South China Sea: Philippines ‘may be forced to sue’ if Chinese coastguard arrests trespassers

Former Philippine Supreme Court judge Antonio Carpio cited the International Tribunal on the Law of the Sea (Itlos) on Sunday as he proposed a counter to Chinese actions amid a growing war of words over the disputed waterway. Filipino lawmakers and officials echoed his suggestion.

The matter risks further escalating tensions in the South China Sea, where Manila and Beijing have been locked in a months-long dispute – fuelled by repeated Chinese obstructions of Philippine vessels trying to resupply Filipino forces stationed on an outpost on the Second Thomas Shoal.

“The Philippines can bring the validity of the arrest and detention, of both fishermen and fishing vessel, before an Unclos tribunal, which can order their release,” Carpio told This Week in Asia.

Unclos refers to the 1982 United Nations Convention on the Law of the Sea, which established Itlos, an independent judicial body. According its website, the 21-member tribunal is tasked with deciding maritime disputes concerning the interpretation or application of the convention, including “the delimitation of maritime zones”.

Carpio said China had no legal basis to arrest and detain Filipinos because “under Unclos, there is freedom of navigation and overflight in all high seas and EEZs of the world”.

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“China’s new coastguard regulation violates this fundamental Unclos principle, which is also a customary international law that binds all states, even non-members of Unclos,” he added.

“Assuming China participates, it can nominate one of the five [arbitral judges] as its representative. We nominate one also. The other three will be chosen by the Itlos president with the consent of