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Why the Philippines May Take China to Court—Again—Over the South China Sea

5 minute read

Ten years ago, the Philippines lodged a complaint to the Permanent Court of Arbitration at The Hague, taking issue with China’s expansive claims over the South China Sea, which China used to justify building military outposts in the disputed waterway. When the U.N.-backed tribunal ruled in favor of the Philippines and against China in 2016, the decision was lauded as a “great victory,” akin to David’s defeat of Goliath.

But China treats the ruling as nothing more than “a piece of waste paper,” in the words of its foreign ministry, and has instead continued to aggressively assert its ownership of the sea, even using military-grade lasers and water cannons. Yet despite Beijing’s open defiance of the 2016 ruling, the Philippines is reportedly considering bringing China back to court. Experts say a new case—and even probably victory again for the Philippines—is unlikely to have any practical effect on Beijing, but Philippine authorities appear to understand this and, wary of military escalation, seem more interested in chipping further away at the image China tries to fashion for itself as a strict adherent to a “rules-based international order.” 

Read More: China Is Testing How Hard It Can Push in the South China Sea Before Someone Pushes Back

“To be dealt with a first defeat legally is one thing,” Collin Koh, a maritime affairs expert at the S. Rajaratnam School of International Studies in Singapore, tells TIME. “But if you are dealt with a second legal defeat, again, I don't think it actually reflects very well on China's reputation.” Koh says the seven years since the last international ruling is a long time, and a new case building on the previous one would inject renewed vigor into global scrutiny of China’s actions in the South China Sea.

This time around, the Philippines’ case may center around the damage China’s activities have allegedly wrought on the marine environment. The Philippine Coast Guard surveyed a reef last month within the country’s 200-nautical mile exclusive economic zone and found “extensive damage.” The country’s solicitor general said last week he is deliberating whether to launch legal action against China and is waiting for an official assessment of the damage, before he ultimately sends a report and recommendation to the foreign ministry and President Ferdinand Marcos Jr.

There are possible downsides for the Philippines, of course. “You do wonder: as a practical or political matter, is it really worth the effort and the cost in terms of litigating once again?” says Natalie Klein, a professor of international law at the University of New South Wales (UNSW) in Sydney, Australia. Indeed, international legal action can be expensive: independent non-profit media organization VERA Files reported that the Philippine government spent around $7 million in legal fees for the international lawyers who helped the country win the 2016 case.

For UNSW’s Klein, the reputational damage dealt by China’s absence during the first tribunal may make Chinese authorities consider participating in any future legal proceedings. Klein says she wouldn’t be surprised if China plays a more active role should a new complaint be filed, but she also warns that China “has very strong views about ‘this is not how we resolve disputes.’ It prefers the negotiation settings.” 

Filing a new case risks provoking further aggression from Beijing—which has so far relied on non-lethal but nonetheless dangerous methods to ward off Philippine forces in the South China Sea. "Anyone who's been involved in a court case knows that it can actually make a dispute worse,” says Douglas Guilfoyle, a professor of international law and maritime security at UNSW Canberra. “No one likes going to litigation. It's a highly adversarial business.”

And China’s recent foreign policy track record shows that it can certainly be retaliatory. When South Korea imposed COVID-related curbs on travelers from China in January, Beijing responded by suspending the issuance of short-term visas to Koreans. When the U.S. shot down an alleged Chinese spy  balloon earlier this year, China vowed to take countermeasures, although it’s not clear if it has done so yet. When Japan released treated nuclear wastewater into the Pacific last month, even though scientists deemed the discharge to have negligible impact on human health, China imposed a seafood import ban. 

Read More: China’s Concern About Nuclear Wastewater May Be More About Politics Than Science

Despite the risks, however, former Philippine solicitor general and Supreme Court judge Francis Jardeleza, who was part of the legal team that brought China to international court in 2013, says lodging a new case is worth roiling the Philippine’s powerful neighbor because it “moves the envelope,” even if slowly. “For China, they think of this issue in terms of 1,000 years,” Jardeleza tells TIME. “So the Filipinos should also think like that.” 

Ultimately, putting the South China Sea maritime row back on the international community’s radar could highlight how China can be a belligerent and uncooperative state—a sharp contrast to China’s efforts to woo much of the rest of Southeast Asia and the Global South in an ongoing competition for global influence with the West.

Says Jay Batongbacal, an expert on maritime law at the University of the Philippines: “At some point, China will have to realize that complying with international law, being a responsible member of the international community, is worth more than whatever inconvenience or disadvantage it might think it will have in acknowledging the Philippines’ claims and rights to these areas.”

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