An Analysis of Multilateralism and its impact on the Peaceful

Resolution of the West Philippine Sea (South China Sea)

Dispute with the People’s Republic of China

Presented to:

Judge Charito Sawali

Submitted by Group 1:

Alemania, Krista Belle

Arasula, Leah

Ascalon, Ricardo

Atienza, Joanna Myrene

Biglete, Catherine

Brual, Nico Allen

Buhay, Jhudith

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CHAPTER 1

1.1 INTRODUCTION

The Philippines is currently locked-up in a territorial spat with China and the former has

continuously labored to assert its rights in accordance with the 1982 United Nations

Convention of the Law of the Sea. It is a battle between David and Goliath with the

People’s Republic of China (PRC) aggressively militarizing the area, with its 9-dash

rule, by building artificial islands on atolls and reefs also claimed by the Philippines1.

The encroachment by China in the Philippine exclusive economic zone and territorial

waters have placed in peril the national interests of the country and its territorial integrity

by denying the entry of Filipino fishermen in traditional fishing grounds and by

occupying territories which the Philippines has claims based on legal grounds backed

up by International Law. Bearing in mind that the Philippines renounces war as an

instrument of National Policy2 and that the prime duty of the Philippine government is to

serve and protect the people3, a diplomatic track and arbitration is necessary to defend

its rights and territorial integrity in the West Philippine Sea. Thus, multilateralism as the

1 Michael T. Klare, Resource Wars: The New Landscape of Global Conflict, (Macmillan Publishers,2001) p.422-4312 CONSTITUTION, Art II, Sec. 2 3 CONSTITUTION, Art II, Sec. 3

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set-up of the 21st century global order will play a key role on determining the outcome

and settlement of disputes in the West Philippine Sea (South China Sea)4.

1.2 BACKGROUND OF THE STUDY

Multilateralism is defined as the practice of policy coordination among three or more

states through formal and informal international governmental institutions such as the

United Nations, the European Union, and nonproliferation regimes or ad hoc

arrangements. It had become a norm of diplomatic practice and a fundamental feature

of international organizations, reflecting the structure and processes of

intergovernmental and interstate relations and a core characteristic of the post–World

War II international order. This order persisted in the 21st century by the abidance of

State entities for the non-proliferation of symmetric warfare and the continuous resorting

to international forums in settling conflicting interests between member States of the

United Nations5.

It is worth to note that the West Philippine Sea (South China Sea) dispute has garnered

international highlights as the next possible international flashpoint due to conflicting

4 Aviel, J.F The Evolution of Multilateral Diplomacy (Boulder, CO: Westview, 2005) pp.15-225 James Muldoom, J. Aviel, Richard Reitano, and Earl Sullivan, The New Dynamics of Multilateralism: Diplomacy, International Organizations, and Global Governance. (Boulder, CO: Westview, 2011)pp. 2-23

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claims between the Philippines and China over the area which is believed to contain

vast amounts of minerals including oil and natural gas6. Legal steps has been taken by

the Philippines in order to protect its interests in the area by resorting to an arbitration

case filed before the International Tribunal on the Law of the Sea, challenging the 9-

dash rule of China which is not grounded nor supported by International Law. The steps

taken by the Philippine government is in abidance with the spirit of international comity

and in accord with the mandate of the United Nations that disputes must be resolved

peacefully. Below is an illustration of the area of conflict and the extent of the claims of

each party:

7

“China’s 9-dashed lines were first made known by China to its own people in 1947.

China officially submitted a map of its 9-dashed lines to the United Nations only in 2009.

6 Klare, ocp.cit. p.3297 Illustration Retrieved from: http://www.cfr.org/china/south-china-sea-tensions/p29790

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Up to today the 9-dashes, which have been increased to 10 dashes in 2013, have no

fixed coordinates. China has never explained the legal or factual basis of the 9-dashed

lines. Under its 9-dashed lines China asserts control and “indisputable sovereignty” to

almost 90% of the South China Sea, including China’s coastal waters outside the 9-

dashed lines. Of course, this blatantly violates international law because no State could

appropriate for itself the high seas, whether before or after UNCLOS. China is the only

country in the world today that is claiming “indisputable sovereignty” over the high

seas.” 8

From the illustration, it is observed that the 9-dash line rule asserted by China

denies the Philippines access to its Exclusive Economic Zone granted to it by the 1982

UNCLOS. Thus this research presents the impact of multilateralism on reconciling

conflicting interests and settling the dispute in the West Philippine Sea (South China

Sea). Emphasis is placed on the role that multilateralism will partake in the solutions to

be proposed by the Philippines with China without contradicting the Philippine Foreign

Policy and the Philippine National Interests.

