The islands and reefs in the South China Sea are Chinese territory since ancient times,

Chinese President Xi Jinping declared in an exclusive interview during his visit to London last
year.

Evoking a sense of historical duty, the Chinese leader explained how the contested land
features are left to [modern China] by our ancestors, vowing that the Chinese people will
not allow anyone to infringe on Chinas sovereignty and related rights and interests in the
South China Sea.

It was a defiant defense of Chinas massive reclamation activities and increasingly

frequent deployment of naval vessels, para-military forces, and militia-cum-
fishermen contingents across what it calls its national blue soil. In a span of two years,
China has built a sprawling network of dual-purpose (civilian and military) facilities on
artificial islands, which have been hosting a a growing number of uniformed personnel and
advanced military hardware like mobile artilleries, high-frequency radars, jet fighters, and
surface-to-air-missile systems.

Though China isnt the first country to have engaged in reclamation activities in the area, no
one matches the speed, scale, and technological sophistication of its emerging Great Wall
of Sand in the West Philippine Sea. There is a profound fear across the region that Beijing
will soon establish a de facto "exclusion zone" in the area restricting freedom of navigation
and over-flight of regional states and foreign powers, particularly their armed forces.

One neighboring country, in particular, has decided to take China to international court. In
late-2012, shortly after China forcibly wrested control of the Philippine-claimed Scarborough
Shoal, which falls well within Manilas Exclusive Economic Zone (EEZ) but is located 900
kilometers from the nearest Chinese coastline, Philippine President Benigno Aquino III
decided to take the case to an arbitration body.

Bereft of the necessary muscle to defend its claim, and absent any tangible military support
from long-time allies like America, the Aquino administration undertook the unprecedented
decision to settle the West Philippine Sea disputes under the compulsory arbitration clause
(Art. 287, Annex VII) of the United Nations Convention on the Law of the Sea (UNCLOS).

In coming days, the arbitral tribunal is expected to release a final verdict, most likely
unfavorable to China, but it is ultimately up to the Philippines newly-elected President
Rodrigo Duterte on how to leverage the ruling. It will be his first and arguably most
important foreign policy dilemma. As much as the new president seeks better relations with
China, it is of paramount importance that a likely favorable verdict will not be laid to waste
in order to simply re-open communication channels with China. Bilateral talks should be
unconditional.

The Philippine government should ensure that the verdict would be optimized to advance
the national interest by tangibly reshaping Chinas behavior, enhancing the Philippines
position in the disputed waters, and defending its territorial claims. We dont want war, for
sure, but appeasement is also not an option.
Meanwhile, the Philippines should also seek maximum support and virtual strategic
guarantee from international partners, particularly America and Japan, to enforce the
verdict, which is binding but has been vociferously opposed by China. It is high time for the
United States to clarify whether its mutual defense treaty with the Philippines means that it
will come to its allys rescue if the situation gets out of control. The current policy of
"strategic ambiguity" has created too much ambiguity without providing any significant
strategic gains, since China has pushed ahead with its expansive claims in recent years
without much self-restraint.

The West cant expect the Philippines to shoulder the costs of confrontation with China on its
own. The Philippines cant take up the cudgels for international law singlehandedly. After all,
the arbitration case is binding, but not enforceable unless the global powers step up to the
plate.

Trial of the century

Since arbitration bodies under UNCLOS have no mandate to adjudicate questions of

sovereignty (i.e., territorial claim), the Philippines skillfully repackaged its legal complaint
against China as, primarily, a question of maritime entitlement zones (see Art. 121, Part VIII
on regime of islands).

For the Philippines, its important to clarify, for instance, whether the disputed land features
in the West Philippine Sea constitute low-tide elevations, which (generally) cant be claimed
as ones territory, or rocks, which can generate their own territorial sea, or islands, which
can generate their own EEZ -- an issue that carries immense strategic and territorial
implications.

In addition, the Philippines, in its thousands-paged-long memorial, raised concerns with

respect to Chinas purported harassment of Filipino fishermen and energy exploration
operations in its EEZ, Chinas reclamation activities on low-tide elevations in the Spratly
chain of islands as well as their deleterious ecological impact, particularly for coral reefs and
endangered species. Most crucially, the Philippines has also questioned the validity and
precise nature of Chinas 9-dash-line claim, which covers much of the West Philippine and
the larger South China Sea, and its doctrine of historical rights/waters, which undergirds
Beijings claim in the area but seemingly contradicts prevailing international law.

