The Law China Cannot Baton Down

BARELY eight days after the Philippines marked the tenth anniversary of the 2016 South China Sea Arbitral Award, another violent confrontation unfolded at Ayungin Shoal (also known as Second Thomas Shoal and Ren’ai Reef in China).

On July 20, the Armed Forces of the Philippines reported that a China Coast Guard rigid-hull inflatable boat approached the BRP Sierra Madre and maneuvered within close range while its personnel took photographs and videos.

When Filipino sailors aboard two rubber boats asked them to back away, Chinese personnel allegedly responded by repeatedly striking a Philippine Navy sailor on the head with a wooden baton, injuring him and damaging his vessel.

China disputes this account, claiming that Philippine personnel initiated the confrontation. Nevertheless, the videos released by the AFP demonstrate why incidents like this must be judged not by propaganda or unilateral assertions, but by international law.

Our Rights under International Law

Ayungin Shoal lies within the Philippines’ exclusive economic zone. The 2016 Arbitral Award rejected China’s supposed historic rights over resources within its “nine-dash line” insofar as these exceeded the maritime entitlements allowed under the United Nations Convention on the Law of the Sea (UNCLOS).

Under Article 56 of UNCLOS, the Philippines possesses sovereign rights within its EEZ to explore, conserve and manage its natural resources. It also exercises jurisdiction over the protection and preservation of the marine environment.

Article 58, meanwhile, recognizes freedom of navigation and other lawful uses of the sea. However, such freedoms are not licenses for intimidation or violence. They must be exercised with due regard for the rights and duties of the coastal State.

More importantly, Article 301 of UNCLOS requires States to refrain from the threat or use of force when exercising their rights and performing their duties at sea. Striking a sailor with a wooden baton and damaging his small rubber boat cannot reasonably be described as ordinary navigation or legitimate law enforcement, especially when done against Philippine personnel protecting a long-established outpost within the country’s EEZ.

Under the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), State responsibility arises when two elements concur: first, the conduct is attributable to the State; and second, it constitutes a breach of an international obligation binding upon that State.

The first element is clear. The China Coast Guard is an organ of the Chinese State. Its official conduct is therefore attributable to China under international law.

As to the second element, if the Philippine account and video evidence are confirmed, the violence may constitute breaches of China’s obligations to respect lawful navigation, exercise due regard, use the seas peacefully and refrain from coercive interference with Philippine maritime rights.

The Rule of Law Must Prevail at Sea

China cannot erase these obligations by invoking its domestic laws or repeating maritime claims already rejected by the arbitral tribunal. The international character of an act is determined by international law, not by the unilateral legislation of the offending State.

The Tenth Anniversary of the Award should have reminded both countries that law provides the only stable path forward. Instead, a wooden baton became the latest symbol of an attempt to replace legal rules with physical intimidation.

Restraint should never be mistaken for surrender. In the West Philippine Sea, peace must be defended not only by courage at sea, but by an unwavering insistence on the rule of law.