THE ARBITRATION CASE FILED BY PH AGAINST CHINA AFFECTS ALL COUNTRIES, WHETHER COASTAL OR LAND-LOCKED

Ambassador Jaime S. Bautista, Doctor of Laws

jaime@jaimesbautista.com

THE ARBITRATION CASE FILED BY PH AGAINST CHINA AFFECTS ALL COUNTRIES, WHETHER COASTAL OR LAND-LOCKED

The cataclysm wrought by the tsunami-like waves of super-typhoon “Haiyan” has touched people from all over the world.  Nature’s fury has once again humanized mankind.  The warships of nations who fought in the decisive Battle of Leyte are now converging at this island, to cooperate and provide humanitarian relief.

In times of great human suffering, it is not timely to write about discord, but to reflect on goodwill and understanding.  In this context, I write about the arbitration requested by the Philippines for the peaceful resolution of its dispute with China in the West Philippine Sea.

The Philippines brought this request for arbitration in accordance with Chapter VI of the UN Charter entitled “Pacific Settlement of Disputes”.  Article 33, Paragraph 1 thereof provides: “The Parties to any dispute, the continuation of which is likely to endanger the maintenance of international peace and security, shall first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”

The Philippines has chosen to bring this arbitration before the International Tribunal of the Law of the Sea (ITLOS), in accordance with the provisions of Part XV of the UN Convention of the Law of the Sea (UNCLOS) entitled: “Settlement of Disputes” since the dispute has been the subject of good faith negotiations between the Philippines and China since 1995.

If the Philippines should win the case, China should be expected to comply with the arbitral decision of ITLOS established under UNCLOS.  China has treaty obligations as a Party to UNCLOS and is not only a member of the United Nations but also a Permanent Member of the UN Security Council.  The Philippines does not stand alone on the issues before ITLOS and expects international law to be respected.

The arbitration case raises issues affecting all the countries of the world, both coastal and land-locked.

According to the Philippines’ Notification for Arbitration, China claims “sovereignty” or “sovereign rights” over some 1.94 million square kilometers, or 70% of the South China Sea’s waters and underlying seabed within its so-called “nine dash line.”  Unless China retreats from this position, China would be claiming “sovereignty” or “sovereign rights” over part of the high seas as well as part of the Area defined in UNCLOS as the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction.   The Area and its resources, according to Articles 136, 137 and 140 of UNCLOS, are the common heritage of mankind and cannot be claimed or appropriated by any State but are vested in mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States. 

China’s “nine dash line” also raises the issue of freedom of navigation in the high seas, which affects

all maritime and trading nations, including the other Permanent Members of the UN Security Council.

Furthermore, the issues raised by the Philippines over its sovereign rights its its Exclusive Economic Zone and over the submerged features in its continental shelf are the same issues that Brunei, Malaysia and Vietnam have with China and, therefore, would have an impact on China’s relations with ASEAN.

All states expect international law to be respected,   especially by those aspiring to be a leader of the international community.  There are great costs to those states who violate treaty obligations of a fundamental nature entered into by the great majority of States.

China’s “Nine Dash Line” Cuts Across - and Cuts Off - PH EEZ and Continental Shelf; No Philippine President Can Ignore Remedy Of Arbitration Available Under UNCLOS

Ambassador Jaime S. Bautista, Doctor of Laws

jaime@jaimesbautista.com

China’s “Nine Dash Line” Cuts Across -  and Cuts Off -  PH EEZ and Continental Shelf;  No Philippine President Can Ignore Remedy Of Arbitration Available Under UNCLOS

The complaint for arbitration against the People’s Republic of China filed with the International Tribunal of the Law of the Sea is mainly to defend the Philippine’s sovereign rights over its continental shelf and exclusive economic zone, and to reserve the right to request for provisional measures should these become necessary.   

The UN Convention on the Law of the Sea (UNCLOS), to which both the Philippines and the People’s Republic of China are States Parties, determines the legal order of the oceans and seas and defines the maritime areas of coastal states.    Under UNCLOS, coastal States are entitled to have the following maritime areas as defined therein: territorial sea, contiguous zone, exclusive economic zone (EEZ) and continental shelf.    

