural finality there is also substantive finality on the issue involved.[14]


Since the decision is binding only between the parties in respect to a particular dispute, the substantive aspect of the South China Sea Arbitration ruling may still be questioned or reversed.[15] The following are ways by which an arbitral decision may be reversed:


First, by way of international legislation, either by the conclusion of an international treaty or by the creation of a rule of customary international law, which contradicts the finding of an international court or tribunal. An example is the 1927 Lotus Case ruling by the Permanent Court of International Justice which allowed Turkey to also prosecute the French officer. The ruling was reversed in 1952 through a Convention which provided that the flag State has the exclusive jurisdiction to prosecute crimes committed on the high seas.[16]

Second, through contrary State practice. “When interpreting a treaty an international court or tribunal takes into account ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’.”[17]

Third, through subsequent agreements between the parties regarding the interpretation or the application of its provisions.[18]

Fourth, the finality of judicial and arbitral pronouncements can be called into question by other international courts and tribunals or by domestic courts adopting a different view on a certain legal question.[19]


Given that there are still several ways through which the arbitral decision can be questioned, the Philippines should use these venues or means to its advantage instead. Although the ruling is deemed highly in favor of the Philippines, it does not provide the means for it to be enforced. Hence, a situation that would better settle the issue would be more agreeable for both States.


Amicable Resolution

The UN Charter provides that “all members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”[20] Under the current Philippine administration, relations with China are prioritized. It would then be to the interest of the Philippines to settle the matter peacefully. It would also be to the benefit of China to settle the matter since sanctions in international law involve the general welfare of the society of nations, normal habits of obedience, respect for world opinion, constant and reasonable fear of retaliation from other states, and the coercive machinery of the UN. China risks straining its relations with other States if it continues to act untowardly in the West Philippine Sea issue.


Even pending the decision from the arbitration, China had expressed willingness to enter into arrangements, such as joint development, with the states which also have claims in the maritime area.[21] From the attitude of the Philippine administration it can be seen that the preservation and strengthening of ties with China is a priority, hence, a bilateral agreement between the two countries may be the best resolve. International law functions on the willingness of States to cooperate with each other. China may be more agreeable if the issue is dealt with directly with the Philippines. Any agreement or treaty that would be entered into must conform to the requisites of entering into a treaty. Under International Law, a bilateral agreement is in line with the principle of non-intervention wherein States are precluded from interfering from the domestic and foreign affairs of another State. An agreement concluded only between China and Philippines would likely be amenable for China since it would be dealing solely with the Philippines without any intervention from other States. The Philippines should continue to pursue an undertaking with China on terms that are fair for both parties.


“Compromise is possible because pressing a claim to another state’s land carries some price or opportunity cost, usually unrealized military, economic or diplomatic assistance. When these costs outweigh the value of the land at stake, compromise becomes more attractive than delay, and a state will trade concessions for aid from a territorial opponent to counter the more pressing threat that it faces. In the South China Sea, China should be most likely to compromise when improved ties with claimant states become more important than the islands or maritime rights being contested.”[22]


Multilateral Joint Development Zone Agreement

Using the Svalbard Treaty of 1925 as a model for an agreement between the claimants over the South China Sea as to a multilateral joint development, the following is proposed:[23]


    1. A non-claimant state would be designated as the administrator (or trustee) over the zone. Indonesia, given its stature in ASEAN, might be suited for doing this.
    2. All countries that have occupied high-tide features in the zone would be allowed to remain; however, they would replace all military occupiers with civilians. Military equipment would be removed.
    3. All structures built on fully submerged and low-tide elevations would be dismantled.
    4. The four parties would mutually agree to not assert territorial claims around any feature except that each occupier would have the right to establish 500-meter safety zones around each island/feature for safety of navigation purposes.
    5. The trustee would allow each of the four claimant states to fish anywhere in the disputed area and be the sole licensee of any fishing.
    6. Licensing would be based on current FAO standards to ensure sustainment of regional fishing stocks. Each one of the claimants would be entitled to 25 percent of the catch.
    7. Mining in the area would also follow the “25 percent” formula.
    8. Oil and gas prospecting would be licensed by the administrator on a strictly competitive basis. The “25 percent” formula would be applied to any royalties received.
    9. The administrator (Indonesia) would be the only state permitted to have permanently based military forces in the area, in order to enforce the terms of the agreement.
    10. The United States and EU would provide security guarantees to Indonesia in the event that any of its forces came under attack.
    11. The agreement would enter into force by agreement among three of the four countries and any outlier’s share would be held in escrow by the administrator.[24] 

Although a multilateral agreement may entail the loss of some of exclusive rights of exploitation, the preservation of international peace and maintenance of harmonious relations between States must also be taken into account. Any kind of arrangement that would be entered into must bring about a system that is beneficial to all the States in accordance with the principle of par in parem non habet imperium. The States must be able to come to agreement under terms where all States involved deal with each other on equal footing.


