HEGEMONY VS.
COOPERATION IN ENCLOSED SEAS
Ambassador Jaime S.
Bautista, Doctor of Laws
During President Ferdinand Marcos’ State Visit to China in
1975 to establish diplomatic relations, among China’s leaders he met was First
Vice-Premier Deng Xiaoping. During this
meeting, Marcos raised the issue of the Spratlys but Deng said that this issue
should be left to future generations to discuss.
China lays claim to all of the waters, all of the seabed, and
all of the maritime features within the so-called “nine dash line” which covers
the Paracel and Spratly Islands and almost the whole of the South China
Sea. On 7 May 2009, China submitted a
map to the UN officially depicting the “nine dash line”, provoking immediate
diplomatic protests from the Philippines, Vietnam, and Malaysia for violating
the UN Convention on the Law of the Sea (UNCLOS). Indonesia also protested even though
Indonesia has no claims in the South China Sea.
All these ASEAN countries and China are Parties to the
UNCLOS, along with most countries of the world.
Only some are not Parties like the United States. Nevertheless, the provisions of UNCLOS on the
exclusive economic zone (EEZ) and the Continental Shelf (CS) are accepted as
having become part of customary international law.
Like other coastal states, China has its own exclusive zone
of fishery resources in its 200 miles of EEZ and it also has exclusive
sovereign rights over the mineral (and oil) resources in its CS. But China’s
“nine-dash line” encroaches on the EEZ and CS of the Philippines (and
other ASEAN neighbors), thereby provoking tension in the region.
In the nineteenth century, war was the ultimate recourse to
settle disputes between states. The
Kellog-Briand Pact signed in Paris in 1928 between the United States and France
and adhered to by other countries sought to outlaw war as a means of settling
disputes. The UN Charter has since
outlawed not only the use of, but also the threat of force. It further provides that “Parties to any
dispute, the continuance of which is likely to endanger 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.” It further provides
that the Security Council may investigate any dispute which may endanger the
maintenance of international peace and security and that any Member of the
United Nations may bring any such dispute to the attention of the Security
Council or of the General Assembly.
Following the UN Charter, UNCLOS has explicitly imposed the obligation
of settling disputes by peaceful means regarding the interpretation and
application of its provisions. It
requires Parties to a dispute to proceed expeditiously to an exchange of views
on settling a dispute by negotiation or other peaceful means.
To ensure that there should be a peaceful settlement, UNCLOS
further provides for a choice of four compulsory procedures entailing binding
decisions to put an end to the dispute, namely referral to the International
Tribunal of the Law of the Sea (ITLOS); the International Court of Justice; an
Arbitral Tribunal under ITLOS; or a Special Arbitral Tribunal for special
categories of disputes.
Where there is no agreement on the compulsory procedure, the
issue may be submitted to compulsory arbitration under the International
Tribunal of the Law of the Sea. This
represents yet another step in the progressive development of international law
to secure the peaceful resolution of international disputes.
In the Twenty First Century, the weaker Powers to a dispute
should be able to rely on the Rule of Law to resolve a dispute. In fact, all states should negotiate legal
disputes on the basis of international law.
If China has been embarrassed by the arbitration case filed by the
Philippines, it is not the Philippines’ fault.
From the time that the Philippines established diplomatic
relations with China, the Philippines has offered to discuss its dispute with
China on the South China Sea as manifested during the meeting between Marcos
and Deng Xiaoping. This meeting gave us
the impression of the People’s Republic of China as a Power with an attitude of
restraint and flexibility in solving disputes.
At that time, China was in a period of recovery and
consolidation. The Government of the
People’s Republic of China was not China’s de jure government as far as the
United States was concerned. It was also
at odds with the other superpower, the Soviet Union. It was a time when China had emerged from a
civil war, and before that, had languished as a weakened Power during the Qing
dynasty, subjected to unequal treaties and the loss of territories like Hong
Kong and Macao.
China’s priority then was to strengthen its ties with the
Third World, and with those socialist countries of the Second World aspiring to
limit the influence of the Soviet Union.
For this purpose, China was the constant host of visiting Heads of
State. This gave me the experience, during my assignment in Beijing (1976-79),
of meeting a number of Heads of State at the welcome/departure ceremonies and
at the welcome/return banquets at the Great Hall of the People. Seven of those with whom I shook hands were
later assassinated, executed or deposed.
