OF LAW AND POLITICS

Ambassador Jaime S. Bautista, Doctor of Laws

PH COMPLIED WITH UNCLOS TO WIN ARBITRATION

Now the country needs quiet negotiations in invoking the rule of law.

The Philippines won in almost all its submissions against China in the South China Sea award by the UN Convention on the Law of the Sea (UNLOS) Arbitration Tribunal, including the main issues that compelled the Philippines to urgently file the arbitration complaint, namely: that China had prohibited Philippine fishermen from exercising their historic rights to fish in Scarborough Shoal, and that China had unlawfully interfered with Philippine petroleum exploration in the Reed Bank which is within the Exclusive Economic Zone of the Philippines.  The Tribunal ruled that the decision is final and binding.

The ruling, however, declined the Philippines’ submission that, following the decision, the Tribunal should issue a Declaration that China shall respect the rights and freedoms of the Philippines and comply with its duties under the Convention. The Tribunal “noted that both the Philippines and China have repeatedly accepted that the Convention and general obligations of good faith define and regulate their conduct.” 

The Tribunal considered that “the root of the disputes at issue in this arbitration lies in fundamentally different understandings of their respective rights under the Convention in the waters of the South China Sea.”  The Tribunal recalled that it is a fundamental principle of international law that bad faith is not presumed and noted that Article 11 of Annex VII provides that the “award . . . shall be complied with by the parties to the dispute.”

Even inside the Philippines, there was difference of opinion on the issue of historic rights and the effect of the UNCLOS provision on these rights.  A group of Philippine lawyers opposed the enactment of Republic Act 9522 defining the Archipelagic baselines of the Philippines. This law was passed, on the recommendation of the Department of Foreign Affairs, to ensure that Philippine law conforms with UNCLOS, which the Philippines is bound to observe under the principle of pacta sunt servanda as a Party to this Convention. This was necessary to enable the Philippines to come to the UNCLOS tribunals with clean hands in case of need to protect its rights under the Convention.

The Petition before the Philippine Supreme Court to declare R.A. 9522 unconstitutional was based on the Philippines’ historic rights over waters passed by Spain to the United States. The Petition alleged that the archipelagic baselines defined in the law reduced Philippine maritime territory in violation of Article 1 of the 1987 Philippine Constitution.  The Petition argued that R.A. 9522 “dismembers a large portion of the Philippine territory because it discards pre-UNCLOS definition of national territory under the Treaty of Paris and related treaties, successively encoded under the 1935, 1973 and 1987 Constitutions.

The Petition was based on the Treaty Limits doctrine, which declares that what Spain ceded to the United States under the Treaty of Paris of 1898 were the islands and all the waters found within the boundaries of the rectangular area drawn under the treaty. According to this theory, the territorial waters of the Philippines extends hundreds of miles around the Philippine archipelago embracing the said rectangular area.  However, under UNCLOS, the territorial sea cannot extend beyond 12 miles from the baselines.

The Supreme Court understood that UNCLOS has nothing to do with the acquisition or loss of territory, which is governed by general international law on occupation, accretion, cession and prescription. The baselines are only statutory mechanisms for Parties to UNCLOS to delimit with precision the extent of their maritime zones and continental shelves. 

The Petitioners further objected to the declaration in R.A. 9522 that the Kalayaan Island Group (KIG) shall be determined as “Regime of Islands” because “this weakens our territorial claim” to KIG and results in a great loss of maritime area.   However, R.A. 9522 issued this declaration to make our claim consistent with article 121 of UNCLOS.  Article 121 enunciates the principle that the nature of the land, whether they are islands or rocks, determines its maritime entitlements.

The Supreme Court observed that the KIG was not included in the pre-UNCLOS baselines of the previous law and that the inclusion of the KIG within the Philippines archipelagic baselines would have resulted in the breach of two provisions of UNCLOS. Consequently, the treatment of KIG within the “regime of islands” was a responsible observance of the Philippine pacta sunt servanda obligation under UNCLOS.  Moreover, as noted above, under the UNCLOS “regime of islands”, land features generate their own maritime zones.

It may be noted that the Philippine Government, with all the three branches taking part, prepared well to use the Rule of Law as a shield to protect the Philippines’ maritime zones.  This is the first defense of countries against bigger Powers. The second plank in the defense of our national territory and maritime zones would be the use of diplomacy and political alliances, and the third should be credible armed forces as a deterrent to unlawful use of force.  

