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.

Catalonian Crisis:  Rule of Law v. Democratic Opposition

Ambassador Jaime S. Bautista

The crisis in Spain’s autonomous region of Catalonia posed the question whether the Catalans “democratic opposition” to Spain’s Constitution of 1978 could prevail.  The Spanish Constitution was a work of reconciliation by all the political parties of Spain (including the Communist Party of Spain), after Franco’s death, and it was approved at a national referendum in which Catalans overwhelmingly voted in favor.

Last September, Catalonia’s Parlament voted to call a unilateral referendum for independence on October 1 but Spain’s Constitutional Court ruled that the referendum would be illegal. The Spanish Constitution provides that “National sovereignty belongs to the Spanish people, from whom all State powers emanate” and that “The Constitution is based on the indissoluble unity of the Spanish nation, the common and indivisible self-government of the nationalities and regions of which it is composed and the solidarity among them all.”

The unilateral referendum took place despite efforts by the Spanish Government headed by Prime Minister, Mariano Rajoy, to prevent it from taking place.  The Catalan autonomous Govern headed by Prime Minister Carles Puigdemont claimed that the referendum had a turnout of 43% and that the vote was overwhelming in favor of the independence of Catalonia as a republic.

On October 27, the Catalan Parlament declared Catalonia an independent republic by a secret vote of 70 out of 135 members (with the opposition walking out of the session).  The secret vote was a sign of weakness.  The Parlament met while the Spanish Senate was also meeting, poised to vote on the application of Article 155 of the Spanish Constitution.  This was the constitutional measure, similar to other constitutions in the European Union, designed to restore legal order in Catalonia. For a while, there were efforts to persuade Puigdemont to refrain from announcing unilateral independence and to call for autonomous elections as a compromise to avoid Section 155. 

With the approval of Section 155 by the Senate, Rajoy removed Puigdemont from office and called for autonomous elections on December 21, thereby dissolving the Parlament.  These measures, Rajoy explained, do not suspend Catalonia’s autonomy.    Spain’s Constitutional Court subsequently declared the unilateral declaration of independence as a nullity.

Rajoy justified the extraordinary application of Section 155 as restoring the rule of law.  The Catalan separatists’ argued that their democratic right to vote for independence overrides any decision of the courts.  The standoff was between the State’s derecho de estado, recognized by the international community, versus the Catalan separatists perceived “people power” relying on civil disobedience and the parliament of the streets.

The Spanish flag remained flying beside the Catalonian flag, outside the Parlament, on the first working day following the dramatic events.   The Mossos, Catalonia’s regional police, obeyed the orders of the national government to prevent the Catalan republicans from holding office.  Puigdemont fled to Brussels where he made a call for “democratic opposition”, seeing the autonomous elections as a plebiscite on independence.  Puigdemont and his senior officials now face rebellion and other criminal charges.

No Right of Secession.  The Catalan separatists cannot claim a right to secede under either the national law or international law. The principle of self-determination is applicable to peoples under colonial rule and does not give minorities the right to secede from an established state. The UN Charter in its Article 1 (2) speaks of the principle of self-determination of peoples as a basis for achieving the purposes of the United Nations to develop friendly relations among nations and to strengthen universal peace.

Pursuant to this provision, the UN General Assembly approved the 1960 Declaration of Independence to Colonial Countries and people which sought to end colonialism in all its manifestations.  This Declaration sought to give peoples under colonial rule or foreign domination the right to secede.  At the same time, Paragraph 6 thereof declared that “Any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.”  The right to secede from an established state does not exist.

Under the influence of the decolonization process, the principle of self-determination was enshrined in Article 1 of both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (ICCPR). Section 27 of the ICCPR did not include secession as among the rights of minorities.

In light of this historical context, the Canadian Supreme Court in the leading case of Reference Re Secession of Quebec Case declared that “international law expects that the right of self determination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states” and that the right to unilateral secession “arises only in the most extreme of cases, and even then, under carefully defined circumstances.”

Catalonia, as an autonomous region of Spain, exercises the same rights of self-government as the other autonomous regions of Spain. The County of Barcelona was part of the Kingdom of Aragon and later of Spain, and Catalonia was never an independent state. As stated by Rajoy, it is inconceivable to think of Spain without Catalonia or of Catalonia outside of Spain.

