OF LAW AND POLITICS

TOWARDS A SEA OF PEACE, STABILITY AND PROSPERITY

Jaime S. Bautista

Round Table Discussions

I discuss the status of our bilateral relations with China from the point of view of people to people relations.

The Duterte Administration has adopted a two-track policy of separating the discussion of sensitive issues from economic and other issues.

With this policy, the Philippines’ official relations with China have improved.

President Rodrigo Duterte has received high approval ratings from every polling survey but his China policy has not received the support of the Filipino people.

Filipinos still recall that China occupied Mischief Reef after the Philippine Senate had expelled the US bases from Clark and Subic.

Many other recent actions of China have cast doubts about its intentions.

The ASEAN Summits have expressed concern about China’s land reclamations and have stressed the importance of non-militarization.

Before leaving for China on his fifth visit, President Duterte announced it was time for him to raise the issue of the Arbitral Award.  He did so in a face to face meeting with President Xi Jinping, saying that the Arbitral Award was “binding, final and not subject to appeal.” 

Arbitral Award

I will now dwell on the Arbitral  Award, given its importance to present and future generations of Filipinos.

It may be recalled that the Philippines filed the case against China to assert sovereign equality and to resolve the issue of whether the Philippines has sovereign rights to a 200-mile EEZ/Continental Self in the South China Sea.

The Philippines was careful to exclude any issue of territorial sovereignty.

The Tribunal ruled that China has no EEZ/Continental Shelf overlapping with the Philippines, either on the basis of the nine-dash line or the Spratly Islands.

Nine-Dash-Line

The Tribunal ruled that China’s claim to historic rights to living and non-living resources within the nine-dash-line are contrary to the Convention.

According to the Tribunal, 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 stated that the Convention does not preserve or protect any historic rights in the EEZ/Continental Shelf that exceed the limits provided by the Convention, i.e., 200 miles from the baseline.

The context of the Convention is that, upon China’s accession, any historic rights were superseded by the limits of the maritime zones as stated above. 

In any event, China did not have any historic rights to speak of because, before the Convention entered into force, all of the South China Sea formed part of the High Seas.

Finally, the Tribunal held that China could not have acquired any rights after the adoption of the Convention because the extent of the rights asserted within the ‘nine-dash line’ only became clear with China’s Notes Verbales of May 2009.  Since that date, China’s claims have been clearly objected to by other States.

Spratly (Nansha) Islands

Neither can China claim an EEZ/Continental Shelf on the basis of the Spratly Islands.

All of the high tide features there are legally rocks, by virtue of Article 121 (3) of the Convention, and have no EEZ/Continental Shelf since they cannot sustain human habitation or economic life of their own.

Article 121 (3) supports the concept of the EEZ to extend the jurisdiction of States over the waters adjacent to their coasts and to preserve the resources of those waters for the benefit of the population of the Coastal State.  The EEZ is not meant to award a windfall to a potentially distant state.

Thus, a delegate to the UNCLOS negotiations pointed out:

Tiny and barren islands, looked upon in the past as mere obstacles to navigation should not miraculously become the golden keys to vast maritime zones.

The Tribunal further held that China cannot enclose the Spratly Islands as a single unit within a system of archipelagic baselines.

The use of archipelagic baselines is limited to archipelagic states and China cannot meet the definition of an Archipelagic State. 

The Tribunal noted that even the Philippines cannot declare archipelagic baselines in the Kalayaan Island Group (KIG) because the archipelagic baselines should include the main islands and meet the requirements of ratio of water to land of 9:1.

Neither can China draw straight baselines because the Spratly Islands are not within the vicinity of China’s mainland.

Conclusion

The Tribunal noted that accession to the Convention reflects a commitment to bring incompatible claims into alignment with its provisions.

The Philippines aligned its laws by passing Republic Act 9522, which abandoned the claim to historic rights to waters within the Treaty of Paris.

Compliance is both necessary and desirable because the United Nations Convention on the Law of the Sea was negotiated to serve as a Constitution establishing a legal order for the sea.

It is to be noted that the UNCLOS created a system of maritime zones, which covers every area of sea or sea-bed in the globe.

The UNCLOS, therefore, provides limits to the entitlement that states may have to the different maritime zones.

Any claim which exceeds the limits permitted by UNCLOS would impact on the high seas or the Common Heritage of Mankind, or encroach on the EEZ of another State.

Every Party to the UNCLOS Convention has a substantial interest in the harmonization of national laws with the Convention.

The compliance with the limits to maritime zones agreed upon in UNCLOS would remove a source of tension and instability in the South China Sea.

Filipinos want to be good maritime neighbors, especially because the South China Sea is a semi-enclosed sea demanding cooperation in the preservation of the marine environment to assure food security for the region.

Filipinos were concerned particularly about the plight of our fishermen. They worry about the destruction of the coral reefs, the dwindling fish stocks and the loss of biodiversity, and they demand that our sovereign rights to our sources of food and energy be protected.

The Duterte Administration is now seeking to enforce the Arbitral Award through cooperative efforts, such as discussing joint exploration and exploitation of gas and oil, but on the basis of sovereign rights under UNCLOS.

A Sea of Peace, Stability and Prosperity is our work in progress, with ASEAN and its Dialogue Partners.