The Philippines, like other nations, faces the twin challenges of saving lives and restoring the livelihood of so many of its people. These challenges must be faced on a nation-wide basis because Covid-19 does not recognize boundaries. Neither can a nation face these challenges alone. To overcome the virus requires cooperation among the community of nations because the world has become a global village.
The Association of Southeast Asian Nations (ASEAN) has adopted a Comprehensive Recovery Framework calling for a “whole of community” approach based on the idea that the well-being of the people living in the region is intrinsically linked to ASEAN as an institution. This approach perceives that ASEAN may not necessarily represent the sentiments of the people.
The Philippines also faces the third challenge of China’s expansionism in the South China Sea to convert this international seaway of trade into a Chinese lake. This is likewise a challenge to the countries in the region, threatening their national sovereignty and territorial integrity as well as the economic well-being of their peoples. This challenge impacts the rivalry between the United States, as the dominant superpower, and China as the rising power in the region, which is likewise a concern of all the countries in the region. This rivalry has placed the Philippines in a position to negotiate for better terms of trade with China and better terms in defense matters with the United States.
China’s expansionism shows that the challenge for the world today remains basically the same, to fulfill the aspirations embodied in the Preamble of the UN Charter: peace and security, faith in fundamental human rights, respect for treaty obligations, and the promotion of social progress for better standards of life in larger freedom. This paper will review how the Rule of Law through the Arbitral Ruling has thwarted China’s ambition to enforce its Nine- Dash-Line through force, and to unilaterally revise the provisions of the UN Convention on the Law of the Sea.
China’s Expansionism
China’s aggressive behavior has dictated the setting of our bilateral relations. The purpose of the arbitration was to defend our fishing rights, protect the fragile ecosystem and its rich biodiversity, safeguard our petroleum and mining rights particularly in the Reed Bank, and recover the Mischief Reef (and eventually Scarborough Shoal), which China occupies illegally. Of these, the concern about our food supply is the most relevant today due to Covid-19.
China’s aggression began after the Philippine Senate voted in 1991 to terminate the bases agreement with the United States. With the departure of US forces, China occupied Mischief Reef, a low tide elevation within our exclusive economic zone, which forms part of our Continental Shelf. Under the Convention, China can never acquire Mischief Reef by occupation or otherwise because Mischief Reef cannot be detached from our Continental Shelf. (See Paragraph 309, Permanent Court of Arbitration case no. 2013-19)
China’s occupation of Scarborough Shoal by force in April 2012 provoked another crisis in our bilateral relations with China. Scarborough Shoal is not part of the Spratly’s and is Philippine territory located not far from Luzon, the Philippines’ largest island, and well within our exclusive economic zone.
Arbitration Under UN Convention on the Law of the Sea
As the Philippines could not bring the issue of the Philippines’ sovereignty over Scarborough Shoal before the International Court of Justice without China’s consent, the Philippines filed for arbitration to protect its maritime zones, particularly the Reed Bank from China’s ambitions. This Petition did not seek any ruling on the sovereignty over the Spratly islands or Scarborough Shoal. China, however, claims that the exclusive economic zone and the continental shelf are not really exclusive, alleging that China’s historic rights modify the Convention’s provisions.
China has refused to comply with the decision of the Arbitral Tribunal issued in July 2016. The Nine Dash-Line has increased the instability in the South China Sea because it likewise encroaches on the exclusive economic zone of other ASEAN countries, impedes the right of free transit in the high seas, and violates the Common Heritage of Mankind, thereby affecting the rights of all states, including even landlocked countries.
The Common Heritage of Mankind in the Convention refers to the Area (the seabed below the high seas) and its resources over which no State shall claim or exercise sovereignty or sovereign rights; neither can any State or natural or juridical person appropriate any part thereof. All rights in resources of the Area are vested in Mankind as a whole. (Articles 136 and 137 of the Convention)
China Engaged Philippines in Total Psywar
For a time, China engaged the Philippines in total psywar because the Arbitral Ruling destroyed the bases for its expansionism but Philippine diplomacy eased the tension. China threatened us with war and conducted hybrid warfare, forbidden by the UN Charter, as well as in economic, psychological and media warfare. China’s propaganda spread the untruth that the Arbitral Tribunal is not a UN tribunal, that its decision is not binding because China refused to take part in the proceedings, and that the Philippines failed to comply with the provision of Article 281 of the Convention to exchange views with China prior to filing for arbitration.
