28 April 2018

OF LAW AND POLITICS

China Should Abandon its Kuomintang Legacy

Jaime S. Bautista

The legal status of the Reed Bank (Recto Bank) under international law is no longer in dispute. If China threatens war to deny us our exclusive sovereign right to exploit its resources, the Philippine Government has the constitutional duty not to surrender but to defend the Reed Bank with all the forces and resistance that a proud and resourceful people can command.

Misleading To Describe Reed Bank As Disputed Area

The Philippines has exclusive sovereign rights over the Reed Bank under the provisions of the UN Convention of the Law of the Sea (UNCLOS), to which both China and the Philippines are Contracting Parties.

 The UNCLOS Arbitral Tribunal has ruled that China’s nine-dash-line (which encroached on two-thirds of the Philippines’ Exclusive Economic Zone in the West Philippine Sea) has no basis under international law. 

The Tribunal found that China’s claim to historic rights to resources within the nine-dash-line was incompatible with the Convention’s comprehensive allocation of rights of States to maritime areas.   The Tribunal declared that the text of the Convention is clear in according sovereign rights to the living and non-living resources of the exclusive economic zone to the coastal State alone.  The provisions of the Convention concerning the Continental Shelf are even more explicit that rights to the living and non-living resources pertain to the coastal State exclusively.  The Tribunal ruled that, if China had historic rights, such rights were superseded by the entry into force of the Convention.

Moreover, the Tribunal examined the historical record and concluded that China never had historic rights to the South China Sea.   China’s historical navigation and trade in the South China Sea as well as fishing beyond the territorial sea, represented an exercise of the high sea freedoms.  The exercise of freedoms permitted under international law cannot give rise to historic rights.  To give rise to historic rights, there must be evidence that China had historically sought to prohibit or restrict the exploitation of such resources by the nationals of other States and that those States had acquiesced to those restrictions.  The Tribunal found that China’s claim could not be supported.

The Tribunal also ruled that none of the high-tide features in the Spratly Islands, in their natural condition, are capable of sustaining human habitation or economic life of their own within the meaning of Article 121(3) of the Convention and, therefore, none of them are entitled to an EEZ or Continental Shelf.  Thus, China (whose mainland lies across the width of the South China Sea from the Philippines) has no basis to claim overlapping maritime zones with the Philippines.

The Arbitral Tribunal, therefore, confirmed that the Philippines is entitled to a 200 mile EEZ in the West Philippine Sea, which entirely covers the Reed Bank.

The Arbitral Tribunal found that the Reed Bank is an entirely submerged reef formation and forms part of the Philippines’ Continental Shelf.  As China had interfered with Philippine petroleum exploration at Reed Bank, the Tribunal ruled that China had violated the Philippines’ sovereign rights with respect to the non-living resources of its Continental Shelf. 

Legal Implications of Arbitral Ruling

The decision of the UNCLOS Arbitral Tribunal is final and binding on China (Art 11 of Annex VII of the Convention) and now forms part of the jurisprudence of international law. 

The arbitral decision has legal implications benefitting other ASEAN maritime countries in the South China Sea.  Vietnam, Malaysia, Brunei and Indonesia have all filed diplomatic protests against the nine-dash-line.  The Tribunal’s ruling that China has no historic rights to resources of other States within the nine-dash-line coupled with the the ruling that the high-tide features in the Spratly Islands are not entitled to an EEZ or Continental Shelf, means that China has no legal basis to claim fishing or petroleum rights in the EEZ and Continental Shelf of the ASEAN States bordering the South China Sea.  The ruling also means that Indonesia has no maritime borders with China, which removes a source of conflict between the two countries.

War Full of Risks for China

Under the Tribunal’s ruling, China has the legal obligation to respect the Philippines’ exclusive sovereign rights to explore and exploit the Reed Bank.   A threat of war to prevent the Philippines from exercising such sovereign rights would evidently be a violation of the Tribunal’s ruling.  If China goes to war, it would further constitute aggression, which the UN Charter and the Rome treaty seek to prevent.   (China, like other major military powers, has not joined the Rome treaty that seeks to punish aggression.)

President Rodrigo Duterte’s Statement that China has threatened war possibly was intended as a trial balloon to show China that there is a limit to how far the Philippine Government can accommodate China’s interests under Chinese pressure.

The arbitral ruling has given the Philippines an ace in its dialogue with China over the South China Sea.  The law is on the Philippines side and if China uses brute force to deny us our sovereign rights, this would make China an international delinquent and would be full of risks for China, even if the war could be limited to a low-intensity conflict.

First, it would disrobe China of its pretension to be the champion of the developing countries.  In the course of debates during the negotiations of the Convention, “China actively positioned itself as one of the foremost defenders of the rights of developing States and was resolutely opposed to any suggestion that coastal States could be obliged to share the resources of the exclusive economic zone with other powers that had historically fished in those waters,” according to the Tribunal.’s finding.  China has reversed its negotiating position.

Second, China would have to reckon with the reaction of the other one hundred sixty six Contracting Parties to the UN Convention of the Law of the Sea.  China would have no casus belli and would be in delicto with respect not only to the Convention but also with the UN Charter itself as well as with other major Treaties, to which the great majority of countries are also Parties, such as the Vienna Convention on the Law of Treaties.

Third, any aggression against the Philippines would upset its relations with ASEAN as a Dialogue Partner and particularly cause alarm to Indonesia and the other ASEAN countries bordering the South China Sea.

Fourth, the South China Sea is the busiest maritime highway of international trade.  The tension in the area would affect the economies of the countries in the region, cause greater harm to China’s economy, and slow down the global economy.

Fifth, China’s Road and Belt initiative will not thrive in an atmosphere of tension and instability.  With this ambitious project to make China great, China can ill afford to act as an international delinquent.

Sixth, it would put the United States on the spot with unforeseeable consequences.  The United States has a Mutual Defense Treaty with the Philippines whose Article V provides that “… an armed attack on either of the Parties is deemed to include an armed attack on  … its armed forces, public vessels or aircraft in the Pacific.”

Seventh, China would lose the Philippines as a strategic ally possibly during the lifetime of President Xi Jinping.

Is China a Friend?

The Philippines was its best friend at the 2017 ASEAN and related Summits.  The emergence of President Duterte was like receiving manna from heaven for China.  China needs the Philippines’ friendship (with its strategic location at the center of the Archipelagic Continent) and ASEAN’s cooperation for its ambitious global strategy,

The pertinent question to ask is whether China is a friend of the Philippines, rather than whether the Philippines can enforce the Tribunal’s ruling.   With respect to the Reed Bank particularly, this is a negative obligation on the part of China.   It only calls for China not to interfere and threaten the Philippines.   The nine-dash-line is also the source of China’s conflict with its other ASEAN maritime neighbors.  

The Government of the People’s Republic of China inherited the nine-dash-line from its rival Republican (Kuomintang) Government, which first published the nine-dash-line in an official Chinese map in 1948.  China has now a choice of complying with its obligation to harmonize its laws with the Convention and remove a source of conflict (as the Philippines did when it abandoned the Treaty Limits doctrine) or be in conflict with its ASEAN maritime neighbors.  If China should make the right choice, the Code of Conduct being negotiated between ASEAN and China could draft a form of words that will give China a graceful way to abandon the Kuomintang legacy and begin a new era of unquestionable friendship between China and its ASEAN maritime neighbors.