Does a state have a right to secede from a union?  Cognizant of this historic fact, the previous autonomous government of Catalonia headed by Artur Mas had previously attempted to hold a referendum, with one question containing two sections: 1) Do you wish Catalonia to be a State?  2) if the response is affirmative, do you wish Catalonia to be independent? 

The first question sought to place Catalonia on the same standing as Scotland because the latter was empowered to hold a referendum on independence in 2014.  But Scotland has a long history of having been an independent kingdom until it formally joined with England and Wales in 1707 to form the United Kingdom of Britain.  Nevertheless, the UK Parliament had to pass an Order in Council granting the Scottish Parliament the necessary powers to hold the referendum.

Whether a state has the right to secede from the union depends on the national law of the union.  Quebec also held a referendum on independence in 1995 without the opposition of the federal government.  When there was a threat to hold another one, the Canadian government turned to the Canadian Supreme Court, which ruled in the case quoted above that Quebec’s legislature did not have the right to effect the secession of Quebec unilaterally.

The United States of America also holds that there is no right of a state to secede from the union.  President Abraham Lincoln had argued that “the states were not sovereign before the Constitution but instead, they were created by it.”  The US Supreme Court ruled in Texas v. White in 1869 that: “The union between Texas and the other states was as complete, as perpetual, and as indissoluble as the union between the original states. There was no place for reconsideration or revocation, except through revolution or through consent of the States.”  The Court further held that all acts of secession were illegal according to the “perpetual union” of both the Articles of Confederation and the subsequent Constitution for the United States. The exceptions were “revolution or the consent of the States,” but without either, secession could never be considered a legal act.  In more recent times, Supreme Court Justice Antonin Scalia, who was asked to comment on this issue of secession, said: “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede” as the Pledge of Allegiance clearly illustrates through the line “one nation, indivisible.”

On the other hand, the federal states in the USSR and Yugoslavia succeeded in obtaining their independence.  The secession from a union also depends on political factors.  In the USSR, the weakness of the USSR government headed by Mikhail Gorbachev allowed the disintegration of the USSR.  The Baltic states of Lithuania, Latvia and Estonia were the first to withdraw from the USSR.  They had gained international support, as they were independent sovereign states before their annexation by the USSR.  The Belavezha Accords signed by Russia, Ukraine and Belarus signaled the end of the USSR.  They  proclaimed that the Soviet Union of the three had ceased to exist and announced the formation of the Commonwealth of Independent States. The three were the most powerful federal states, and were  original members of the United Nations (Russia is the successor state of the USSR).  The other federal states in the Caucasus and Central Asia confirmed the dissolution of the USSR when they signed (except for Georgia) the Alma-Ata Protocol.

In the Socialist Federal Republic of Yugoslavia, its Constitution permitted the referenda on independence held by Slovenia, Croatia, Macedonia and Bosnia-Herzegovina.  Its six constituent federal states were nominally equal members of the federation with the right to separate.  After the dissolution of the SFRY, Serbia and Montenegro formed a new federal union but Montenegro subsequently seceded from this union.

Referenda  in Crimea and Catalonia.  The referendum in Crimea in 2014 raised legal issues similar to those in Catalonia.  Both Crimea and Catalonia were autonomous regions when they held their referendum.  Ukraine argued that the referendum in Crimea was unlawful because it violated the provision of the Ukrainian Constitution that only a referendum where all the citizens of the Ukraine had a right to vote could approve territorial changes and because the Supreme Council of Crimea was not authorized to conduct the referendum.  

The West supported Ukraine’s position that the referendum violated both the Ukrainian and Crimean constitutions, and the territorial integrity of Ukraine.   The Council of Europe’s Venice Commission stressed that self-determination was to be understood primarily as internal self-determination within the framework of the existing borders and not as external self-determination through secession.

Kosovo as a Precedent.  Russia, however, justified the unilateral declaration of independence citing Kosovo as the precedent. Serbia protested Kosovo’s declaration of independence on the ground that Serbia enjoyed sovereignty over Kosovo and that the declaration represented “a forceful and unilateral secession of a part of the territory of Serbia.”  The UN General Assembly supported Serbia’s request for an advisory opinion from the International Court of Justice. 