The Arbitral Award was not determined by the Permanent Court of Arbitration, which was appointed by the President of the UN Tribunal of the Law of the Sea to serve as the Registry for the arbitration. (See Paragraph 31) The President of the UN Tribunal of the Law of the Sea also appointed the president and members of the Arbitral Tribunal, (except for the arbitrator appointed by the Philippines) because China declined to appoint its arbitrator. The Arbitral Tribunal wasconstituted under Annex VII to the Convention. (See Para 31)
The Convention provides for compulsory procedures entailing binding decisions with respect to any dispute concerning its interpretation or application. (See Article 286 of the Convention) The Arbitral Tribunal noted that China’s non- participation did not constitute a bar to the proceedings because the Convention expressly acknowledges the possibility of non-participation by one of the parties to the dispute and expressly provides in Article 9 of Annex VII of the Convention that such non-participation does not constitute a bar to the proceedings. (See Para 117)
As for Article 283 of the Convention, the Arbitral Tribunal noted that this requires parties to exchange views on the means of settling their dispute, not the substance of the dispute: The Philippines expressed a clear preference for multilateral negotiations whereas China insisted that only bilateral talks could be considered. While the Philippines is not required to negotiate under Article 283, it is well established that a State is not required under international law to continue negotiations when it concludes that the possibility of a negotiated solution has been exhausted.” (See Para 160)
Nine Dash-Line Is Without Lawful Effect
A jurisdictional issue in the arbitration was whether China could claim any possible overlap of its entitlements to an exclusive economic zone with that of the Philippines. China had excluded maritime boundary delimitation from its acceptance of compulsory dispute settlement with its declaration in 2006. (See Para 6)
The Arbitral Tribunal ruled that there was no such possibility either on the basis of the Nine Dash-Line or on the basis of the Spratly Islands providing entitlement to an economic zone, either singly or as a unit. (See Para 1199)
The Arbitral Tribunal noted that the Convention built on the provisions of prior international law and the 1958 UN Convention on the Law of the Sea, which established limits for maritime entitlements and set out the rights and obligations of coastal States and other states within such maritime zones. The Convention thus provided a comprehensive system of maritime zones capable of encompassing any area of sea or seabed. (See Para 231) Any claim to an exclusive economic zone beyond these limits would, therefore, encroach on other maritime zones, such as the high seas, the Common heritage of Mankind or the exclusive economic zone of another country.
The Arbitral Tribunal noted that China’s claim to have historic rights to the living and non-living resources in the waters of the South China Sea within the Nine Dash-line would be incompatible, at least to the extent of the exclusive economic zone and continental shelf pertaining to the Philippines. (See Para 232).
The Arbitral Tribunal held that 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. (See Para 243) 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. “ (See Para 244)
On the other hand, the Convention has no provision preserving or protecting any historic rights in the exclusive economic zone/continental shelf that exceeds the limits provided by the Convention, i.e., 200 miles from the baseline. China’s claim to historic rights is not compatible with the nature of these maritime zones and the rights of other States within those zones. (See Para 246)
The Arbitral Tribunal’s ruling is supported by the debates of the Third UN Conference, where “China actively positioned itself as one of the foremost defenders of the rights of developing countries 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.” (See Para 251)
In any event, the Arbitral Tribunal ruled that the exercise of freedoms permitted under international law could not give rise to a historic right. (See Para 268) The Tribunal noted that China’s navigation and trade in the South China Sea, for all of history, as well as fishing beyond the territorial sea, represented the exercise of high sea freedoms. (See Para 269) Before the UN Conventions on the Law of the Sea, all of the South China Sea, except for the territorial seas, formed part of the high seas, which are open to all States, whether coastal or landlocked.
On the other hand, 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. (See Para 275)
No Archipelagic Baselines Allowed in Spratlys
The Arbitral Tribunal likewise held that China cannot claim an overlapping exclusive economic zone/continental shelf with the Philippines on the basis of the Spratly Islands.
