The Philippines is not an ant between two elephants in our struggle to enforce the Arbitral Ruling promulgated pursuant to the provisions of the UN Convention on the Law of the Sea. The UNCLOS is the constitution of the oceans, agreed upon by the international community.
Battle is Ours Over Our Maritime Rights
The Philippines is not a pawn involved in the power struggle between the United States, as the dominant superpower in the world, and China as the rising star. The Arbitral Ruling is all about our maritime rights under UNCLOS, as both the Philippines and China are Parties to this multilateral agreement.
This is all about our struggle to protect our fishing rights in our 200-miles Exclusive Economic Zone and its fragile ecosystem and rich biodiversity; to prevent China’s occupation of the Reed Bank ((Recto), which forms part of our Continental Shelf, and to exercise therein our petroleum and mining rights; and to recover Mischief Reef, also part of our Continental Shelf, which China occupies illegally.
The issue of who has sovereignty over the Spratlys and Scarborough Shoal was not brought before the Arbitral Tribunal as it is the International Court of Justice which has jurisdiction over issues relating to land.
Maritime rights, on the other hand, deal with issues relating to internal waters, bays, straits, archipelagic waters, territorial seas and the contiguous zones, exclusive economic zones, continental shelves, the high seas and the deep seabed.
The Philippines has been prudent not to take sides in the power struggle between China and the United States. However, China should note that Filipinos are mindful that it is the United States that seeks to protect the status quo on the law of the sea under UNCLOS, which recognizes the exclusive sovereign rights and jurisdiction of coastal states over their Exclusive Economic Zone and Continental Shelf.
China, on the other hand, seeks to subvert UNCLOS and replace it with its nine-dash-line in order to convert the vast expanse of the South China Sea into a Chinese lake, never mind that the line encroaches on two-thirds of the Philippines’ Exclusive Economic Zone and those of other ASEAN member states.
Shift to Vigorous Multilateral Diplomacy
In defending its permanent paramount interests, the Philippines has apparently moved from quiet bilateral diplomacy to a more active multilateral diplomacy. Over a period of four years, the Philippines has patiently sought to accommodate China and give it a way to save face.
In my column published on 30 May 2020, I noted that the Philippines can no longer afford to continue with its quiet diplomacy with China because this policy places no pressure on China and encourages China to intimidate its neighbors. In the meantime, much time has been lost to replace the Malampaya oil fields which will soon be depleted.
On 26 June 2020, the 36th ASEAN Summit, which was hosted by Vietnam by virtual mode, declared that UNCLOS is the law that determines maritime entitlements to the EEZ and Continental Shelf, omitting any reference to general international law:
“We reaffirmed that the 1982 UNCLOS is the basis for determining maritime entitlements, sovereign rights, jurisdiction and legitimate interests over maritime zones.” “UNCLOS sets out the legal framework within which all activities in the oceans and seas must be carried out.”
China claims that the UNCLOS Exclusive Economic Zone is not really exclusive but is modified by general international law based on historic rights. However, the fictitious nine-dash-line has no historic basis because prior to UNCLOS, the international community recognized the territorial sea and contiguous zone, but beyond there was only the high seas, which was mare liberum.
Resort to UN General Assembly
The Philippines again may have no choice but to bring the Arbitral Ruling to the UN General Assembly in the same way that the Philippines needed to resort to arbitration under the UNCLOS provisions on “Compulsory Procedures Entailing Binding Decisions.”
Moral pressure and loss of prestige and credibility is the ultimate sanction on a rogue state when Chapter VII sanctions by the UN Security Council cannot be adopted because of the veto by a Permanent Member. No state can afford to be a pariah in the international community.
For this battle, the Philippines needs to make adequate preparations on a timetable based on pragmatic considerations. The first opportunity to explain the Arbitral Ruling to the world and to the Chinese people is when our head of state or his representative is scheduled in these coming months to address the UN General Assembly.
Having remained quiet about the Arbitral Ruling, the Philippines should now avail of every opportunity to explain the Arbitral ruling at relevant international and regional forums. ASEAN provides many venues for this, with the “Outlook on the Indo-Pacific” providing an overarching theme.
Activate The “ASEAN Outlook on Indo-Pacific”
Thus, the Philippines’ engagement should actively push for the activation of the “ASEAN Outlook on the Indo-Pacific.” Southeast Asia lies at the center of these two dynamic regions, as pointed out in the Rationale for this initiative.
Prominent among the areas of cooperation for this initiative is maritime cooperation. Among others, this includes: firstly, to prevent unsustainable exploitation of marine resources through overfishing and the destruction of ecosystems and biodiversity; secondly, to promote sustainable management of marine resources and support small- scale fishing activities; and thirdly to promote connectivity through maritime commerce and the development of the blue economy.
This ties up well with our most important and urgent objective in bringing China to arbitration: food security. It is not petroleum but fish which is the most valuable resource of our Exclusive Economic Zone.
China has the biggest fishing fleets in the world and subsidizes them, ignoring its obligations to cooperate in the management and conservation of the living resources of the sea and the protection of the marine environment.
Post-Covid-19 World Order
It is in the interest of ASEAN to lead the shaping of the economic and security architecture of the Indo-Pacific. The underlying principle for promoting cooperation is ASEAN centrality to achieve peace, security, stability and prosperity in the wider Asia-Pacific and Indian Ocean regions.
As explained in the white paper on the “ASEAN Outlook on the Indo-Pacific”, the way to promote it includes strategic discussions in ASEAN-led mechanisms such as the East Asia Summit, the ASEAN Plus One, the ASEAN Regional Forum and the ASEAN Defense Ministerial Meeting-Plus.
The Outlook also recognizes the potential for cooperation with other regional mechanisms. Maritime Cooperation, Connectivity and Food Security are relevant issues for APEC, whose mission is to promote and accelerate regional economic integration and to enhance human security.
These discussions will provide a preview of what the Post Covid-19 World Order may look like: how much of the status quo will be preserved and how much will change. We must seize the opportunity in these strategic talks to contribute ideas and show leadership to advance the common interest of humanity and our national interest.
Conclusion
The challenge ahead is not for an ant. But we are a populous country, the thirteenth in the world and the second in ASEAN, with a huge diaspora in the continents of the globe.
We have a proud history in diplomacy, being a founding member and a signatory of the United Nations Charter, a founding member of ASEAN, and the first democracy in Asia. In these roles, we actively supported the emergence of the Third World.
The Philippines is present in the UN logo as a dot and that dot reacted in a big way, pushing for the insertion of the word “self-determination” in the UN Charter.
In the Third United Nations Conference on the Law of the Sea, the Philippines successfully introduced the concept of the Archipelagic State in the Convention.
As the UN Charter is the expression of the peoples of the world, we should prepare to have a corresponding big voice in the discussions in the United Nations system of what the Post Covid-19 World Order will be.
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