The United States and many countries in Western Europe recognized Kosovo’s independence although it was an autonomous province of Serbia.  Spain and the Philippines and other countries affected by separatist sentiments declined to recognize Kosovo.

ICJ Opinion.

The ICJ addressed only the issue posed to it by the UN General Assembly, which was:  “Was the unilateral declaration of independence in accordance with international law? The ICJ stated that based on state practice in the 18^th, 19^th and early 20^th centuries, there was no international law prohibiting the unilateral declaration of independence. Neither did the emergence of the principle of self-determination in the second half of the 20^th century produce a new international law from the creation of new states outside this principle.  The ICJ, by a vote of ten to four, concluded that the Kosovo Declaration of Independence did not violate any norm of international law.  The ICJ declined to give its opinion on corollary issues such as the effect on territorial integrity or the issue of “remedial secession”, stating it was unnecessary.   

The ICJ, however, commented on the UN Security Council Resolutions which condemned the unilateral declarations of independence of Southern Rhodesia, northern Cyprus, and the Republika of Srpska (located in Bosnia-Herzegovina). The ICJ noted that the illegality attached to those declarations stemmed not from their unilateral character, but from the unlawful use of force or other egregious violations of norms of general international law.  In the case of Kosovo, the ICJ noted that the Security Council never suggested that there may have been such a violation. The exceptional character of those UNSC Resolutions appear to confirm that no general prohibition against unilateral declarations of independence may be inferred from the practice of the Security Council, the ICJ concluded.

Kosovo’s recognition was treated as a case sui generis because Kosovo was under UN interim administration and the ICJ did not find any violation of UN Security Council Resolution 1244 and the regulations promulgated thereunder by the UN Mission in Kosovo.

Final Remarks. The issue of secession is both a legal and political issue.   Catalonia has no right to secede under either the national law of Spain or the norms of international law.  The Spanish government, however, was constrained to call autonomous elections to restore normalcy and reconciliation.  The autonomous elections will again provide a forum to examine the issues that gave rise to the unilateral secession.  The hope is that the electoral debates will also involve meaningful dialogue and understanding and lead to convivencia and harmony.

Proposed China-USA New Normal Relations and the UNCLOS Arbitration Award

With China’s new economic status as an economic superpower, China proposed new normal relations with the United States to the Obama Administration, based on the following principles: 1) recognition of each other’s core interests; 2) no conflicts; 3) no threats or intimidation; and 4) mutual respect.  According to Ambassador Wu Hailong, President of the Chinese People’s Institute of Foreign Affairs, the United States rejected the fourth principle

While it is up to China to determine what are its core interests, it is for the United States to decide whether to accept and respect China’s declaration of its core interests.  It is clear that the United States does not accept China’s claim of sovereignty or of sovereign rights over such a vast area of the South China Sea covered by the nine-dash-line.  The United States has rejected China’s claim and protested China’s actions in allegedly converting seven artificial islands in the South China Sea into military bases.

In 2012, the Obama Administration announced the United States pivot to Asia, subsequently refined as a policy of rebalancing in the Asia Pacific region.  China’s commentators have perceived this as a policy of containment of China and maintaining US hegemony in the region.  They state that this policy undermines China’s security and is the principal cause of regional instability.

The Obama Administration justified its policy of rebalancing in the Asia Pacific region, on the need to be prepared in case of the emergence of an aggressive and revisionist China.  Aside from the dispute with respect to the nature of the structures in the artificial islands, the United States has accused China of bullying its smaller neighbors.

The United States explained rebalancing as a multi-dimensional strategy that harnesses every element of its national power and contains a very broad agenda that includes not only security but also investment, trade, development, tourism, and other forms of cultural exchange.

The Trump Administration has not yet defined clearly what its policy will be with respect to China and ASEAN and the rest of East Asia.  President Trump has abandoned the Trans Pacific Partnership Agreement (TPPA), which excludes China, and this has given rise to the perception that China may become the dominant economic power in our region.  On the other hand, Trump has also announced that the United States would rebuild its military structure, including making the US Navy even stronger.  This seems to indicate that the United States intends to remain as the dominant military power in our region.