The features in the South China Sea are classified in a system defining them as follows: 1) fully entitled islands (2) rocks entitled only to a territorial sea; 3) low-tide elevations; and 4) submerged features. (See Para 507)
The difference between an island and a rock is that, while both of them have some features above water at high tide, rocks cannot sustain human habitation or economic life of their own and are not entitled to an exclusive economic zone/continental shelf. (See Art 121 (3) of the Convention)
A low-tide elevation is a naturally formed area of land, which is surrounded by and above water at low tide, but submerged at high tide (Art 3 of the Convention.). When they are converted into artificial islands, they do not thereby acquire the status of islands and have no marine entitlements. (See Article 60 (8) of the Convention)
The Arbitral Tribunal made an exhaustive examination of whether any of the major features in the Spratly Islands, including Itu Aba (the largest island), could meet the requirements of Article 121 (3) to be considered an island. The test was whether any any of them could fully sustain human habitation or economic life on its own, in its original state, before being converted into an artificial island. Otherwise such a feature, although above water at high tide, should be treated only as a rock, and not entitled to an exclusive economic zone/continental shelf.
In making this determination, the Arbitral Tribunal also highlighted that there is a link between Article 121 (3) and the purpose of the exclusive economic zone. (See Para 507)
The principal impetus for establishing this new exclusive economic zone was “to balance the interest of the peoples of coastal developing States with the interests of the traditional maritime States, and those States with long range fishing industries.” (See Para 515) It was not intended to unfairly and inequitably generate enormous entitlements to maritime space that would serve not to benefit the local population but to award a windfall to the (potentially distant) State having a claim to uninhabited islands. (See Para 516)
The Arbitral Tribunal considered that the human habitation required was “the habitation by a portion of the population for whose benefit the exclusive economic zone was being introduced.” (See Para 520) China, evidently, is also a distant land with respect to the Spratly Islands.
The Arbitral Tribunal held that, in light of these considerations, none of the high tide features in the Spratly Islands are capable of sustaining human habitation of their own within the meaning of Article 121 (3) of the Convention. All of their high tide features are, therefore, legally rocks and do not generate entitlements to an exclusive economic zone or continental shelf. (See Para 646)
The Arbitral Tribunal further rejected China’s assertion that the Spratly Islands should be enclosed within a system of archipelagic or straight baselines, surrounding the high tide features of the group, and accorded an entitlement to maritime zones as a single unit. The Arbitral Tribunal noted that the use of archipelagic baselines is strictly controlled by Article 47 (1) of the Convention and limits their use to Archipelagic States. China is constituted principally by territory on the mainland and cannot meet the definition of an Archipelagic State. (See Para 573)
The Arbitral Tribunal noted that not even the Philippines can declare archipelagic baselines in the Kalayaan Island Group because the archipelagic baselines should include the main islands and meet the requirements of ratio of water to land of 9:1. (See Para 574)
Duty to Harmonize Laws with the Convention
The Tribunal held that China’s accession to the Convention reflects a commitment to bring incompatible claims into alignment with its provisions. (See Para 262) Unlike China, the Philippines aligned its laws by passing Republic Act 9522, which abandoned the claim to historic rights to waters within the Treaty of Paris.
The Arbitral Tribunal confirmed that its decision was final and shall be complied with by the parties to the dispute. (See Para 1180) This obligation is imposed by the basic rule “pacta sunt servanda” expressed in Article 26 of the Vienna Convention on the Law of Treaties. (See Para 1195) The Convention on the Law of the Sea itself expresses in Article 300 that “State Parties shall fulfill in good faith the obligations assumed under this Convention.”
Code of Conduct
The Code of Conduct has been under negotiation between ASEAN and China for years, in accordance with the agreement in the Declaration of Conduct. It seeks to produce a legally binding agreement to address the tension in the South China Sea. This Code should be compatible with, and reflect the decision of the Arbitral ruling that the Nine Dash-Line is without lawful effect. The Code is needed because the issue of sovereignty over the Paracel Islands and the Spratly Islands remains unsettled. If it does not respect the Arbitral Ruling, it will not achieve its purpose. We will see whether China will sign a Code of Conduct and comply with the Arbitral ruling by aligning its laws with the Convention.