If there should be a dispute concerning the maritime areas of coastal States, like its EEZ and its continental shelf, Part XV of UNCLOS provides for the regime of settlement of disputes concerning the interpretation and application of the Convention.  As the Philippines’ complaints in the arbitration case have been the subject of good faith negotiations between the Philippines and China, the Philippines has chosen to bring this arbitration before the International Tribunal of the Law of the Sea.

The Philippines’ request for arbitration of its maritime areas does not call for the determination of which Party enjoys sovereignty over any island claimed by both the Philippines and China or over any other island in the South China Sea.  This is because, unlike the preliminary question of what constitutes an island, what are rocks, and what are maritime features that form part of the continental shelf, which are determined by the provisions in UNCLOS, the issue of who has sovereignty over an island is determined by the general principles of international law on acquisition and loss of territory.  The territorial issue of sovereignty can be brought to the International Court of Justice or to arbitration only with the consent of the States concerned.  In the case of arbitration of maritime areas before ITLOS, the advance consent was given by States upon becoming Parties to UNCLOS. 

Because of the remedy available to the Philippines under Part XV of UNCLOS, no Philippine president could have ignored legal advice to pursue arbitration to defend the Philippines’ sovereign rights over its EEZ and Continental Shelf.

Part V of UNCLOS provides that the EEZ is an area beyond and adjacent to the territorial sea, which shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

In the EEZ, the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, and other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds.  The coastal state also has jurisdiction for the establishment and use of artificial islands, installations and structures; marine scientific research; and the protection and preservation of the marine environment.   On the other hand, other States enjoy freedom of navigation in the EEZ.

Under Part VI of UNCLOS, the continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of two hundred nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

Under Article 77 of Part VI, the coastal State exercises over the continental shelf sovereign rights for the purpose of exploring and exploiting its natural resources.  These rights are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the Coastal State.  The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.

Under Part VIII, Article 121 of UNCLOS entitled “Regime of Islands”, an island is a naturally formed area of land, surrounded by water, which is above water at high tide.  Its territorial sea, contiguous zone, exclusive economic zone, and continental shelf shall be determined in accordance with the provisions of UNCLOS applicable to other land territory, except when they are rocks which cannot sustain human habitation or economic life of their own in which case they shall have no exclusive economic zone or continental shelf.

In its Notification and Statement of Claim presented to the ITLOS Arbitration Tribunal, the Philippines complained that China has unlawfully exploited the living and non-living resources in the Philippines’ EEZ and Continental Shelf and that China has unlawfully prevented the Philippines from exploiting living and non-living resources within its EEZ and Continental Shelf.  The complaints are summarized as follows:

China has unlawfully seized parts of the Philippines’ Continental Shelf, namely

Mischief Reef (Panganiban Reef) which is a submerged bank approximately 130 M from Palawan and more than 600 M southeast of China’s Hainan Island, the nearest Chinese land territory; and McKennan Reef (Chigua Reef), a low tide elevation approximately 180 M west of Palawan Island.  In both cases, China has unlawfully constructed buildings and other facilities on stilts and concrete platforms, despite Philippine protests.  Furthermore, China has also wrongfully sought to prevent Philippine vessels from approaching Mischief Reef and McKennan Reef even though the surrounding waters are within the Philippines exclusive economic zone.

 China has also seized Scarborough Shoal (Bajo de Masinloc), which are literally six small rocks that protrude above sea level within the Philippines’ exclusive economic zone, and has wrongfully prevented the Philippines from navigating, or enjoying access to the living resources within this zone, even though it forms part of the Philippines EEZ.  None of the rocks, which lie in close proximity to one another, generates entitlement to more than a 12 M territorial sea. Yet, China, which like the Philippines claims sovereignty over Scarborough Shoal, claims a much larger maritime zone for itself, to the limit of the “nine dash line” approximately 70 M to the east.  Until April 2012, Philippine fishing vessels routinely fished in this area which is within the Philippines EEZ.  Since then, China has prevented the Philippines from fishing at Scarborough Shoal or in its vicinity and undertaken activities inconsistent with the Convention.  Only Chinese vessels are now allowed to fish in these waters, and have harvested, inter alia, endangered species such as sea turtles, sharks, and giant clams which are protected by both international and Philippine law.

