The 2016 South China Sea Arbitral Award Five Years Later

I’m posting here links to a series of articles we have published in the last four months in the opinion pages of the Philippine Daily Inquirer (mostly) in the run up to the 5th anniversary of the 2016 South China Sea Arbitral Award.

This series really started with a conversation I had with a senior colleague, Dr. Melissa Loja, on what we see as a sorry state of public discourse on what the Arbitral Award really meant to national interest.


We thought the dominant narrative has actually failed to bring to the public attention the true import of the Arbitral Award for us. We thus sought to present an alternative analysis of the Arbitral Award. Thus we set out to write a series of short essays tackling key sections of the Arbitral Award and what we believe they meant, in the hope that the essays would open up new vistas on the question and re-direct the monologue we have been hearing in the last five years to a critical public discussion.

Yet I would say this series was really presaged by an earlier piece, written with Professor Prabhakar Singh of the O.P. Jindal Global Law School in India, that was published by the Inquirer in January this year:

Prabhakar Singh and Romel Bagares, ‘China between a Civilization and the State,’ Inquirer January 26, 2021.

I stress that we wrote on the fly, in reaction to the unfolding events. As we went on, we arrived at the conclusion that what we sorely need to make of the most of the gains won by the Philippines in the Arbitral Award is a new baselines law that would name and identify each of the rocks/high tide elevations in the West Philippine Sea we claim as ours, and mark out their baselines for measuring their entitlements to a Territorial Sea and, where appropriate, their Contiguous Zone.

This new series begins with Dr. Loja’s piece on the Julian Felipe Reef question.

1. The Arbitral Award did not declare that the waters of Julian Felipe Reef (JFR) are part of the Philippines’ exclusive economic zone (EEZ). That is not necessarily a bad thing.

Melissa Loja, ‘The SCS Arbitral Award and Julian Felipe Reef,’ Inquirer, April 21, 2021;

2. The elephant in the room in popular discourse about maritime entitlements won by the Philippines before the South China Sea (SCS) Arbitral Tribunal is the status of the Kalayaan Island Group (KIG).

Melissa Loja and Romel Bagares, ‘Should We Now Slay the Elephant in the Room’, Inquirer, May 2, 2021;

3. Presidential spokesperson Harry Roque’s recent statements over Julian Felipe Reef (JFR) evokes an urgent need to take stock of what we won and lost before the South China Sea (SCS) Arbitral Tribunal.

Melissa Loja and Romel Bagares, ‘Arbitral Award: What We Won and Lost’, Inquirer, May 19, 2021;

4. We borrow a famous question asked in 1902 by Vladimir Ilyich Ulyanov in a work of classic Marxist polemics to consider how to make the most out of the gains we won in our South China Sea (SCS) arbitral proceedings against China.

Melissa Loja and Romel Bagares, ‘Ph Arbitral Win: What is To Be Done,’Inquirer, May 29, 2021’;

5. Former chief justice Artemio Panganiban proposes that the justice secretary and the foreign affairs secretary form a team of “international jurisconsults” to strategize how to bring China to the International Court of Justice (ICJ) for the adjudication of our territorial and maritime claims in the West Philippine Sea (WPS).

Francis H. Jardeleza, Melissa Loja, and Romel Bagares, ‘All Options on the Table,’ Inquirer, June 22, 2001;

6. In 1951, the United States convened the San Francisco Peace Conference to discuss the fate of the Spratlys Islands. The Philippines, led by Carlos P. Romulo, took part in the conference but his delegation did not register a claim, unlike Vietnam or even China, and notwithstanding the exclusion of the Chinese from the conference.

Melissa Loja and Romel Bagares, ‘The Great Re-Set in the Spratlys Dispute,’ Inquirer, July 12, 2021, and

7. The 501-page 2016 South China Sea (SCS) Arbitral Award does not mention the Murillo Map at all. There are two reasons for this.

Melissa Loja and Romel Bagares, ‘Framing the Murillo Map Properly’ Inquirer,July 24, 2021.

8. Without naming names, University of the Philippines College of Law Associate Professor Jay Batongbacal recently posted insinuations on Facebook that an alternative analysis on the best way to move the discussion on Philippine interests in the West Philippine Sea boosts “Chinese misinformation.”

Francis H. Jardeleza, Melissa Loja, and Romel Bagares, ‘Against Legal Scholarship by Labeling‘, Philippine Star, July 29, 2021.

9. The West Philippine Sea (WPS) baselines law that we propose was initially opposed by Justice Antonio T. Carpio on the grounds that the rising seas will soon take over the disputed features in the WPS and render the proposed law useless, and that a presidential proclamation suffices. (added August 10, 2021, with further edits on the introductory paragraphs of this blogpost. This was written and submitted just days after a July 21 column by Justice Carpio. This also suffices as a response to a subsequent commentary by J. Carpio published on July 29. )

Francis H. Jardeleza, Melissa Loja, and Romel Bagares, ‘PH Realities Beyond the Arbitral Award,‘ Inquirer, August 10, 2021.

10. Like an urgent message from Middle-earth’s Rivendell to the Fellowship of the Ring, a note verbale (NV) concerning the Spratlys dispute issued unexpectedly out of New Zealand’s (NZ) Permanent Mission to the United Nations on Aug. 3.

Francis H. Jardeleza, Melissa Loja, and Romel Bagares, ‘Middle-earth’s Missive on the Spratlys,’ Inquirer, August 27, 2021. (updated August 28, 2021)

11. Recently, three Chinese coast guard vessels blocked two Philippine Navy (PN) ships en route to resupply soldiers stationed on BRP Sierra Madre, a state vessel beached on Ayungin Shoal. In the 2016 South China Sea arbitration, the Philippines complained about similar activities by China in the shoal. The Arbitral Tribunal held that the shoal is a low-tide elevation (LTE); as such, it is not the territory of any state (paragraph 309), but it accrues to the Philippines as part of the latter’s exclusive economic zone (paragraphs 646-647). Unfortunately, the tribunal characterized the activities of China in the shoal as military in nature and, therefore, excluded from its jurisdiction by the United Nations Convention on the Law of the Sea (Unclos) (paragraph 1161). What then is our legal recourse against continuing Chinese military activities in the shoal? May we sue China in the International Court of Justice (ICJ)?

Melissa Loja and Romel Bagares, ‘Suing China for peace, yet again, Inquirer, December 5, 2021.

12. The House of Representatives recently approved the maritime zones bill on third reading. It is a necessary and important proposed legislation for it embeds the Arbitral Award in the 2016 South China Sea (SCS) Arbitration in the Philippine domestic legal system. Section 10 declares that the Philippines shall exercise its sovereign rights in the exclusive economic zone (EEZ) and continental shelf (CS), including in the West Philippines Sea (WPS), in accordance with the Arbitral Award. No government may brush off the award. Courts may now interpret and apply it.
However, the bill deliberately left out unpalatable parts of the Arbitral Award.

Melissa Loja and Romel Bagares, ‘Warts and All,’ Inquirer, December 21, 2021 (updated on the same date)