President Duterte has been cautious in playing his hand in the rivalry between the United States and China, having entered into office while awaiting the results of the US presidential election. While overtly tilting towards China, he has not cut off the Philippines’ defense ties with the United States.  

The Duterte Administration’s position is partly based on the consideration that the Mutual Defense Treaty between the Philippines and the United States does not cover the defense of the Philippines’ Exclusive Economic Zone and Continental Shelf, or of Scarborough Shoal and of Kalayaan Islands in the Spratlys.   

The bilateral talks between the Philippines and China have succeeded in lowering tensions in the South China Sea.   Filipino fishermen can engage once again in artisanal fishing at Scarborough Shoal.  The two countries have announced that China will support various infrastructural projects in the Philippines which will involve some billions of US dollars.

Recently, however, there has been renewed controversy about the perceived militarization of artificial islands in the South China Sea.  Foreign Secretary Perfecto Yasay, Jr. revealed that the Philippines had delivered protest notes to China.  He also said that if China should convert Scarborough Shoal into a military base, this would be a game changer in our bilateral relations with China.

One of the causes, which compelled the Philippines to request for UNCLOS arbitration in its dispute with China, was the continued occupation by China of Mischief Reef, which is a low tide elevation within the Philippines Exclusive Economic Zone (EEZ) and forms part of our Continental shelf.  China occupied Mischief Reef in 1995 after the Philippine Senate voted to remove the US bases from Clark and Subic.   China first built a platform on Mischief Reef explaining, after the Philippines protested, that this was a shelter for fishermen regardless of nationality. Thereafter, China converted Mischief Reef into an artificial island despite continued Philippine protests.

The Philippines also complained in its Petition for Arbitration that China has unlawfully interfered with the enjoyment and exercise of the sovereign rights of the Philippines with respect to the non-living resources in the Reed Bank, which is within its EEZ and Continental Shelf.

When China occupied Scarborough Shoal in 2012 in view of its overwhelming military superiority over the Philippines, which has the weakest military in the region, the Philippines’ obvious recourse was to invoke the Rule of Law.

Under the UN Convention on the Law of the Sea, the Philippines is entitled to a 200 mile Exclusive Economic Zone and Continental Shelf.  China, on the other hand, cannot claim to have “historic rights” within the area encompassed by the 9-dash-line, which encroaches on two-thirds of the Philippines’ EEZ and Continental Shelf in the South China Sea.  

Prior to the UN Convention on the Law of the Sea, international law did not accept “assertions of historic rights over such a vast area” as claimed by China under its 9-dash-line.  The sea was subject to only two principles: 1) the principle of freedom of the seas, and 2) the principle of control over a limited area by the coastal state.

In any event, the UNCLOS Arbitral Award ruled that any assertion by China that it may have had historic rights to the living and non-living resources within the 9-dash-line “were superseded, as a matter of law, by the limits of the maritime zones provided for in the Convention.”

The Arbitration Award has given the Philippines the needed leverage in its talks on bilateral disputes with its giant neighbor.  It has placed China on the defensive and given the Philippines soft power to protect its sovereign rights to its EEZ and Continental Shelf.

The Arbitration Tribunal had no jurisdiction to decide issues relating to military matters. The UNCLOS Arbitration also had nothing to do with the issue of sovereignty over the Spratly Islands but it had every thing to do with the defense of our sovereign rights over our 200 mile EEZ and Continental Shelf in the South China Sea.  The issue of the alleged militarization of the artificial islands would now have to be resolved by ASEAN with China in the negotiations for a Code of Conduct in the South China Sea. 

On this issue, the ASEAN Foreign Ministers declared in a Joint Communiqué issued at their annual meeting in Vientiane in July 2016, after taking note of the UNCLOS arbitration ruling, that:  “We emphasized the importance of non-militarization and self-restraint in the conduct of all activities, including land reclamation that could further complicate the situation and escalate tensions in the South China Sea.”

This perceived militarization of the artificial islands is the main cause of tension in the South China Sea, coupled with China’s claim of sovereign rights over the vast area covered by the 9-dash-line.  Absent these, there would be a more peaceful environment in the South China Sea. The issue of sovereignty over the Spratly Islands is another matter but the United States has stated that it does not take the side of any claimant on this issue.