The Philippines also complained that China, by claiming almost the entirety of the South China Sea, has unlawfully interfered with the exercise by the Philippines of its rights to navigation and other rights under the Convention in areas within and beyond the 200 M of the Philippines’ archipelagic baselines.   The complaints are summarized below:

Specifically, China claims “sovereignty” or “sovereign rights” over some 1.94 million square kilometers, or 70% of the Sea’s waters and underlying seabed within its so-called “nine dash line.”  In the east, the “nine dash line” depicted in China’s letter of 7 May 2009 to the United Nations Secretary General is less than 50 M off the Philippine Island of Luzon.  In the southeast, it is within 30 M from Palawan. In both respects, it cuts through – and cuts off – the Philippines 200 M exclusive economic zone and continental shelf, in violation of UNCLOS.  Within the area encompassed by the “nine dash line”, China has engaged in conduct that has unlawfully interfered with the Philippines right of navigation, notwithstanding that some of the area is in the Philippines’ own exclusive economic zone, and the rest is high seas.     

The Philippines maintains that China’s claims in the South China Sea based on its so-called “nine dash line” are contrary to UNCLOS and invalid.  Submerged features in the South China Sea such as the Gaven Reef and the Subi Reef, which are located respectively 205 M northwest of Palawan and 230 M west of Palawan, not being above sea level at high tide, and not located in the coastal State’s territorial sea, are part of the seabed and cannot be acquired by a State, or subjected to its sovereignty, unless they form part of that State’s Continental Shelf under Part VI of UNCLOS.  Johnson Reef located approximately 180 M northwest of Palawan, Cuarteron Reef located approximately 245 M west of Palawan, and Fiery Cross Reef located approximately 255 M west of Palawan, though having a few rocky protrusions at high tide, are uninhabitable and incapable of supporting economic life in their natural state, and are, therefore, rocks within the meaning of Article 121 (3) of UNCLOS, and cannot have maritime zones greater than 12 miles surrounding them.  Moreover, in the case of   Johnson Reef, the maritime zones claimed by China unlawfully encroach upon the Philippines’ 200 M exclusive economic zone and continental shelf extending from Luzon and Palawan, and prevent the Philippines from enjoying its rights under the convention within 200 M.

In June 2012, China formally created a new administrative unit under the Province of Hainan, and placed the entire maritime area within the “nine dash line” under the authority of the province of Hainan, which in November 2012, promulgated a law that requires foreign vessels to obtain China’s permission before entering the waters within the “nine dash line”, and provides for inspection, expulsion and detention of vessels that do not obtain such permission.  The law went into effect on 1 January 2013.

The Chinese may be willing to wait a hundred years before resolving the maritime issues under arbitration but it is obvious that this is against the Philippines’ interest. The interests of our population are best served by obtaining the ITLOS’ Award determining what rightfully belongs to the Philippines under the UN Convention on the Law of the Sea and requiring China to comply with its international obligations under UNCLOS to respect these rights.  This is the peaceful and reasonable way of resolving legal issues between law abiding and friendly neighbors.  What is ours is ours and what is yours is yours.

Arbitration on the Philippines’ maritime areas is the first step to have fruitful discussions on the matter of joint cooperation in the enclave covering the area with territorial disputes in the West Philippine Sea/South China Sea relating to the Spratlys.  The Philippines is not involved with respect to the Paracels.  The Philippines has taken an initiative on the matter of joint cooperation in the WPS/SCS.  The Philippine vision was officially submitted during the ASEAN Ministerial Meeting at Bali, Indonesia in 2011 in a Philippine paper entitled “ASEAN-China Zone of Peace, Freedom Friendship and Cooperation in the WPS/SCS.”

    

Russia's Pivot to New Asia

Ambassador Jaime S. Bautista, Doctor of laws

Jaime@jaimesbautista.com

“Russia’s Pivot to New Asia’

With its own so-called “pivot from the West to the New Asia”, Russia is both an economic power, with its huge energy and mineral resources, and a military power second only to the United States, which can serve as a counterweight to China and the United States.  Over the long term, the Philippines can establish interlocking economic interests with Russia and other countries as additional/alternative  security guarantees.

