PHILIPPINES HAS INHERENT RIGHTS TO ITS 200-MILE CONTINENTAL SHELF AND EEZ UNDER UNCLOS AND CUSTOMARY INTERNATIONAL LAW

Introduction

China continues to violate the Philippines’ 200-mile Exclusive Economic Zone (EEZ) and Continental Shelf, in defiance of the Arbitral Ruling, and even though China has its own 200-mile EEZ and continental shelf adjacent to its mainland, located across the vast South China Sea.  Lately, China has employed gray zone tactics in the vicinity of Julian Felipe Reef (Whitsun Reef) located within the Philippines continental shelf as well as around Pag-asa (Thitu Islands) in the Kalayaan Island Group over which the Philippines exercises sovereignty and jurisdiction.

The EEZ and continental shelf of a coastal State may extend up to 200-miles unless they overlap with those of a neighboring country. (A coastal State may claim an expanded continental shelf if not impeded by an overlapping continental shelf.) It would take the South China Sea to shrink hundreds of nautical miles before China’s EEZ and continental shelf overlap with ours. 

Philippines has Rights To 200-Mile Exclusive Economic Zone

President Ferdinand E. Marcos signed Presidential Decree 1599 on 11 June 1978, establishing the Philippines’ EEZ 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 Unclos. 

The International Court of Justice recognized the status of the EEZ 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 its 200-mile EEZ by the Philippines was the practice of States based on the negotiated and agreed text of this Convention and recognized as part of customary international law.

Philippines has Rights to 200-Mile Continental Shelf

President Marcos signed Proclamation NO. 370 on 20 March 1968, declaring the adjacent area to the Philippines’ coast as 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 provides 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 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 Unclos 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. 

Arbitral Ruling: China has no Historic Rights Under Nine-Dash-Line which Contravenes UNCLOS

The Philippines rights to a 200-mile EEZ and 200-mile continental shelf facing China are, therefore, 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.

The Philippines filed the case against China because China sought to seize two/thirds of the Philippines EEZ and Continental Shelf with its claim to historic rights on the basis of its so-called nine-dash-line.   In 1995, China occupied Mischief Reef and converted it into a fortified artificial island but it is a low-tide elevation, which forms part of the Philippines’ continental shelf and cannot be subject to appropriation. In 2012, many years after the entry in force of UNCLOS, China seized Scarborough Shoal by force and continues through its military might to prevent the Philippines from exercising its rights. This is a rock well within the Philippines continental shelf and is, therefore, not terra nullius. Its seizure and maintenance by force by China violates the UN Charter, Article 2 (4) thereof.  (Under the Philippine Constitution and Republic Act 1922, Scarborough Shoal is Philippine territory.)

A coastal State has a right to 200-mile EEZ and 200-mile continental Shelf, unless its EEZ or continental shelf overlaps with the EEZ or continental shelf of another State.  China’s Exclusive Economic Zone and continental shelf adjacent to its mainland and adjacent islands are separated from those of the Philippines by a vast ocean.   

The Arbitral Tribunal ruled that China could not claim to have overlapping EEZ or continental shelf with those of the Philippines either on the basis of its nine-dash-line or by drawing archipelagic or straight baselines from the Spratly islands.

China’s claim to historic rights over the maritime areas covered by the nine-dash-line contravenes the provisions of UNCLOS that the coastal State has exclusive rights to its EEZ and its continental shelf; China cannot claim to share such rights.  If such rights existed, they were superseded by the provisions of UNCLOS, the Tribunal ruled. 

However, the Arbitral Tribunal noted that China never had such historic rights.  Before the EEZ became part of customary international law, coastal States had rights only to a territorial sea. Beyond the territorial sea, there were only the high seas, open to all States.  With respect to the seabed, its use beyond the territorial sea was also open to all States, although the technology to use it was absent.

 

China could not likewise claim overlapping on the basis of high-tide features in the Spratly Islands because none of these are entitled to an EEZ or continental shelf.   The Arbitral Tribunal declared that China could not draw archipelagic baselines from the Spratly Islands as this would violate Unclos because China is not an archipelagic state.  Neither could China draw straight baselines from there because this would also contravene UNCLOS.   Article 7 provides that straight baselines may be employed only “In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity.”

As there is no overlapping of maritime boundaries between the Philippines and China, the Philippines’s EEZ and continental shelf evidently extend up to 200 nautical miles in the area facing China. Otherwise stated, China has no EEZ or continental shelf to restrict the extent of the Philippines’ EEZ or continental shelf in the area facing China. 

The question of whether there may be overlapping of maritime areas of the Philippines with those of other countries, is irrelevant because the overlapping would cover a different area.  For this reason, Vietnam acknowledged that the Arbitral Tribunal had jurisdiction over this case filed by the Philippines against China, and no country asked to intervene in the case.  

Philippines has inherent rights to the rocks located within its continental shelf

The Arbitral Tribunal was not asked to rule on the issue of sovereignty over the rocks, whether located within or outside the Philippines’ EEZ/continental shelf.  It is the ICJ that has jurisdiction over issues of sovereignty.

 

The issue placed before the Tribunal was whether particular features in the Spratly Islands were either an island with full maritime rights, a rock entitled only to a territorial sea, or a law-tide elevation or submerged feature forming part of the continental shelf of a coastal State.  This was to determine the issue of sovereign rights relating to overlapping of maritime rights. The Philippines did not concede in the Arbitration case that China was in lawful occupation of the artificial islands, which it seized illegally through its military might. 

