China continues to violate the Philippines’ 200-mile Exclusive Economic Zone (EEZ) and Continental Shelf, despite the fact that it has its own 200-mile EEZ and Continental Shelf located across the vast South China Sea and in defiance of the Arbitral Ruling. It would take the South China Sea to shrink hundreds of nautical miles before they overlap.
PH 200-mile Exclusive Economic Zone
Under the United Nations Convention on the Law of the Sea which both the Philippines and China are obliged to respect, the EEZ of a coastal State may extend only up to 200 nautical miles. (A State may also claim an extended Continental Shelf where that of an adjacent or neighboring State does not impede it.)
President Ferdinand E. Marcos signed Presidential Decree 1599 on 11 June 1978, establishing the Philippines’ Exclusive Economic Zone which extends to a distance of 200 hundred nautical miles, provided that where it overlaps with that of an adjacent or neighboring state, the common boundaries shall be determined by agreement. This Presidential Decree, which has the status of law, is in accord with the provisions of the UN Convention on the Law of the Sea.
The International Court of Justice recognized the status of the Exclusive Economic Zone as part of customary international law in 1984. (See Delimitation of the Maritime Boundary in the Gulf of Maine, Canada v. United States of America, (1984) ICJ Rep 246, 94)
Thus, even before the entry into force of the Convention in 1994, the establishment of the 200-mile EEZ by the Philippines was the common practice of States based on the negotiated and agreed text of this Convention and recognized as part of customary international law.
PH 200-Mile Continental Shelf
President Marcos signed Proclamation NO. 370 on 20 March 1968, declaring the Philippines Continental Shelf. This was a proclamation, not a law, which was issued in accordance with the provisions of the 1958 Convention on the Continental Shelf. Article 2 (3) of this treaty provided that “The rights of the coastal State do not depend on occupation, effective or notional, or any express proclamation.”
Thus, the Philippines did not need to issue any Proclamation at all. In 1969, the International Court of Justice ruled that Articles 1 to 3 of the Convention on the Continental Shelf had become part of customary internal law. (See North Sea Continental Shelf (1969) ICJ Rep 3)
In the abovementioned case, the International Court of Justice repeatedly emphasized the concept of natural prolongation and adopted the ipso jure doctrine with respect to the Continental Shelf. The Court declared:
“The rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso jure and ab initio by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the sea bed and exploiting its natural resources. In short, there is here an inherent right.” (Underscoring mine.)
The UN Convention on the Law of Sea extended the outer limits of the Continental Shelf to a juridical distance of two hundred nautical miles, modifying the exploitability criterion of the 1958 Convention on the Continental Shelf.
In 1985, the International Court of Justice recognized that the provision of the UN Convention on the Law of the Sea extending the coastal State’s Continental Shelf to a distance of up to 200 nautical miles had attained the status of customary international law. (See Libya/Malta Continental Shelf case, ICJ Reports, 1985, p. 13; 81 ILR p. 239.)
The Court’s decision took into account that Libya was not a Party to the 1958 Convention on the Continental Shelf while, on the other hand, the UN Convention on the Law of the Sea had not yet entered into force.
No overlapping of PH Rights to 200-mile EEZ and Continental Shelf Facing China
The Philippines rights to a 200-mile EEZ and Continental Shelf facing China are firmly based on both customary international law and the UN Convention on the Law of the Sea, and confirmed by the Arbitration Tribunal constituted under Annex VII of the UN Convention of the Law of the Sea.
Among China’s objections to the jurisdiction of the Arbitration Tribunal was that the case involved delimitation of maritime boundaries. China, however, failed to establish that it had Exclusive Economic Zone/Continental Shelf overlapping with those of the Philippines.
China’s Exclusive Economic Zone and Continental Shelf are separated from the marine entitlements of the Philippines by a vast ocean.
The Tribunal ruled that China could not claim that it had EEZ/Continental Shelf overlapping with those of the Philippines on the basis of the “nine-dash-line” which the Tribunal declared to be contrary to the Convention and without lawful effect.
Neither could China claim overlapping on the basis of high-tide features in the Spratly Islands, because none of them are entitled to an EEZ/Continental Shelf. China also could not draw archipelagic baselines because China is not an archipelagic state.
As there is no overlapping of maritime boundaries, the Philippines’s EEZ/Continental Shelf evidently extends up to 200 nautical miles in the area facing China, without the need for the Arbitration Tribunal to declare this.
It is not relevant to consider here that there may be overlapping of maritime areas of the Philippines with those of neighboring countries. For this reason, Vietnam acknowledged that the Arbitration Tribunal had jurisdiction over this case filed by the Philippines against China, and no country asked to intervene in the case.
China’s Continuing Violations
Since the International Court of Justice declared in 1984 that the EEZ was part of customary international law, and in 1985, that the 200 mile continental shelf was likewise part of customary international law, no State may occupy rocks or islets located within the EEZ/ Continental Shelf of another State.
China never occupied any feature in the Spratly Islands until 1988, although it claims sovereignty over them. China later occupied two low-tide elevations and a rock within the Philippines EEZ and Continental Shelf, after it had signed the UN Convention on the Law of the Sea when this treaty was opened for signature on 10 December 1982.
As a signatory to this Convention, China was obliged to refrain from committing acts which would defeat the object or purpose of the treaty unless it shall have made clear its intention not to ratify it. (See Art 18 of the Vienna Convention o n the Law of Treaties, to which China is a Party.) China ratified the UN Convention on the Law of the Sea on 7 June 1996.
As noted by the Arbitration Tribunal, this Convention was intended to be the constitution of the oceans to comprehensively allocate all the maritime areas of the oceans.
China’s unlawful seizure and construction of an artificial island on Mischief Reef (which is a low-tide elevation that is not capable of appropriation) and its occupation of the high-tide elevation of Scarborough Shoal by force, both of which are within the Philippines EEZ and Continental Shelf, are continuing violations under international law of our sovereign rights and jurisdiction.
As a retired foreign service officer, I wish to underscore that the Department of Foreign Affairs is the Philippines first line of defense against China’s expansionism and that the DFA is manned by professionals dedicated to the service of our country, as is the case with the Department of National Defense and the Armed Forces of the Philippines.
The President of the Philippines depends upon the DFA, the DND and the AFP, and other Government agencies like the Philippine Coast Guard and Bureau of Aquatic Resources (BFAR) to defend the Philippines’ sovereignty, sovereign rights and jurisdiction. I ask Filipinos everywhere to unite and support our government in defending these rights for the sake of our future generations.
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