Ambassador Jaime S.
Bautista, Doctor of Laws
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.”