The Philippines has inherent rights to the rocks located within the Philippines’ continental shelf under Unclos and customary international law.  Article 77 (3) of Unclos expressly provides that “(t)he rights of the coastal State over its continental shelf do not depend on occupation, effective or notional, or on any express proclamation.” As stated by the International Court of Justice, they are ipso jure and ab initio; in short, they are inherent rights.

From the inherent nature of the continental shelf follows the retroactivity of the continental shelf doctrine.  As explained by the eminent writer on the Law of the Sea, Daniel Patrick O’Connell, the effect of the doctrine of retroactivity with respect to the continental shelf is “to annul any priority of claim in time or nature over the rights of the coastal state, so that, for example, the doctrines of historic rights or acquisitive prescription would not be available.”  

As a signatory to Unclos when this treaty was opened for signature in 1982, China was obliged to refrain from committing acts, which would defeat the object or purpose of this treaty, as it never announced thereafter any intention to withdraw from the treaty  (See Art 18 of the Vienna Convention on the Law of Treaties, to which China is a Party.) Indeed, China ratified the UN Convention on the Law of the Sea on 7 June 1996 and became fully bound by it.  

As noted by the Arbitral Tribunal, this Convention was intended to be the constitution of the oceans to comprehensively allocate all the maritime areas of the oceans, so that the illegal occupation of any maritime area in the globe would violate either the rights of another coastal State, or infringe on the rights of all States to the common heritage of mankind or violate the freedom of the high seas.

Therefore, after signing the UNCLOS treaty on 10 December 1982, China was obliged to respect the Philippines’ 200-mile EEZ and 200-mile continental shelf.  The International Court of Justice (ICJ) recognized in 1985 that the concept of the continental shelf was part of customary international law. The ICJ previously declared in 1984 that the 200-mile EEZ created by Unclos had previously attained the status of customary international law. In view thereof, it became illegal for any State to occupy rocks or islets located within the EEZ/continental shelf of another State as China has done.  Such rocks or islets cannot be viewed as terra nullius. 

Again, it needs to be emphasized that the coastal State’s rights to its continental shelf are ipso jure and ab initio, without need of any proclamation or occupation, effective or notional.  On the other hand, the State claiming rights by occupation needs to prove effective occupation.

China never occupied any of the Philippine rocks (which China later converted into fortified artificial islands)  before 1988, when it seized Johnson Reef by force.  Therefore, China cannot claim rights either on the basis of occupation, prescription (historic rights), accretion or conquest.  China does not claim rights by virtue of cession. 

Not having title, China is unlawfully occupying the rocks located within the Philippines EEZ and continental shelf, and as a corollary, cannot exercise sovereignty over their adjacent seas.   

Enforcement of Arbitral Award

The Arbitral Award covered only the Philippines sovereign rights to its 200-mile Exclusive Economic Zone and continental shelf.   It did not cover issues of sovereignty over which the ICJ has jurisdiction and beyond the jurisdiction of the Arbitral Tribunal.

It may be noted that the Philippine Supreme Court, in the case of Republic v. Palawan (G.R. No. 170867 dated January 21, 2021) stated that the Philippines’ sovereignty and jurisdiction over the Kalayaan Island Group (KIG) is based on Presidential Decree No. 1596.  The Court noted that the Arbitral Tribunal measured the Philippines’ 200-mile continental shelf from the province of Palawan with respect to the disputed reefs and that the Tribunal declared that the geological features in the KIG (Spratlys) can have only a 12-mile territorial sea under Unclos.

The enforcement of the Award on the issue of sovereign rights is based on the good faith of the Parties to fulfill the obligations they assumed under the Convention.  Thus, the Department of Foreign Affairs (DFA) is the key Department of the Philippine Government assisting the President of the Philippines in seeking the enforcement of the Arbitral Award.   The Department of National Defense (DND), the Armed Forces of the Philippines (AFP), the Philippine Coast Guard (PCG), and other government agencies like the Bureau of Aquatic Resources (BFAR) have the task of supporting the DFA as the country’s first line of defense. 

  

China’s obligations under the Award may be viewed as either positive obligations, when they require China, for example, to leave Mischief Reef, or negative obligations, when they require China not to interfere with the Philippines rights to fish in its EEZ or to dig oil wells in its Continental Shelf.  Evidently, the task of persuading China to comply with its positive obligations will be a herculean task.  That of protecting our fishing and mining rights, though difficult against an expansionist hegemon, is feasible by combining the Philippines’ negotiating skill with the strength of our alliances and the pressure of public opinion in the community of nations.

The urgent task of the DND, the AFP and the PCG is to ensure that China does not build any more structures within our EEZ/continental shelf, mindful of China’s record of employing gray zone tactics and its cabbage strategy to unlawfully seize and build artificial islands.  

The other immediate need is for the AFP and PCG to patrol our EEZ and continental shelf to prevent China from plundering our resources, particularly the fish and other living resources in our EEZ, and undermining our food security.

As a retired Foreign Service Officer, I note that the DFA is manned by experienced career officers dedicated to the service of our country, as is the case with the Department of National Defense and the Armed Forces of the Philippines.  

We ask Filipinos everywhere to unite and speak with one voice in supporting our government in its duty to defend our country’s sovereignty, sovereign rights, and jurisdiction for the sake of present and   future generations.

(Ambassador Jaime S. Bautista is Vice President and Chair of the Diplomatic Cluster of the Philippine Council for Foreign Relations and Vice President of the Philippine Ambassadors’ Foundation Inc.  He is a member of the Philippine Bar, Doctor of Laws obtained from the  Universidad Cumpletense de Madrid and former professor of Law at the Ateneo de Manila Law School and Philippine Christian University.)

Note: Originally Published in Philippine Council for Foreign Relations Journal, Q2 2021