1.3 STATEMENT OF THE PROBLEM

8 Justice Antonio Carpio, Speech delivered on the 75th Anniversary of the College of Law,University of San Agustin, Iloilo City (30 August 2014)

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This is an analysis of multilateralism and its impact on the peaceful resolution of

the West Philippine Sea (South China Sea) dispute between the Philippines and the

People’s Republic of China.

More particularly, it endeavors to answer the following questions:

1. What is China’s 9-dash rule?

2. How does this rule affect the Philippine territory?

a. What are the actions undertaken by the Philippines to protect its territorial

integrity?

b. How does international law on territorial dispute support the Philippine Claim?

c. How does the 21st century global order affect the settlement of dispute?

3. As a member of the community of nations, how can the Philippines propose

solutions with China without contradicting the pillars of the Philippine Foreign

Policy?

a. How do these solutions conform with the Philippine’s foreign policy?

b. How can multilateral support from the non-claimant states help in the

settlement of territorial conflict with China?

1.4 ASSUMPTIONS OF THE STUDY

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The study is based on the following assumptions:

1. International Organizations such as the United Nations is equipped with

mechanism in settling conflicting interests between member States.

2. Resolutions promulgated by its UN agencies/tribunals are binding to State

parties in order to uphold solidarity and comity of Nations as a member of the

international community.

3. Multilateral support to a particular decision promulgated by an agency or

tribunal of the UN brings enforceability to the judgment.

4. International law governs the 21st century global order.

5. ASEAN, as a multilateral entity, will support the Philippines in its proposed

solutions in the dispute with China.

1.5 OBJECTIVE OF THE STUDY

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This research undertaking investigates and determines the impact of

multilateralism on the peaceful resolution of the dispute between the Philippines and

China. This current geo-political context may provide both challenges and opportunities

in empowering the Philippine interest and for the peaceful resolution of these disputes.

Established cases involving maritime disputes will also be used in the study to provide a

better overview on how multilateralism affected previous settlements of maritime

conflicts.

1.6 SIGNIFICANCE OF THE STUDY

This study is significant in promoting awareness to maritime rights in the West

Philippine Sea (South China Sea) and to the steps taken by the Philippine Government

to secure our rights and territorial integrity against the odds. Also, this will be beneficial

to the academe in providing a multilateral perspective for the peaceful resolution of the

dispute and to highlight the strength of multilateral cooperation in settling between State

entities. More importantly, this research will educate students on what is at stake in the

disputed area and how it will impact the future of the Philippines in economic and

security aspects.

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1.7 DEFINITION OF TERMS

In this research, the following are defined as follows:

China - In this research, China refers to the People’s Republic of China

(PRC) with Beijing as its capital.

Multilateralism -  is defined as multiple countries working in concert on a

given issue. Multilateralism was defined by Miles Kahler as “international governance of

the ‘many,’” and its central principle was “opposition [of] bilateral discriminatory

arrangements that were believed to enhance the leverage of the powerful over the weak

and to increase international conflict.”  In 1990, Robert Keohane defined multilateralism

as “the practice of coordinating national policies in groups of three or more states”.9

9 International Law Reports, vol. 91, at 584, Lauterpacht & Greenwood eds.1993

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China’s 9-Dash Line - refers to the demarcation line used initially by the

government of the Republic of China (ROC / Taiwan), and subsequently also by the

government of the People's Republic of China (PRC), for their claims of the major part

of the South China Sea.10

Exclusive Economic Zone (EEZ) - is a sea zone prescribed by the United

Nations Convention on the Law of the Sea over which a state has special rights

regarding the exploration and use of marine resources, including energy production

from water and wind. It stretches from the baseline out to 200 nautical miles (nmi) from

its coast.11

High Seas - A term of international and maritime law; the open ocean, not part

of the exclusive economic zone, territorial sea or internal waters of any state.12

10 Zachary Kech, China’s “9-dash line”, The Diplomat (2014)11 1982 United Nations Convention on the Law of the Sea, Part V, Art. 55-5912 Duhaime Legal Dictionary, retrieved from: http://www.duhaime.org/LegalDictionary/H/HighSeas.aspx

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Territorial Sea - Waters extending up to 12 miles from the baseline of a coastal

state over which the state exercises sovereignty excepting innocent and transit

passage13.

21st Century Global Order - it is a diplomatic term characterized by multilateral

cooperation entered into in accordance with the principles of the United Nations and the

participation of States in the preservation of global peace.14

CHAPTER 2

REVIEW OF RELATED LITERATURE AND STUDIES

This chapter presents a review of related literature and studies which provided

the researcher with ideas related to the stipulated problems in the study.