The legal strategy of the Philippines in the arbitration case was to question the basis of the 9-dash-line because it cuts across and attempts to deprive the Philippines of two thirds of its EEZ.  The Philippines also needed to demonstrate that China has no maritime zones overlapping our EEZ or continental shelf.  Once both of these were established, China would have no legal basis to remain in, or to threaten to occupy, any of the submerged features in our EEZ/Continental Shelf such as Mischief Reef, Reed Bank or the Second Thomas Shoal because they would clearly form part of our Continental Shelf.

It may be noted that the Treaty Limits doctrine is based on the theory of historic rights over waters in the high seas. The Arbitration Tribunal concluded that prior to UNCLOS, the waters of the South China Sea were legally part of the high seas.  The Tribunal further concluded that the 9-dash-line was a claim of historic rights to resources within the high seas, and that if such rights existed, it was extinguished by the Convention to the extent that they were incompatible with the Convention’s system of maritime zones because the Convention comprehensively allocates rights to maritime areas. China could not, therefore, claim historic rights to resources within the Philippines’ Exclusive Economic Zone.

The provision in RA 9522 designating the KIG as within the “regime of islands” allowed the Philippines to maintain that all of the land features within the so-called group of Spratly Islands are rocks without any EEZ.  As the land features in the so-called group of Spratly Islands would have only a territorial sea of 12 miles, their maritime zones would not overlap with the Philippines’ 200 mile EEZ/Continental Shelf in the West Philippine Sea/South China Sea.

The non-designation of baselines for the KIG likewise allowed the Philippines’ position to be in conformity with the Tribunal’s ruling that the Convention does not provide for a group of islands such as the Spratly Islands to generate maritime zones collectively as a unit.

With the absence of overlapping maritime zones between the Philippines and China, the Tribunal ruled that Mischief Reef, Second Thomas Shoal and the Reed Bank, being submerged at high tide, are neither islands or rocks, and form part of the EEZ and Continental Shelf of the Philippines. However, the Tribunal disagreed with the Philippines’ position that McKennan Reef, located within the Philippines EEZ, and Gaven Reef (North), located on the high seas, are submerged features, and ruled that both are high tide features and are, therefore, rocks with their own 12 mile territorial sea. 

The Philippines did not raise the issue of sovereignty over Scarborough Shoal, which is well within the Philippines EEZ, as this is outside the UNCLOS Arbitration Tribunal’s jurisdiction, which is limited to the interpretation or application of the UNCLOS Convention on maritime zones. Likewise, the Arbitration Tribunal does not have jurisdiction to decide which country has territorial sovereignty over McKennan Reef and Johnson Reef, both of which are also within the Philippines’ EEZ.  These three rocks are enclaves within the Philippines EEZ with a territorial sea of their own of 12 miles. Unfortunately, the Philippines cannot bring the issue of sovereignty over these rocks to the International Court of Justice or some other tribunal without China’s consent.

This is unfortunate because the UN Charter, under its Art 2 (3) requires Member States to settle their international disputes by peaceful means in such a manner that international peace, security and justice are not endangered, and its Art 2 (4) further provides that: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any manner inconsistent with the Purposes of the United Nations.”

On the other hand, as can be appreciated, the compulsory settlement of disputes by arbitration under the United Nations Convention on the Law of the Sea (UNCLOS) regarding the interpretation and application of its provisions is an example of the progressive development of international law to rule out force in the settlement of international disputes.  The States Parties to UNCLOS gave their prior consent to the compulsory settlement mechanism in UNCLOS by ratifying or acceding to the Convention.  This innovation under UNCLOS makes it possible that such disputes are settled within a reasonable time in a peaceful manner.

Since the arbitration ruling in favor of the Philippines is a final and binding award, the Philippines has the Rule of Law firmly in its favor.  China has the difficult task of opposing and maintaining its opposition to the Rule of Law.  Although the Arbitration Case was between the Philippines and China, the arbitration ruling benefits the rest of the world.  Vietnam has expressly recognized the jurisdiction of the Arbitral Tribunal while the Tribunal’s decision that the nine-dash-line has no legal basis also serves to defend the maritime claims of Malaysia, Brunei and Indonesia.  Since the Arbitral Tribunal has declared that the South China Sea, minus the maritime zones of the coastal states, is legally high seas, all the countries of the world enjoy the freedom of the high seas in the South China Sea, including the freedom of fishing.  The corresponding deep seabed under the high seas and its resources also pertain to all countries under the concept of common heritage of mankind.  

The Arbitration Tribunal noted that both China and the Philippines have repeatedly accepted that the Convention and general obligations of good faith define and regulate their conduct.  China needs a little time to resolve its internal debate on the arbitration ruling.  Skillful diplomacy and good faith on both sides may enable China to see the light at the end of the tunnel and comply with the provisions of the UNCLOS Convention.