Photo: JAM STA ROSA/AFP via Getty Images
Next year will mark the tenth anniversary of the Philippines’ legal victory in the South China Sea. On July 12, 2016, five judges in the Permanent Court of Arbitration in The Hague tossed out much of Beijing’s claim to the disputed waterway. According to Annex VII of the UN Convention on the Law of the Sea (UNCLOS), their ruling was final and binding on both China and the Philippines. But after nearly a decade, China still refuses to comply, and the Philippines has little to show for its victory. That does not, however, make the ruling a dead letter. It remains Manila’s best tool to maneuver Beijing into a compromise. And the United States and its partners must back the Philippines if they hope to defend core components of the international system. That should start this year in the United Nations, which recent history shows to be surprisingly effective against great powers-turned-sore losers.
For six years, the Philippine government under President Rodrigo Duterte swept its arbitral victory under the rug. This allowed China to escape the reputational damage that might, eventually, convince it to seek a fair accommodation with its neighbor. That has changed since Ferdinand “Bongbong” Marcos Jr. assumed the presidency in July 2022. The Philippine government has become more active in patrolling its waters and launched a transparency effort to show the world China’s illegal actions therein. As a result, the Philippines has been able to rapidly deepen alliances and partnerships with like-minded states and has more than tripled the number of governments publicly calling on Beijing to comply with the ruling—from just 8 when Marcos took power to 26 (plus the European Union) today.
Since last year, Philippine officials have been exploring the possibility of a second arbitration. At least two options seem to be under consideration: a second arbitration under UNCLOS Annex VII, which would likely focus on environmental damage caused by China; or a broader case, in a venue that has not been clearly articulated. In addition, during the annual session of the United Nations General Assembly in September 2024, the Philippines gathered senior officials from more than 20 countries “to give a signal to China” that Manila is not isolated on the South China Sea disputes. Such legal and diplomatic options are mutually reinforcing. In fact, making greater use of the United Nations would expand Philippine options for arbitration.
The United Nations cannot compel China to comply with the 2016 arbitral award or to cease its illegal behavior in the South China Sea. With Beijing’s permanent seat on the Security Council, the United Nations wouldn’t even be able to pass a binding resolution to that effect. But the General Assembly would be able to pass nonbinding resolutions and, most importantly, forward the matter to the International Court of Justice (ICJ) for an advisory opinion. It has a history of doing both in disputes pitting small states against larger powers, even those on the Security Council. And if Manila takes that path, it is almost certain to have the votes it needs.
The most illustrative, and recent, example is that of Mauritius and the United Kingdom regarding the Chagos Archipelago. There are other cases, for instance, Nicaragua versus the United States or the Arctic Sunrise case between Russia and the Netherlands, in which arbitration and international pressure elicited partial compliance from intransigent larger powers. But the patience and use of multiple venues by Mauritius makes it a particularly useful blueprint for the Philippines.
The United Kingdom separated the Chagos Archipelago from Mauritius in 1965, granting the latter independence and incorporating the former into the British Indian Ocean Territory. It then expelled the local Chagossian population and leased most of the island of Diego Garcia to the U.S. military. Mauritius formally claimed sovereignty over the islands in the 1980s and the sovereignty dispute festered for decades.
Mauritius decided to tackle the issue head-on when the United Kingdom declared a marine protected area around the Chagos Archipelago in 2010. The following year, Mauritius filed an arbitration case under UNCLOS Annex VII, the same procedure the Philippines would use two years later to bring its case against China. The tribunal ruled unanimously in 2015 that the UK marine protected area was illegal, with two of the justices in a concurring opinion arguing that the United Kingdom should be forced to hand over the islands to Mauritius. But where the Philippines let its victory lie dormant, Mauritius kept going.
In 2017, Mauritius took the issue to the UN General Assembly, asking that the question of sovereignty over the islands be referred to the ICJ for an advisory opinion. Such an opinion is nonbinding but carries considerable weight within the UN system and is the only way to bring a sovereignty dispute to an international court without the acquiescence of both parties. Mauritius carried the vote 94 to 15, with 84 states absent or abstaining. The ICJ in 2019 found that the United Kingdom’s separation of the islands from Mauritius had been illegal and they should be turned over. Mauritius then went back to the General Assembly, which voted 116 to 6 that the United Kingdom should abide by the court’s opinion. Two years after that, the International Tribunal on the Law of the Sea determined on the basis of the ICJ opinion that it could treat Mauritius as sovereign over the Chagos Archipelago to delimit its maritime boundary with the neighboring Maldives.