13 Duhaime Legal Dictionary, retrieved from:http://www.duhaime.org/LegalDictionary/H/TerritorialSea.aspx14 International Institutions and Global Governance Program World Order in the 21st Century; A New Initiative of the Council on Foreign Relations May 1, 2008, Retrieved from: http://www.cfr.org/content/thinktank/CFR_Global%20_Governance_%20Program.pdf

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2.1 LITERATURE

In Chapter 1, Article 1 of the Charter of the United Nations, one of the purposes

of the United Nations is “to maintain international peace and security, and to that end: to

take effective collective measures for the prevention and removal of threats to the

peace, and for the suppression of acts of aggression or other breaches of the peace,

and to bring about by peaceful means, and in conformity with the principles of justice

and international law, adjustment or settlement of international disputes or situations

which might lead to a breach of the peace”. Another purpose for the creation of the

United Nations was “to develop friendly relations among nations based on respect for

the principle of equal rights and self-determination of peoples, and to take other

appropriate measures to strengthen universal peace”. The creation of the United

Nations highlights the need for the prevention of the escalation of regional conflicts for

the preservation of international comity and solidarity, and for the preservation of

peace.15

15 Charter of the United Nations , Retrieved from: http://www.un.org/en/documents/charter/chapter1.shtml

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As stated by James Muldoon Jr. in the book “Return to Multilateralism, 1992”, the

proliferation of international organizations during the twentieth century, especially in the

aftermath of World War II, was an important innovation in the governance of

international society. The aforementioned marked a shift from the “old” international

order, which was based on a commitment of the great powers to manage their political

and security relationships through consultation and negotiations (e.g., the Concert of

Europe), to a “new” world order, also known as the 21st Century Global Order, centered

on the United Nations system and a commitment by all states to manage their political,

economic, and social relationships through collaboration (Mangone 1954)16. However,

the fundamental sources of the “old” international order – namely war, the balance of

power, the role of the great powers, international law, and traditional diplomacy –

continued to be the “effective institutions of international society” to which the United

Nations and other international organizations contribute (Bull 1995)17. In other words,

the new order established after World War II reflected a shift in the emphasis placed on

these institutions of international society – more on multilateral diplomacy, international

law, and the role of the great powers, and less on war and the balance of power – and

represented a more refined (perhaps even improved) institutional framework for order

and governance of a rapidly expanding international society (Webster 1962)18. This

16 G.J. Mangone, A Short History of International Organization. (New York: McGraw-Hill, 1954)17 H.Bull, The Anarchical Society: A Study of Order in World Politics, 2nd edn. (London: Macmillan, 1995)18 C. Webster, The Art and Practice of Diplomacy (New York: Barnes and Noble, 1962)

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book will provide the concept of multilateralism in consideration of the 21st century

global order and how it will impact the peaceful resolution in the West Philippine Sea

(South China Sea) dispute.

To provide for institutions governing maritime disputes, the member States of the

United Nations convened in order to codify the settled principles of the Law of the Sea

which was embodied in the 1982 UNCLOS. Thus, it is the most comprehensive attempt

at creating a unified regime for governance of the rights of nations with respect to the

world's oceans. The treaty addresses a number of topics including navigational rights,

economic rights, pollution of the seas, conservation of marine life, scientific exploration,

piracy, and more. It further states that in the exclusive economic zone, the coastal State

has sovereign rights for the purpose of exploring and exploiting, conserving and

managing the natural resources, whether living or non-living, of the waters superjacent

to the seabed and of the seabed and its subsoil, and with regard to other activities for

the economic exploitation and exploration of the zone, such as the production of energy

from the water, currents and winds over an area of 200 nautical miles from the

archipelagic baseline. 19 This convention will determine the legal basis of maritime

claims by the Philippines and the People’s Republic of China, and how it can determine

19 1982 United Nations Convention on the Law of the Sea, Part V Article 55 - 75

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the proposal to be made with respect to the dispute in the West Philippine Sea (South

China Sea). In the case of Magallona vs Ermita, the Philippine Baseline law (RA.9522)

provides for the extent of the Philippine Territorial Waters in accordance with the

provisions and guidelines provided in the 1982 UNCLOS:

20

This illustration provided in the mentioned case shall guide the researchers on the

extent of the Philippine claims in accordance with the established international law.

20 Magallona vs. Ermita, G.R. No. 187167, August 16, 2011. Retrieved from: www.lawphil.net

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A constitution of a country is the fundamental law of the land. No law enacted nor

decisions promulgated will contravene the organic law as the constitution will always be

supreme. 21 The 1987 Philippine Constitution provides under Article 2, Sec. 2, “The

Philippines renounces war as an instrument of national policy, adopts the generally

accepted principles of international law as part of the law of the land and adheres to the

policy of peace, equality, justice, freedom, cooperation, and amity with all nations”22.