As to the Scarborough Shoal, since it falls within the Philippine EEZ, the Philippines should be allowed to use force to prevent attacks on its sovereignty or territorial integrity. However, since the Philippines lack the resources to match the military might of China, it may need to request for help from other States. The requisites for collective self-defense however is that there is an armed attack, the attacked State requested for help, and the UN Security Council has not yet taken any measures. Here lies another difficulty since China is one of the permanent members of the UNSC, it can use its veto power to prevent any action that the UNSC may decide to take which is adverse to China’s interests.


Power Play

Under International Law, the sovereignty of all States is recognized. Nonetheless, it is undeniable that there are States, among which is China, that wield more power than others in relation to their influence and resources. On its own, the Philippines lacks the resources to defend its claims. Even the possibility of war in the actual sense is not an option since the Philippines lacks the capability to out match the military might of China. For this reason, it is important for the Philippines to turn to its allies for the enforcement of its claims and in policing China.


The Philippines can also turn to regional or international organizations for support since in these venues the Philippines is given legal equality. In 2002, the Association of Southeast Asian Nations (ASEAN) and China signed a Declaration of Conduct of Parties in the South China Sea. Under this Declaration, the signatory States undertook to promote peace in the disputed area and to settle disputes between them through peaceable means.[25]


Though there are criticisms as to the effectiveness of the ASEAN, it is still a venue through which the Philippines can settle its issues with China. If the Philippines and the other claimant States under the ASEAN would come together with their different claims, then collectively they may be able to deal with China to settle the issue in a way that peace in the region is sustained.


UN General Assembly

While the Philippines cannot turn to the UN Security Council, given that China has veto power in that body, it may still appeal to the UN General Assembly to make recommendations. Although these recommendations are non-binding, it would still emanate from the UN which is regarded as the international body that regulates international relations.


Just as in the Nicaragua Case, the Philippines can appeal to the GA for a resolution to call for compliance from China. Obtaining a resolution from the GA may not entirely bring about compliance on the part of China. However, it can still serve as basis to strengthen the claims of the Philippines. Perchance, it would oblige China to discontinue from performing acts that worsen the issue over the West Philippine Sea.


International Court of Justice

Perhaps if the Philippines is able to bring the issue before a tribunal whose jurisdiction China recognizes, then China would be more cooperative. A possible venue to settle the issue would be the International Court of Justice (ICJ). However, a proceeding before the ICJ is possible only if the State parties have consented to the proceeding or has recognized its jurisdiction over the dispute.[26]


If China is allowed to continue to exploit the areas that it wants to when there is no basis for its claims, this would result to a breakdown of the system over maritime areas established under international law. There would result to a power imbalance because then it would appear that powerful States or any other State can exclusively exploit marine resources beyond their territories and entitlements. “If China succeeds in flaunting international law and territorial claims in this case, neither will they be deterred in 10 nor 20 years, when they are much more powerful economically and militarily, from claiming even more.”[27] Although it may be more in accord with international standards to deal with China bilaterally, international law also provides for a medium through which States rely on each other to bring about international order. In light of China’s militarization of the South China Sea, the matter now brings the whole international community into the issue since China has been prohibiting other States from navigating the area. Other States might react to the issue when it becomes apparent that their rights over the area are being curtailed by China, such as the freedom of navigation, freedom of overflight, and freedom to lay submarine cables and pipelines.[28]


International Law is enforced through international organizations, inter state enforcement, and intra state enforcement. For the Philippines to be able to settle the issue over the West Philippine Sea with China, it would have to rely on international law principles. It can choose to deal with China directly, negotiating bilateral agreements or it can choose to bring the issue before the whole international community in order to pressure China into compliance or at least to make an arrangement with the Philippines.