These international embarrassments led to pressure from constituents at home, including the Chagossian population in the United Kingdom, and from the United States, which urged London to resolve the matter while preserving its lease to Diego Garcia. As a result, the Conservative governments of Liz Truss and Rishi Sunak begrudgingly opened negotiations with Mauritius, and the Labour government under Prime Minister Kier Starmer last year announced a preliminary deal had been reached. The new government of Mauritius has pushed back, reportedly seeking more financial support as part of the agreement, but both sides remain publicly committed to finalizing the turnover. The broad outlines of the deal would transfer sovereignty to Mauritius while preserving U.S. and UK military use of Diego Garcia.
The Philippines has been more anxious than Mauritius about going to the United Nations, fearing China’s clout. Then-foreign secretary Teodoro Locsin Jr., who had previously served as the Philippines’ ambassador to the United Nations, tweeted in 2019, “We will lose in [the] UN which is dominated by countries grateful to China for its indisputable generosity in development aid.” Salvador Panelo, who served as presidential spokesperson for the Duterte government, called any such attempt a “futile exercise.” But the evidence suggests otherwise.
The General Assembly has never shown much deference to great powers. On the resolutions related to the Chagos Archipelago, even the United Kingdom’s European allies abstained rather than support it. Throughout the 1980s, Nicaragua won every vote it brought against the United States by overwhelming margins. And nearly all member states ignore U.S. efforts to shield Israel from annual condemnatory votes for its actions in Gaza and the West Bank. More recently, Russia lost four votes in 2022 and 2023 related to its invasion of Ukraine. Even the closest, on its suspension from the UN Human Rights Council, passed 93 to 24 with 58 abstentions.
Admittedly, China has more influence than Russia and is far more punitive than the United States or the United Kingdom. But fear of reprisal has not historically translated to support in the United Nations, only to abstention. So how many votes could each side expect should a South China Sea vote come up in the General Assembly?
Based on public stances, the Philippines could count on at least 44 votes: those of the 27 countries that have already called for China to comply with the 2016 ruling, plus most of the 21 others who have issued positive statements about the arbitration (Croatia, Hungary, Malaysia, and Timor-Leste are likely abstainers among that group). China, by contrast, has public support from only seven member states, two of which (Montenegro and Vanuatu) would be likely to abstain. That leaves 139 member states with no public stance on the South China Sea. But their likely votes can be predicted based on past behavior.
The U.S. Department of State tracks how often other UN member states side with the United States on the most important UN resolutions each year. The department defines these as “votes on issues which directly affected important United States interests and on which the United States lobbied extensively.” Washington, along with many allies and partners, would lobby hard on behalf of Manila, making this a reasonable proxy. The Philippines could expect support from those countries that shared the U.S. position on at least 60 percent of contentious votes over the last five years. These countries usually break with the U.S. position only when it is extremely isolated, such as on Israel-related votes. On the other side, China might be able to rally those countries that opposed U.S. preferences at least 60 percent of the time. Those in between are likeliest to abstain. This means the Philippines could expect to carry a South China Sea-related vote by at least 62 to 44, with up to 87 abstentions.
Losing a General Assembly vote would not compel Beijing to suddenly abide by the South China Sea arbitration or to enter fair negotiations with Manila. But repeated losses in different international bodies would raise the costs of noncompliance and make a face-saving compromise progressively more attractive. The Philippines has plenty of options to start down this path and the General Assembly could give it even more.
Manila could file a resolution demanding compliance with the 2016 arbitration, which Manila would win. It could file another seeking an ICJ advisory opinion on any number of issues, such as whether China’s behavior violates international treaties including the UN Charter and the International Regulations for Preventing Collisions at Sea. It would win that too, which would lead to yet another vote demanding China’s compliance. Manila’s margin of victory could be expected to grow with each vote, as happened for Mauritius.
International law is not self-enforcing. An arbitral victory is only useful if the aggrieved state uses it to rally international support, impose costs, and eventually compel at least partial compliance. Under President Marcos, the Philippines has belatedly started to utilize its arbitral victory. Now it should take the issue to the world stage, and the United States should be ready to help whip up votes.
Gregory B. Poling is a senior fellow and director for the Southeast Asia Program and the Asia Maritime Transparency Initiative at the Center for Strategic and International Studies in Washington, D.C.
