Today, Chinese Coast Guard vessels patrolled Scarborough Shoal today, marking at least the fourth incursion by the People’s Republic of China into the Philippines’ Exclusive Economic Zone since the Philippines announced two new laws. On November 8, the Philippines passed the Archipelagic Sea Lanes Act and the Maritime Zones Act to bolster its maritime claims. The PRC has responded with military actions and a legal assault of its own. Both sides are engaging in lawfare, the use of law to achieve a strategic or military objective. In doing so, they are engaging in legal preparation of the battlefield for future conflict in the South China Sea.
Dueling Laws for the Philippines and China
The Philippines’ Maritime Zones Act aims to align Philippine domestic law with the UN Convention on the Law of the Sea and the 2016 South China Sea arbitration. The arbitration award invalidated PRC claims to numerous features within the Philippines’ EEZ, including Scarborough Shoal. The Act asserts and reinforces the Philippines’ maritime boundaries and formalizes the term “West Philippine Sea,” the state’s preferred term for the portion of the South China Sea that falls within the Philippines’ EEZ. The Act also recognizes the Kalayaan Island Group as Philippine territory, including Pag-Asa Island and Sabina Shoal, both sites of recent PRC military actions. At least 60 Chinese maritime militia vessels swarmed Pag-Asa Island on November 28.
The Archipelagic Sea Lanes Act designates three standard sea routes for foreign navigation in Philippine internal waters and archipelagic waters, in accordance with UNCLOS. Before these lanes were established, foreign vessels could determine their own routes, leading to tensions with Philippine authorities. The Act also makes foreign ship and air operators liable for damages resulting from non-compliance. The Act will enable the Philippines to better enforce its laws against PRC military vessels, which have loitered inside the archipelago without permission. The Philippines will submit the routes to the International Maritime Organization for approval.
These laws provide clarity for the Philippines’ maritime claims. They also insulate the claims from future political maneuvers. The Duterte administration, for example, had hedged on enforcement of the South China Sea arbitration during a period of warming with the PRC, and allowed PRC ships to linger in archipelagic waters with little repercussions. Future administrations will be pressed to enforce the newly-clarified Philippine domestic law.
The PRC’s Unlawful “Legal” Response
In response, the PRC quickly launched coast guard patrols around Scarborough Shoal. On November 10, it published its own baselines around Scarborough Shoal, which it calls Huangyan Dao, classifying the surrounding seas as “internal waters” and clarifying its territorial sea and EEZ claims. The PRC stated that it had been mapping baselines for years but released them in response to the Philippines’ new maritime laws. The China Coast Guard announced “targeted enforcement measures” to expel Philippine vessels and accused the Philippines of trying to solidify the “illegal” arbitration award. On November 28, the PRC held combat readiness drills around the Shoal.
Simultaneously, the PRC announced official geographic names for 64 features in the South China Sea. It also released a new map of Sansha City, its administrative base for its South China Sea Claims. The new map delineates the districts of Xisha and Nansha, which were established in 2020 but never mapped, and assigns them administrative codes. The PRC has also sought to dispute the Philippine laws in the press. Articles in the Global Times and South China Morning Post cite fears that the laws will affect freedom of navigation, and impact trade, especially by reducing the number of sea lanes currently in use.
Consistent with its other use of lawfare, the PRC is employing domestic law to solidify its illegal maritime claims. It uses UNCLOS language to give the veneer of compliance with international law. However, its use of straight baselines and claims over underwater features actually contradict UNCLOS. UNCLOS specifies a rule for baselines around reefs, which the PRC did not follow. UNCLOS limits baseline claims to land features above water at high tide. The 2016 Philippines-China arbitration ruling classifies Scarborough Shoal as a rock, which is therefore entitled to a territorial sea but not an EEZ or continental shelf.
Interestingly, the PRC’s baseline claims around Scarborough Shoal are more conservative than many expected. While the new baseline map represents the most specific delineation of its claims, the PRC had previously asserted a novel “offshore archipelago” claim to the Zhongsha island group, including the underwater Macclesfield bank. This larger claim contravenes UNCLOS and the 2016 arbitral award. It is unclear whether this new mapping signals the PRC’s relinquishment of its broader claim, or simply strategic caution.
Philippines-China Conflict or ASEAN Code of Conduct?
The stage appears to be set for future maritime confrontations between the Philippines and the PRC over Scarborough Shoal, which has been a flashpoint in relations between the two countries since at least 2012. The Philippine and PRC laws may complicate multilateral negotiations over South China Sea claims, including the much-awaited, ASEAN-led South China Sea Code of Conduct negotiation set to resume in 2025. Malaysia, for example, filed a protest against the Philippines’ maritime laws because they touch upon a dormant Philippine claim to the Malaysian state of Sabah on Borneo. Vietnam is also expected to protest.
Despite these disputes, Philippine leadership regarding UNCLOS has prodded its neighbors toward a unified position on South China Sea claims. When the Philippines submitted an extended continental shelf claim to the UN this year, Vietnam soon announced that it was interested in negotiating with the Philippines over their overlapping claims. Vietnam, Indonesia, and Malaysia relied on UNCLOS to settle their maritime disputes with each other, and Indonesia and Malaysia have referred to the 2016 arbitral ruling in UN submissions. The U.S. and the Philippines must continue to champion UNCLOS as the basis for resolving maritime claims. Only by asserting a unified legal front against the PRC can claimant states safeguard international law from the PRC’s attempts to rewrite it.
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