Also, under the same Article, Sec.7 thereof provides, “The State shall pursue an

independent foreign policy. In its relations with other states, the paramount

consideration shall be national sovereignty, territorial integrity, national interest, and the

right to self-determination”23. This guiding principle of the Philippine Constitution will

provide the researchers the paramount consideration in proposing for a solution with

China in the West Philippine Sea dispute (South China Sea).

The Business Dictionary defines Foreign Policy as a “plan of action adopted by

one nation in regards to its diplomatic dealings with other countries which are

established as a systematic way to deal with issues that may arise with other

countries”.24 Thus, the purpose of Philippine Foreign Policy is to secure the national

21 The Constitution of the Philippines: An Overview (2011) Retrieved from: https://philippineslaw.wordpress.com/2011/02/01/the-constitution-of-the-philippines-an-overview/22 CONSTITUTION, Art. II, Sec. 223 Ibid.

24 Foreign Policy definition, Retrieved from: http://www.businessdictionary.com/definition/foreign-policy.html#ixzz3m1C6lBb2

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interest in our dealings with foreign nations, regional organizations and international

bodies. This has been done through its three long-established pillars, namely: 1)

promoting national security; 2) enhancing economic diplomacy; and 3) protecting the

rights and welfare of Filipinos overseas.25 These long-established pillars will be very

important in the present study as the proposed solution shall conform to the

aforementioned and will not in any way contravene them.

2.2: STUDIES

Allen Yu, On China’s 9-Dashed Line and Why the Arbitrational Tribunal in Hague

Should Dismiss Philippine’s Case Against China26, This study provided the background

25 Pillars of Philippine Foreign Policy, Retrieved from:http://www.dfa.gov.ph/index.php/component/content/category/91-philippine-foreign-policy26 Allen Yu, On China’s 9-Dashed Line and Why the Arbitrational Tribunal in Hague Should Dismiss Philippine’s Case Against China, (August 29, 2014)

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of China’s so-called “9-dashed” (originally “11 dashes”) as first promulgated by the

Republic of China (now known as Taiwain) in 1947 and made officially public in 1948.

The original “11 dashes” were changed from “11 dashes” to “9 dashes” after the

People’s Republic of China (Beijing) and Vietnam negotiated a settlement in 1953 over

the Beibu Bay area. The Chinese government based its S. China Sea claims on

historical title dating back to the Xia dynasty (21st - 16th B.C.)27. Also, in this study it

provided how and why China will prevail over the cause of the Philippines regarding the

dispute. This perspective viewed from the Chinese side is essential in determining steps

on how the Philippines can reconcile with China in the proposal for the resolution of the

West Philippine Sea (South China Sea) dispute.

Beina Xu, South China Sea Tensions28, the study pointed out, that the South

China Sea holds proven oil reserves of at least seven billion barrels and an estimated

900 trillion cubic feet of natural gas (World Bank), which offers tremendous economic

opportunity for smaller nations like Malaysia, the Philippines, and Vietnam, and energy

security for China's large, growing economy. The immediate source of conflict in the

27 Allen Yu, op.cit. pp.3-928 Beina Xu, South China Sea Tensions, (Council on Foreign Relations, May 14 2014)

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region is competition over resources, said David Rosenberg, professor of political

science at Middlebury College. There are roughly half a billion people who live within

100 miles of the South China Sea coastline, and the volume of shipping through its

waters has skyrocketed as China and ASEAN nations increase international trade and

oil imports. The need for resources, especially hydrocarbons and fisheries, also has

intensified economic competition in the region, particularly given the rapid coastal

urbanization of China. "Behind it all, it's essentially the industrial revolution of Asia,"

Rosenberg said. "And the South China Sea has become the hub of that."29 This study

will provide for additional considerations in proposing for a resolution in settlement of

disputes with the People’s Republic of China in the West Philippine Sea (South China

Sea)

Senior Associate Justice Antonio T. Carpio, The Rule of Law in the West

Philippine Sea Dispute30, reiterated that the Rule of Law in the West Philippine Sea

dispute is UNCLOS. Thus, it stated that China’s 9-dash line cannot simply co-exist with

UNCLOS. The arguments presented by Justice Carpio in his speech impliedly stated

the need to pursue a multilateral approach by resulting to international forums because 29 Xu, op.cit. p.530 Justice Antonio T. Carpio, The Rule of Law in the West Philippine Sea Dispute, (Speech delivered before the Philippine Bar Association 29 August 2013)

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those proposed by China is subject to conditions unfair and prejudicial to the interests of

the Philippines. Such proposal, in the form of joint development, constitutes a bilateral

approach in resolving the said dispute. This will provide a better opportunity to the

researchers to highlight the importance of multilateralism on the settlement of disputes

in the West Philippine Sea.

2.3: THEORETICAL FRAMEWORK

This analysis shall use the International Relations Theory in explaining the

conduct of States with regards to advancing its National Interests and reaching for a

compromise in attaining a resolution which is attainable

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