OF LAW AND POLITICS

Ambassador Jaime S. Bautista

Second of Four Parts on the Notification to Terminate the VFA: The Enforcement of the Arbitral Award is PH Core Interest

The ruling of the Arbitration Tribunal vindicated the Philippines’ protests and swept away the apparent picture of China in a position to control the South China Sea because of its military and economic power.  The Visiting Forces Agreement is a component of the Philippines’ Collective Defense to have a pragmatic approach to the enforcement of the Arbitration Ruling.

Nine-Dash-Line

The main threat to the Philippines’ security is the Nine-Dash-Line which seeks to convert the South China Sea into a Chinese lake and place the region under its sphere of influence as the regional hegemon.

The Nine-Dash-Line serves as cover for China’s occupation of Mischief Reef and its invasion of Scarborough Shoal.  It is China’s justification for violating the Philippines’ sovereign tights over its 200-mile Exclusive Economic Zone (EEZ) and Continental Shelf.

In May 2009, China addressed a Note Verbale to the United Nations, the text of which claimed sovereignty to the "islands in the South China Sea and the adjacent waters", and sovereign rights over the South China Sea, attaching a map of China’s Nine-Dash-Line.

The Nine-Dash-Line, with its extravagant claims, has also put China in conflict with our ASEAN neighbors bordering the South China Sea: Indonesia, Vietnam, Malaysia and Brunei.

The ASEAN Foreign Ministers, meeting in Vientiane in 2016, expressed serious concerns over developments in the South China Sea and emphasized the importance of non-militarization and self-restraint in the conduct of all activities, including land reclamation, which have caused tension in the region.

Common Heritage of Mankind

China’s Nine-Dash-Line, in encompassing the high seas and its deep sea-bed, further violates the Common Heritage of Mankind.  Under this principle of UNCLOS, the “Area” or deep sea-bed which lies under the high seas is beyond national jurisdiction.

The UN Convention on the Law of the Sea does not allow any State to claim sovereign rights beyond its own 200-mile EEZ/ Continental Shelf (or Expanded Continental Shelf).  Any claim beyond these limits allowed by UNCLOS necessarily encroaches on the high seas or the EEZ/ Continental Shelf of another State.

The Common Heritage of Mankind safeguards the rich resources lying below the High Seas for the benefit of all countries, whether coastal or landlocked, and prevents powerful countries from exploiting them to the exclusion of the poorer countries.

Its violation is offensive to all the ASEAN countries and the rest of the world, which stand to lose when the exploitation of these resources begins.

Acts of Aggression

The issue of whether China has a history or not of expansionism is pointless.

China occupied Mischief Reef in 1995, after the Philippine Senate voted to eject the US bases at Clark and Subic.  Mischief Reef is a low tide elevation within the Philippines Exclusive Economic Zone (EEZ) and forms part of its Continental shelf, over which the Philippines has exclusive sovereign rights.  It is not an island or a rock over which China can claim sovereignty.

China first built a platform on Mischief Reef explaining, when 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.

When China began flexing its military muscle and building other artificial islands, with its emergence as the dominant economic power in Asia, the Philippines still failed to perceive the danger until China seized Scarborough Shoal which is undoubtedly Philippine territory.

Arbitration to Assert Sovereign Equality and Invoke the Rule of Law

The Philippines was then constrained to file the arbitration case against China to assert sovereign equality and resolve the issues of its maritime sovereign rights in accordance with international law.

In July 2016, the Arbitration Tribunal, constituted in accordance with Annex VII of the UN Convention of the Law of the Sea (UNCLOS), ruled that China’s Nine-Dash-Line is invalid and has no legal basis under international law.   But China has refused to recognize the ruling of the UNCLOS Arbitration Tribunal that the Nine-Dash-Line violates International Law. 

China’s and PH Core Interests

In the aftermath of the ruling, the Philippine Council for Foreign Relations (PCFR) and the Philippine Ambassadors’ Foundation, Inc (PAFI) visited Beijing in 2016 to conduct track 2 diplomacy, upon the invitation of the Chinese People’s Institute of Foreign Affairs.  

At the Welcome reception at Beijing’s airport, Vice Foreign Minister Liu Zhenmin delivered the message to us that China will not abide by the Arbitral ruling and stressed that the nine-dash line is a core interest of China.

The Arbitral Ruling is now part of International Law on the principle of pacta sunt servanda since both the Philippines and China are Contracting Parties to the UN Convention on the Law of the Sea.  Under this Convention, the ruling of the UNCLOS Arbitration Tribunal is final, binding and not subject to appeal.  President Rodrigo Duterte himself conveyed this message to China.

The refusal of China to abide by the Arbitration Ruling and abandon the Nine-Dash-Line has been the main cause of recent tension in the South China Sea. China’s military might and economic power has temporarily allowed China to be defiant of the Rule of Law.

As a sovereign country, the Philippines needs to recover Mischief Reef and Scarborough Shoal and to protect its territorial and maritime areas located outside its archipelagic baselines. This is demanded by the Philippines’ core interests: the defense of its sovereignty and territorial integrity. It is in this light that the notice to terminate the VFA should be reviewed.

The Arbitration Tribunal did not touch the issue of sovereignty over Scarborough; only the issue of fishing rights was raised.  The Philippines can bring the issue of Philippine sovereignty over Scarborough Shoal to the International Court of Justice with the consent of China.

Strategic Thinking

There is need for strategic thinking to persuade China to disgorge the Philippine rocks and low-tide elevations that China has swallowed.

The strategy to recover our maritime territories, based on international law, will necessarily need to combine negotiating skill, the strength of the Philippines’ alliances, and the pressure of public opinion in the community of nations.

The Philippines has been giving China time and space to retreat from its policy of might is right. The Philippines needs to muster all its forces to face China in public opinion warfare, psychological warfare and legal warfare, in which China has been engaging us.

.Ambassador Jaime S. Bautista, Doctor of laws, is

Vice President of the Philippine Ambassadors’ Foundation Inc and of the Philippine Council For Foreign Relations