Thucydides Trap
There are two good reasons why China should enter into a Code of Conduct. The first is that it avoids the Thucydides Trap, the phenomenon that the rivalry between a rising power and a dominant power leads to war. If military conflict should arise because of the Nine Dash-Line, the world would see China as the aggressor. The second is that the Nine Dash-Line makes China resemble a rogue State and distracts it from its real interest.
An article published by the China Institute of International Studies, one of the leading think tanks in China, expressed the opinion that the Thucydides Trap cannot apply to the competition between China and the United States because today’s world is different from Ancient Greece as “there were no international organizations and international law as a kind of mechanism to achieve international peace” (See its July-August 2016 issue)
The Nine Dash-Line violates one of the most important UN Conventions, damaging China’s credibility as a responsible Power, and puts in question the value of treaties entered into by China. The United States is still suffering from its decision to invade Iraq without the vote of the UN Security Council.
China has more influence than Russia today, although Russia is the second nuclear superpower. It is China’s economy that makes it the rising power in the world. The Nine Dash-Line impedes trade and economic growth and endangers the peace and stability that China needs for its Belt and Road Initiative. Its image as a regional hegemon promotes distrust with its neighbors in the Indo-Pacific region.
ASEAN Outlook on the Indo-Pacific
Securing peace through trade and development, especially in the South China Sea, is the goal of the ASEAN Outlook on the Indo-Pacific. This initiative envisages ASEAN as having the central role in shaping the economic and security architecture of the dynamic regions of the Asia-Pacific and the Indian Ocean and their surrounding areas as Southeast Asia is located at its center.
The Philippines’ location at the center of the South China Sea similarly imposes a special responsibility upon Filipinos as a people, to be active in this initiative, because this is simply an extension of the maritime route of the Belt and Road Initiative to the Pacific and the revival of the Galleon Trade which inked four continents and made Manila the first global city in the world. The Galleon trade between the Philippines and Mexico brought silk from China to Madrid paid for with silver mined in Bolivia.
The ASEAN Outlook is intended to be inclusive in terms of ideas and proposals and does not exclude any country. These ideas should include the protection of the maritime zones under the Convention and the development of their resources for maximum benefit. The underlying principle to promote cooperation will be ASEAN Centrality through ASEAN-led mechanisms such as the East Asia Summit as platforms for dialogue and cooperation, while preserving their formats.
Conclusion
Filipinos will undoubtedly continue to demand for the enforcement of the Arbitral Ruling. This is now part of International Law as a subsidiary means of determining the law. (See Article 38 of the Statute of the International Court of Justice) The International Court of Justice closely examines its previous decisions and those of the Tribunals of the UN Convention in reaching its decisions. The Nine Dash-Line undermines the UN Convention of the Law of the Sea, negotiated by the international community to serve as the Constitution for a legal order for the seas, and hinders the progressive development of international law to resolve disputes peacefully.
The Philippines is the 12th most populous nation in the world, with a huge diaspora in the continents of the globe. We should remember that the Philippines is uniquely present in the UN logo as a dot, as a founding member and signatory of the UN Charter. That dot, let us remember, played an influential role in pushing for the insertion of the word “self-determination” in the UN Charter. We have a proud record of supporting the emergence and growth of the Third World, and played the historic role of being the Chair of the Group of 77 during the 50th anniversary of the United Nations.
Filipinos gave an example of how to fight peacefully for freedom and the democratic way of life with our People Power Revolution in 1986. Thereafter, the Philippines was the trail -blazer organizing the Organization of Newly Restored Democracies. The countries of the Second World joined this organization as well as Cuba and the Palestine Liberation Organization (PLO) but the United States was shortsighted and did not support this initiative. Now, President Joe Biden is calling for a “Summitry of Democracies.”
The Arbitral ruling is the Philippines’ Soft Power contribution to preserve peace and prevent wars. The strategic location of our nation at the center of the busiest seaway of the world, which is now an imminent flashpoint, has placed upon us Filipinos a burden of standing up to the Great Powers and reminding them of our shared responsibility of realizing the dreams embodied in the Preamble of the UN Charter
(This article was also published in the PCFR (Philippine Council for Foreign Relations Journal, March 2021)
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