During the Cold War, President Ferdinand Marcos made a strategic decision to open diplomatic relations with the Soviet Union to resist pressure from the United States.  The opening to socialist countries took place in stages.  The first step was to open an embassy in Bucharest as Romania was a communist country seeking an independent path in its foreign policy.  The second was to recognize Chairman Mao Tze-tung’s government as the de jure government of China before establishing diplomatic relations with the Soviet Union a year later.  This opening to the Soviet Union paid a small dividend for President Marcos.  After the result of the 1985 presidential election was proclaimed, the Soviet Ambassador called on President Marcos while the Ambassadors of the European Union member countries called on President Corazon Aquino.  The Philippines’ people power, the mother of peaceful revolutions, intervened and was decisive in pulling down President Marcos from his seat of power.

Russia’s shift of interest from the West to the East has taken time.    After the dissolution of the Soviet Union, Russia needed support from the United States and Europe because of its decision to replace its communist structure with a capitalist system.  However, the response from the United States was disappointing.  The European Union signed a Partnership and Cooperation Agreement with Russia to regulate their political and economic relations.

NATO likewise developed cooperative relations with Russia.  In 1993, Russia proclaimed a new military doctrine, implicitly acknowledging it was not a superpower.  With its status as a regional power, Russia signed the Partnership for Peace Program with NATO in 1994, and the agreement creating the Russia-NATO Council in 2002.  This Council handles security issues and joint projects in several sectors: fighting terrorism, military cooperation, cooperation on Afghanistan, industrial cooperation, and non-proliferation.

A development further linking Russia with the West was the informal arrangement   referred to as the Political 8 or G7+1 when the Group of 7, a forum of the wealthiest industrialized democracies, invited Russia in 1994 to hold separate meetings with their leaders, after the Group’s Summit Meetings.  Russia formally joined the Group in 1997, upon the invitation of the USA and the UK, resulting in the formation of the G 8.   

Russia’s concern during this earlier period was NATO.  Russia’s energy was spent in preventing the former satellite states in Eastern Europe from joining NATO and the EU.  Russia was also busy keeping intact the Commonwealth of Independent States, the loose federation of states which replaced the Soviet Union. 

The shift to the East has taken place in view of Russia’s need to develop the economy of its Asian regions and stop the diminution of its population in this region due to emigration for lack of employment opportunities and the falling birth rate. 

While being primarily focused in Europe, Russia had also taken steps to protect its territory east of the Urals and secure its interests in Central Asia.  This region is strategically important for Russia because it borders China, Iran, Afghanistan, and is close to Pakistan.  Towards this objective, the Eurasian Economic Community (EAEC) and the Collective Security Treaty Organization (CSTO) were established.  The EAEC seeks to build a single economic space among its members.   Its original members were the Customs Union of Russia, Belarus and Kazakhstan plus Kyrgystan and Tajikistan.  Uzbekistan joined later.

The CSTO was created in 2002 to deepen military-political cooperation among its members and provide national security on a collective basis.  It was formed by Armenia, Belarus, Kazakhstan, Kyrgyzstan, Russia and Tajikistan.  Uzbekistan joined later but suspended its membership in 2012.  The CSTO serves to keep the United States and other military Powers out of the CSTO region. Under Article 7 of the CSTO Charter, member states shall consult each other and adopt a decision on the stationing of groupings of forces in their territories and of military facilities of States which are not members of the Organization.  

Russia and the other CSTO’s members with borders with China (Kazakhstan, Kyrgyzstan, and Tajikistan) signed the “Treaty On Deepening Military Trust In The Border Areas”, forming the Shanghai Five.  Russia’s Far Eastern region is thinly populated and has borders 4,300 kilometers long with China. The Group was renamed the Shanghai Cooperation Organization (SCO) after Uzbekistan was admitted in 2001.  The SCO Charter, signed in 2002, sought to build on the “Shanghai Spirit” of mutual trust, equality, consultation, respect for different civilizations, and common prosperity.  The SCO seeks to combat the three evils of Terrorism, Extremism and Separatism, fight illegal narcotics, arms trafficking and other criminal activities of a transnational character, and contend with illegal migration. 

