Renee Valerie G. Fajardo

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On July 12, 2016, the Permanent Court of Arbitration (PCA) at the Hague issued its Final Decision on the dispute between the People’s Republic of China and the Republic of the Philippines.[1] The Final Decision—a complicated answer written in 500 pages—can be distilled into four major points: (1) China has no historic rights over the Spratly Islands in the South China Sea[2]; (2) None of Spratly Islands generates its own exclusive economic zone (EEZ)[3]; (3) China violated the Philippines’ rights within the Philippine EEZ by interfering with the Philippines’ activities in the area[4]; and (4) China severely damaged the coral reef environment and violated its obligation to preserve the environment under the UNCLOS.[5]

The Philippines’ long-awaited victory in this dispute was dampened, however, by China’s outright refusal to recognize the PCA’s decision followed by a vague and fickle foreign policy from the new Philippine Administration.[6] The unfortunate reality in international law is that where the global economy tips in favor of one state, the disadvantaged state must resort to creative strategies in securing its own interest. Even when the law is on David’s side, Goliath remains a formidable foe.

This Note discusses the monumental PCA decision and analyzes strategies through which the Philippines can enforce the decision. This Note does not assume that the Philippines can successfully oust China from the Philippines’ own territory, rather it explores in-depth the suggestions articulated by Philippine legal scholars to maintain pressure on China to abide by international law.[7] First, the Note explains how the Philippines can sue Chinese oil and gas companies bringing their platforms in the area. Namely, under International law injured states can seek enforcement of an arbitration decision in foreign civil courts where the noncompliant entity has assets. Second, the Note explores how the Philippines can demand reparations for damages to the fragile marine ecosystem in the area caused by China’s dredging to build artificial islands. Third, the Note discusses how the Philippines can seek the suspension of permits issued to China by the International Seaboard Authority until China cooperates with the Philippines and agrees to peacefully and productively negotiate.

The Note then concludes with a brief and optimistic look at possible regional cooperation to create a marine-protected area in the South China Sea to be maintained by China, the Philippines, and the other members of the Association of Southeast Asian Nations.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

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[1] Republic of the Phil. v. People’s Republic of China, PCA Case Repository (Perm. Ct. Arb. 2016), https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf

[2] Id. at 117.

[3] Id. at 254-56.

[4] Id. at 286.

[5] Id. at 397.

[6] Statement of the Government of the People’s Republic of China on China’s Territorial Sovereignty and Maritime Rights and Interests in the South China Sea, Ministry of Foreign Affairs of the People’s Republic of China (July 12, 2016), http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1379493.shtml; Duterte on South China Sea: We Won’t Give Up Anything, ABS-CBN News (las t updated Oct. 16, 2016 , 05:46PM) http://news.abs-cbn.com/news/10/16/16/duterte-on-south-china-sea-we-wont-give-up-anything; Duterte aligns Philippines with China, says U.S. has lost, Reuters (Oct. 20, 2016, 7:39 PM), http://www.reuters.com/article/us-china-philippines-idUSKCN12K0AS.

[7] Antonio T. Carpio, How the Philippines Can Enforce the South China Sea Verdict, Wall St. J. (July 17, 2016, 12:53PM), http://www.wsj.com/articles/how-the-philippines-can-enforce-the-south-china-sea-verdict-1468774415