OF LAW AND POLITICS

31^st ASEAN Summit :  Philippines should debunk the myths denigrating  UNCLOS Arbitration Award which upholds its Sovereign Rights.

Jaime S. Bautista

The Duterte Administration has pursued a foreign policy strategy that has had the beneficial effects of reducing the tension in the South China Sea, restoring good relations between the Philippines and China, and gaining respect for the Philippines’ geo-political strategic importance in the region.

With the Philippines’ Chairmanship of ASEAN coming to an end, it is still timely for the Philippines to mention and put on record the UNCLOS (UN Convention on the Law of the Sea) arbitration award.  It would be extraordinary if the Philippines were to be completely silent in ASEAN about the arbitration award that protects the Philippines’ 200-mile Exclusive Economic Zone and its Continentals Shelf under international law.  This is a forum where the Philippines can act as Chairman only once every ten years.

Myths Fomented by China

The Philippines has not mentioned the arbitration award in the ASEAN meetings to avoid offending China.  It has adopted a policy of refraining from citing the arbitration award in public forums while engaging China in bilateral talks to gain   economic benefits.  On the other hand, China has actively promoted the myths that the UNCLOS arbitration has no validity in international law and that the Philippines filed the arbitration case as a proxy of the United States.  But nothing is further from the truth.

The Philippines was constrained to file the arbitration proceedings because bilateral talks with China over the disputes relating to Mischief Reef and the Scarborough Shoal for a period covering 17 years showed no results.  China also claimed sovereign rights over the mineral resources in the Reed Bank, which is part of the Philippines’ Continental Shelf.  China based its claim on the 9-dash-line marked in Chinese maps, which covers almost the entirety of the South China Sea, virtually converting it into a Chinese lake.  This line encroached on over 2/3 of the Philippines Exclusive Economic Zone and Continental Shelf.   Clearly, the Philippines was not acting as anyone’s proxy in showing that the 9-dash-line has no legal basis.

Agreements Must be Kept

The Arbitration Tribunal had jurisdiction over the case under the provisions of the UN Convention on the Law of the Sea, to which both China and the Philippines are Parties as well as the great majority of states. The UNCLOS provides for a procedure for compulsory settlement over any dispute concerning the interpretation or application of the Convention, when there is no voluntary agreement.  This feature of the Convention represents the progressive development of international law to ensure peaceful settlement and avoid disputes from threatening peace or breach of the peace.  China could not refuse to accept the tribunal’s jurisdiction because of the principle of pacta sunt servanda. This principle of customary international law that agreements must be complied with in good faith is also at the heart of the UN Convention on the Law of Treaties, to which both the Philippines and China are likewise Parties.  As declared by the UNCLOS Arbitration Tribunal, its award is binding on China.  Vietnam recognized that the Arbitration Tribunal has jurisdiction over the case while Indonesia, Malaysia and other countries attended as observers.

The Philippines assailed the validity of the 9-dash-line to establish that it is entitled to a 200-mile Exclusive Economic Zone and Continental Shelf under the Convention.  China, on the other hand, claims to have pre-existing sovereign rights over 2/3 of the Philippines EEZ.  In deciding on this issue, the Tribunal examined the history of the Convention and its provisions on maritime zones. 

The Tribunal found that the intent of the Convention was to comprehensively allocate the rights of States to maritime zones.  The Tribunal noted that the question of pre-existing rights to resources, particularly to fishing, was intensively negotiated during the creation of the Exclusive Economic Zone.   A number of Western states wished to preserve historic fishing rights in the new zone but this was rejected.  Indeed, China played a leading role as leader of the developing countries in opposing the position of the Western States. 

No historic rights to high seas

With the rejection, the Tribunal found that China’s claim to historic rights, to the extent that it had in the waters of the South China Sea, was incompatible with the detailed allocation of rights and maritime zones in the Convention.  Such rights, if any, were extinguished by the entry into force of the Convention.  The Convention gave other states limited rights to fish only in the event that the coastal state was unable to harvest the full allowable catch, and it gave no rights to petroleum or other resources to other states, declared the Tribunal.

To complete its study, the Tribunal examined the historical record to determine whether China had historic rights to resources in the South China Sea and found China had none.  The Tribunal found that, before the Convention, the waters of the South China Sea were legally part of the high seas, in which ships from any state could freely navigate and fish.  Accordingly, China’s historical navigation and fishing were part of the exercise of the freedoms of the high seas.  There was no evidence that China had exercised exclusive control over the waters of the high seas and prevented other states from exploiting these resources, according to the Tribunal.

Beyond its territorial sea, China never enjoyed control of the South China Sea.  The whole area was high seas before the creation of the Exclusive Economic Zones under the Convention.  The 9-dash-line (except for China’s territorial sea and its own EEZ adjoining its mainland and islands as defined in the Convention) now encompasses either high seas or the EEZ of other coastal states. 

The principle of the freedom of the high seas demonstrated that the nine-dash-line has no legal basis.  Furthermore, like other countries, the Philippines has a stake in maintaining the legal status of the high seas and its freedoms, especially because the Philippines is strategically located at the center of the archipelagic continent.  China recognizes freedom of navigation but distinguishes between commercial and military ships. This article will not dwell on this complex issue but only to comment that, as long as China’s policies pose a threat to the Philippines’ enjoyment of its exclusive sovereign rights over its EEZ and Continental Shelf, the presence of navies of other countries in the South China Sea would be, on balance, in the interest of the Philippines.

The Area

Finally, the 9-dash-line violates another principle of the Convention.  Below the high seas is “The Area” reserved for the Common Heritage of Mankind and no country can appropriate The Area. The oil and mineral resources in The Area are for the benefit of all the nations of the world, including the Philippines.  The Common Heritage of Mankind and the nature of the Exclusive Economic Zone underscore the illegality of the 9-dash-line.  This point is also touched on in the Arbitration Award.

It is in the interest of the Philippines to mention the Arbitration Tribunal Award and include it as part of the strategic discourse in the ASEAN and Related Summits.  The Award favors not only the Philippines but Malaysia, Vietnam and other countries that have Exclusive Economic Zones.  The issue with respect to the Common Heritage of Mankind and the freedom of navigation affects all countries, especially the major maritime powers in the region and other Dialogue Partners of ASEAN.