In summary, the Philippines can pursue several ways to settle its issues with China. The most viable action is one that involves negotiations with China. Through the Philippines’ improved relations with China under the current administration, it can enter into bilateral arrangements with China.  The Philippines would have to impress upon China that the resolution of its issue over the West Philippine Sea is important as to China’s relations with the rest of the international community. Another way to settle the issue would be through a multilateral agreement with China and the other claimant States. Although this is a more indirect approach, the Philippines should employ every means available in order to bring about the best arrangement for the interest of the State. Since International Law is mainly power and cooperation among States, there is a compulsion on States to act in accordance to international standards, which is promoting international peace and order. The Philippines can use this compulsion to its advantage. It can use as basis for its claims or right of action the arbitral ruling to bring the issue before the ASEAN, the UNGA, the ICJ, etc. Although the matter of sovereignty was not dealt with in the arbitration proceedings, the basis of China’s claim was still set aside. Still using the ruling as a basis, the Philippines can also claim damages from China in consideration of the harm done to the marine resources. What is important to note in the course of settling the issue is that any action taken must be geared towards the avoidance of worsening of the dispute and the promotion of international peace.


Although International Law deals with States as subjects, importance must still be given to the people who make up the State. The Philippine government must employ all possible measures to settle the dispute with China in a way that would advocate the interests of the Filipinos. It is not only international relations that is at stake in this issue, but also the lives of those dependent on the resources that the country can exploit. The West Philippine Sea is one of the many resources that the Philippines has been endowed with. Its preservation and exploitation is its responsibility which is why the Philippines must take seriously all the actions that it would take in order to protect the marine region.




1982 United Nations Convention on the Law of the Sea, Available at


  1. Corr (2016) Enforce Law Of The Sea Ruling: Stand With The Philippines Now, Or Later Face China Alone, Available at


  1. T. Carpio (2013) THE RULE OF LAW IN THE WEST PHILIPPINE SEA DISPUTE. Institute for Maritime and Ocean Affairs, Available at


  1. Nachura and J. Gatdula, Outline Introduction to Public International Law. Manila: Rex Book Store (2017)


  1. A. Rustandi (2016) The South China Sea Dispute: Opportunities for ASEAN to enhance its policies in order to achieve resolution, Available at


  1. J. A. Ibarra (2017) Probing the (Im)possibility of China’s Compliance with the South China Sea Arbitration Award, Available at


  1. R. Pemmaraju (2016) The South China Sea Arbitration (The Philippines v. China): Assessment of the Award on Jurisdiction and Admissibility. Available at


UN Charter, 24 October 1945, Available at


  1. T. Fravel (2011) China’s Strategy in the South China Sea, Available at


  1. Talmon (2017) The South China Sea Arbitration and the Finality of ‘Final’ Awards, Available at


Republic of Philippines v. The People’s Republic of China, Award, PCA case No. 2013-19, Available at


  1. O’Rourke (2018) Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, Available at

[1] Republic of Philippines v. The People’s Republic of China, PCA case No. 2013-19,  Available at

[2] R. O’Rourke (2018) Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, Available at

[3] A. T. Carpio (2013)  THE RULE OF LAW IN THE WEST PHILIPPINE SEA DISPUTE. Institute for Maritime and Ocean Affairs, Available at

[4] A. T. Carpio, Supra.

[5] S. R. Pemmaraju (2016) The South China Sea Arbitration (The Philippines v. China): Assessment of the Award on Jurisdiction and Admissibility. Available at

[6]Pemmaraju, Supra.


[8] Pemmaraju, Supra.

[9]E. J. A. Ibarra (2017) Probing the (Im)possibility of China’s Compliance with the South China Sea Arbitration Award, Available at



[10] Ibid


[12] A. Nachura and J. Gatdula, Outline Introduction to Public International Law. Manila: Rex Book Store (2017) p169

[13] S. Talmon (2017) The South China Sea Arbitration and the Finality of ‘Final’ Awards, Available at

[14]Talmon, Supra.



[17] Ibid, As an example: See discussion on the ICJ’s pronouncement on the Namibia advisory opinion and the Soering case involving the European Convention on Human Rights



[20] UN Charter, 24 October 1945, Available at

[21] Ibarra, Supra. On the “Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines”

[22]M. T. Fravel (2011) China’s Strategy in the South China Sea, Available at

[23] Ibid

[24] Ibid

[25]  C. A. Rustandi (2016) The South China Sea Dispute: Opportunities for ASEAN to enhance its policies in order to achieve resolution, Available at

[26] Ibid

[27] A. Corr (2016) Enforce Law Of The Sea Ruling: Stand With The Philippines Now, Or Later Face China Alone, Available at

[28] UNCLOS. Article 87-Freedom of the high seas.