China tried to procedurally undermine the Philippines arbitration case by raising both
jurisdictional and admissibility questions: It cited exemption clauses under the UNCLOS (Art.
298, Section 2, Part XV); questioning the competency of the arbitral tribunal adjudicate what
China characterizes as fundamentally sovereignty-related disputes; and argued that the
Philippines violated prior bilateral and multilateral agreements by resorting to compulsory
arbitration, a supposedly premature maneuver since both parties are yet to fully exhaust
available avenues of conciliation.

China even refused to participate in the arbitration proceedings. But the arbitration body
(under Art. 9, Annex VII) proceeded with examining the Philippines complaint despite the
absence of one party, though, in accordance to Art. 5, Annex VII, it consistently provided, in
various stages, Beijing the opportunity to defend its case whether through official (i.e.,
counter-memorial submission) or indirect channels (e.g., public statements, position papers,
etc.)

Last October, the Philippines officially overcame both the jurisdiction and admissibility
hurdles when the arbitral body announced that it will push through with examining the
merits of almost half of the items in the Manilas memorial, mostly concerning purely of
bilateral significance, particularly the nature of disputed features in the Philippines EEZ; the
ecological impact of Chinas reclamation activities in the area; and the alleged harassment
of Filipino fishermen by Chinese coast guard forces.

With the respect to the remaining items, particularly the validity of Chinas nine-dashed-line
claims and its historical rights/waters doctrine, the arbitral body will examine the question
of jurisdiction and their individual merit simultaneously.

Tough choices

The verdict is expected to come out on July 12. Most experts agree that the outcome will be
largely unfavorable to China, which has desperately sought to undermine the legitimacy of
the arbitral body, claimed to have rallied up to 40 (poor and dependent) countries to
question the Philippines legal maneuver, and has sought to reach out to President Rodrigo
Duterte, who has expressed his openness to engagement and finding a modus vivendi with
China in the West Philippine Sea. Of course, it remains to be seen whether the Duterte
administration will fully leverage the arbitration verdict or, alternatively, decide to set it
aside in order to revive frayed ties with China.

A largely favorable outcome would give the Duterte administration great leverage to extract
Chinese concessions -- non-imposition of an ADIZ, mutual disengagement from Scarborough
Shoal, non-harassment of Filipino fishermen and troops in contested waters -- in the West
Philippine Sea in exchange for not releasing a strong statement on the need for compliance
shun using the verdict to diplomatically embarrass China. But this will surely estrange
America, Japan and other traditional partners.

Of course, there is also the possibility that the verdict will not be favorable to the Philippines,
especially if the court issues an indeterminate, obfuscated verdict and shoots down Manilas
arguments in terms of their merits, particularly the one concerning Chinas nine-dashed-line
claims and doctrine of historical rights.

It is possible that the court will resort to very vague legal semantics to provide China some
room to save face and not antagonize the powerful country, which has threatened to
withdraw from UNCLOS altogether if it confronts a prejudicial outcome. In this case, Duterte
has minimal leverage on China, but he can still open up communication channels, albeit
form a weaker negotiating position, by disowning the whole arbitration proceeding as the
folly of his predecessor.

There is a third, middle-way option. Both parties can, upon mutual consent, agree to the
creation of a conciliation commission (under Article 1, Annex V of UNCLOS), which allows
both parties to project their supposed respect for international law, preserve diplomatic
channels, and address their overlapping claims with the guidance of a mutually-accepted
panel of legal experts, who can only provide legal advise but issue no binding verdict. Then
again, this option also carries its own risks and there is no guarantee that alternative
UNCLOS-based mechanisms will meaningfully alter Chinas behavior.

Much will also depend on how America and other major naval powers will utilize the
arbitration verdict to justify more regular, wide-ranging and multilateral Freedom of
Navigation Operations (FONOPs) in the West Philippine Sea, aimed at reining in Chinese
assertiveness in the area.

What is at stake is not only regional security in Asia, which has been heavily undermined by
the increased militarization of territorial disputes, but also shared access to global commons
in accordance to modern international law.

It is a clash between Chinas territorial and closed seas vision of adjacent waters, on one
hand, and the international communitys call for open seas and rule of law in international
waters, on the other.