The Shanghai Spirit facilitated the signing of the treaty settling the demarcation of Russia’s long borders with China, paving the way for close relations between Russia and China.  This was manifested with the creation of BRIC composed of Brazil, Russia, India, and China, later renamed BRICS with the addition of South Africa. Significantly, President Xi Jinping’s first foreign trip after assuming his post was to Moscow.  He said that the close relations were based firstly, in a common belief in a multipolar world and secondly, in sharing a common interpretation of international law.  The first basis can be read as sharing the objective of reducing the influence of the superpower.  The second emphasizes the principles of equality, mutual respect and non-interference.

President Vladimir Putin said that Russia’s new relations with China, (and its shift to the New Asia) is based on three factors:  there is no longer any territorial issues with China; Russia is not threatened by China’s economic success, and on the contrary, Russia’s economic sail would benefit from the wind of China’s economy; and lastly, China has not given any signs of wishing to dominate.

Indeed, Russia sees itself as a Great Power with a proud history.   Although lagging behind in economic development, Russia is a greater military power than China and is a center of influence, with veto power in the UN Security Council.  It has the largest stockpile of nuclear weapons, the second largest fleet of ballistic missile weapons and the only country, apart from the USA, with modern strategic bomber force. Its surface navy and air force are among the largest in the world.  Russia’s   official military spending was reported as the third largest in the world.

An important element in strengthening Russia’s international position, according to Foreign Minister Sergei V. Lavrov, is to increase Russia’s presence in the Asia Pacific region.  He said that Russia has “strategic relations” with China, India and Vietnam, and “multidimensional ties with Japan, South Korea, the ASEAN countries, and other countries in the Asia Pacific region.  Russia is a Dialogue Partner of ASEAN and a member of the East Asia Summit (ASEAN plus 8).

Given that Russia has strategic relations with both China and Vietnam, it is interesting that Russia has not recognized China’s exaggerated claim over the South China Sea represented by the nine-dash line.  Vietnam has conflicting claim to the Paracel and the Spratly Islands.  On the other hand, it is noteworthy that China has not recognized the independence of Abkhazia and South Ossetia, which seceded from Georgia after the recent Russia- Georgia conflict.

 Russia’s presence in Asia and the Pacific is likewise manifested by its membership in ASEM and APEC.   ASEM is an informal process of dialogue and cooperation between the two regions of Asia and Europe, addressing political, economic and cultural issues.  It now brings together 51 partners: 10 ASEAN member states, ten Asian countries and the ASEAN Secretariat, on the one hand, and 27 European Union member states, 2 European countries, and the European Commission, on the other.  As a uniquely Eurasian country, Russia had the option to join ASEM either as a European or an Asian country.  Russia joined ASEM in 2010 as an Asian country, symbolic of a shift to the New Asia.

 

It is through APEC that Russia recently projected its presence in Asia Pacific, playing host at last year’s APEC Summit at Vladivostok.  The topics that the Summit focused on were: (1) Trade and Investment Liberalization; (2) Regional Economic Integration; (3) Strengthening Food Security; and (4) Intensive Cooperation to Foster Innovative Growth. 

In his address to the Federal Duma last December, President Putin spoke of food security, noting that Russia has 55 percent of the world’s arable land.  He said that Russia should strive to be self sufficient in all major types of food production and that Russia should become the world’s largest food producer.  In the same address, he also stressed that a priority for Russia would be improving the nation’s healthcare.

The areas of cooperation between the Philippines and Russia have been in tourism, gas and oil, shipping, aviation, agricultural products, cultural and sports cooperation, among others.  The Philippines has entered into a labor agreement with Russia which needs more health-workers. There are now more chartered flights arriving in the Philippines from Russia.  Gazprom, the Russian oil and gas giant, has expressed interest in exploiting gas reserves in the Philippines to manufacture liquefied natural gas.  There is interest on the part of Russia to buy coffee.  Over the long term, although the volume of trade with Russia is low at a little over US$1 billion, the prospects for increasing and multiplying the volume of trade and the areas for bilateral cooperation are promising, given that there are cordial relations between the Philippines and Russia without any friction.