A number of generations have passed since the Marcos meeting
with Deng. Recent events have shown
China showing off its military muscle and provoking tension in our region. In so doing, China has acted no differently
from any other rising power seeking to expand its influence and to attain
hegemony (dominance) in our region.
Indeed, the image of China as a non-hegemonic Power has been
smashed by China’s illegal occupation in 1994 of Mischief Reef (Panganiban
Reef), a submerged bank
approximately 130 miles west of Palawan and clearly part of the Philippines’
continental shelf under UNCLOS. Mischief
Reef is not an islands or rocks over which a state may claim territorial
sovereignty and is more than 600 miles southeast of China’s Hainan Island, the
nearest Chines land territory.
China has also illegally occupied McKennan Reef (Chigua
Reef), a low tide elevation
approximately 180 M west of Palawan Island and also part of the Philippines’
continental shelf, and not an island or rocks. In both these reefs, China
illegally constructed artificial islands on top of them despite Philippine
protests.
The Chinese occupied Mischief Reef by taking advantage of
the closure of the American bases at Subic and Clark. For many years, the Philippines had relied on
the United States for its external defense.
When the Philippine Senate voted to remove the American bases, our
leaders lacked the foresight to anticipate the forcible occupation of our
maritime territory and CS.
Unfortunately, the Philippines did not learn from China’s
occupation of Mischief Reef and McKennan Reef.
The alarm sounded by Congressman Roilo Golez in a privileged speech in
Congress that Scarborough Shoal (Bajo de Masinloc) would be the next logical
target of China’s expansion went unheeded. The Philippines simply placed its
trust on diplomacy and was content to negotiate a Declaration of Conduct in the
South China Sea for ASEAN countries and China to observe. Unlike Indonesia, Malaysia, Vietnam and the small
island state of Singapore, the Philippines chose not to fund strong armed
forces to deter aggression.
The prediction that
China would illegally occupy Scarborough Shoal has come to pass. This shoal was under the effective exercise
of jurisdiction by the Philippines with a small lighthouse in one of the islets
of the shoal. In 1992, the Philippine
Navy rehabilitated this lighthouse and reported it to IMO for publication in
the List of Lights. The shoal was also
used as an impact range by the Philippine and US Naval Forces stationed in Subic
Bay for defence purposes.
Because of this recent violation, the Philippines and its
ASEAN partners are now engaged again in negotiations to persuade China to agree
to a legally binding Code of
Conduct. But this time, the Philippines
has availed of its legal remedy under UNCLOS.
The Philippines has been careful in the ITLOS Arbitral Tribunal not to
raise the issue of sovereignty over Scarborough Shoal which, under UNCLOS, are
considered to be rocks with a territorial sea.
{It is not considered an island because it is not capable of sustaining
human habitation on its own.) The Philippines, however, has complained that our
fishermen are being deprived of access to fish in our own EEZ.
The defense of our maritime zones and islands should be
based on at least a tripod of strategies: Rule of Law, Diplomacy, and Strong
Armed Forces, coupled with strategic alliances depending on the perceived
threats. The third leg is still missing,
although it is a prime duty of our Armed Forces and our Government, under our
Constitution, “to secure the sovereignty of the State and the integrity of the
national territory. “
Our hesitation to provide strong armed forces may be due in
part to a perception that China does not seek hegemony, despite China’s claim
to almost the entire South China Sea as its own lake, and despite China’s
illegal occupation of part of our territory and continental shelf.
We forget that China’s history, like those of other empires,
has shown periods of expansion of its territory from the heartland of the Han
people, and alternating periods of contraction of its empire. At the height of its power, China’s conquests
extended across the Pamirs to the shores of the Caspian Sea, incorporating many
nationalities including the Uighurs of Turkish origin and the Tibetans. In the northeast, China exercised suzerainty
over parts of Korea and in the southwest, China engaged in battles over the
centuries with Vietnam. China, however,
has not been a maritime power, except during the Ming dynasty in the fifteenth
century when the legendary Zheng He’s fleet reached parts of the Middle East
and East Africa. Yet China, now a rising
Power, claims territories across the sea.
Soon, China may send a new Ambassador to Manila. We should then receive signals whether China
is ready for peaceful cooperation in the disputed enclosed seas, which border
China and contain the world’s three great archipelagoes, at the center of which
is the Philippine Archipelago with its Luzon Sea renamed West Philippine Sea. Over the course of time, through diplomacy,
the countries in our region might find a strategic balance, removing security
threats and establishing a zone of peace and friendship for all countries.
