Saturday, April 28, 2012

JURIST - Sidebar: The Law of the Seas and the Scarborough Shoal Dispute

JURIST - Sidebar: The Law of the Seas and the Scarborough Shoal Dispute

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April 27, 2012, marks the formal end date of the Balikatan joint military exercises of US and Philippine military forces. Considered a yearly event, Balikatan draws its proximate basis from the 1999 US-Philippines Visiting Forces Agreement (VFA), but the ultimate basis for the parties' joint exercises is the 1952 US-Philippines Mutual Defense Treaty (MDT). While Balikatan's timing may be coincidental, the ongoing standoff between Chinese and Philippine gunboats in Scarborough Shoal is certainly not, thus implicating potential US intervention in yet another theater of war, this time in the Pacific. The gunboat standoff is now on its seventeenth day, triggered by a plausible case of illegal fishing activities by Chinese fishermen in Philippine exclusive economic zones: the Philippine navy then sought to arrest Chinese fishermen found to have harvested live corals, live baby sharks, and other rare or endangered marine species in Scarborough Shoal — "Panatag Shaol" under the local vernacular — which refers to a group of islands and reefs in an atoll located just 124 nautical miles from the Philippine province of Zambales, but lying more than 500 nautical miles from Hainan, the nearest Chinese port. Scarborough Shoal is approximately 230 kilometers from Luzon, a main island of the Philippines, and 1,200 kilometers from Hainan province. As Philippine naval vessels attempted to seize illegal cargo and make the arrest, Chinese ships intervened and established a defensive posture. To date, no arrest or seizure could be made without escalating what is still a defense posture by both navies. The Chinese navy also dropped steel posts and navigation buoys to mark the waters around Scarborough in "defense" of its "national territory." As of April 26, Philippine authorities spotted two unidentified aircraft in Scarborough's airspace which, according to Philippines Foreign Affairs Secretary Albert del Rosario, were "not from the Philippines."

Article IV of the MTD between the US and Philippines requires each party to recognize an "armed attack" in the "Pacific Area" on either party as an attack against the other, the happening of which obliges them to "act to meet the common dangers in accordance with its constitutional processes." Read with Article IV, Article V defines an "armed attack" as "includ[ing] an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in the Pacific." Noteworthy is the fact that the treaty provisions do not use "use or threat of force" as operative terms, but "armed attack."

As the twenty-eighth Balikatan exercises draw to a close with each side showcasing the program as a "success," China was quick to warn the Philippines government that a US presence may "internationalize" the situation, as a number of Balikatan exercises were held near or at the West Philippine Sea — or the South China Sea — depending on one's vantage point. In fact, China considers both Scarborough and the Spratly Islands disputes as "regional" or even "bilateral" in nature. The Philippines, speaking through its foreign minister, proposed that the parties raise Scarborough to the International Tribunal on the Law of the Sea (ITLOS), an idea which the Chinese government flatly rejected. ITLOS is a key dispute resolution component of the UN Convention on the Law of the Sea (UNCLOS).

Is this a case where a maritime dispute, described in terms of which country is encroaching upon the other's "exclusive economic zone," and a territorial dispute, described in terms of "national territory," can and ought to be distinguished? Or does the answer to one question determine the other? Commentators have argued that the maritime dispute and the territorial dispute are separable and ought to be resolved independently, even to the extent of implying that each question would require different venues. Many are tempted, on one hand, to associate UNCLOS solely with maritime questions, and the International Court of Justice (ICJ) and the Permanent Court of Arbitration with the "grander" and "greater" questions of territorial claims. It is unavoidable, however, that any attempt at drawing archipelagic baselines — which are inherently territorial questions — under UNCLOS will certainly determine how far exclusive economic zones, or for that matter, the contiguous zones and territorial waters of a country can be.

Questions of substantive international norms aside, the more pressing question is whether China, having formally ratified UNCLOS in 1996, can be bound at all by the compulsory dispute resolution mechanisms of the UNCLOS regime. In a declaration made on August 25, 2006, after China's 1996 ratification of UNCLOS, the Chinese government made a statement to the effect that it "does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a), (b), and (c) of Article 298 of the Convention." That Section 2 is captioned as "Compulsory Procedures Entailing Binding Decisions." Articles 286 and 287 of the same section, read together, point to ITLOS, the ICJ, an arbitral tribunal "constituted in accordance with Annex VII" (which may refer to the Permanent Court of Arbitration), and a "special arbitral tribunal" likewise under Annex VII. Thus there can be at least four venues for Scarborough if the dispute is brought to UNCLOS.

It seems that China, while a state party to UNCLOS, is not bound by its compulsory processes, ITLOS included. And even if China had not lodged its 2006 declaration which effectively served as a reservation against any binding outcome of UNCLOS's grievance system, China's ratification instrument to UNCLOS — made a decade earlier — stated that "The People's Republic of China reaffirms its sovereignty over all its archipelagos and islands as listed in article 2 of the Law of the People's Republic of China on the territorial sea and the contiguous zone, which was promulgated on 25 February 1992."

Does China consider Scarborough as among its "archipelagos" and "islands" listed under its basic law? Regardless of venue, China seems to be posturing for an historical claim, or an historical title, to the Scarboroughs, which is consistent with its claim over the Spratly Islands. In The Law of the Seas and the Spratly Islands Dispute, I discussed the Philippines-China dispute over the Spratlys, a group of islands which lie at the heart of one of the world's busiest sea lanes and are known to hold rich oil and natural gas reserves. Time and again, as with Scarborough, the Chinese government insists that the Spratly dispute should be resolved through bilateral negotiations, while the Philippines and its long-time ally, the US, call for a multilateral approach. Whether bilateral or multilateral, and whether it be Scarborough or the Spratlys, in meeting the greater question of who really owns the South China Sea (or West Philippine Sea, again depending on one's vantage point) there can be no avoidance of a rules-based regime of some kind, treaty or custom.

A less ambitious, but a potentially viable venue, might be the Association of Southeast Asian Nations (ASEAN). In 2002, China and ASEAN signed the Declaration on the Conduct of Parties in the South China Sea, which called for the
exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.
Del Rosario very recently announced that ASEAN should take a more active role, as both Scarborough and Spratlys would clearly fall under the 2002 ASEAN-China Declaration. While Del Rosario was quick to petition ASEAN (quite understandably) to intervene, deploring China's continuing breach of the 2002 declaration, ASEAN's experience in dispute resolution remains shaky, nor was ASEAN originally designed or built to resolve diplomatic rows occurring between and among non-ASEAN member states such as China.

As the Philippines, along with Japan and South Korea, struggles to shake off the perception of acting as a mere US proxy in Asia, it will be difficult to deny that more than 7,000 American and Filipino troops were present in the name of "war games" and "disaster response activities" held near or even at a potential theater of combat in the Pacific. It is clear, wherever one's political perspectives may lie, that those joint military exercises were undertaken under a post-war "mutual defense treaty" whose commitments of "mutual interests" had been reaffirmed by no less than Secretary of State Hillary Clinton during her November 2011 visit in Manila. Dubbed as the "2 + 2" summit, US and Philippine diplomats have planned to meet next week to discuss their next steps in pursuit of their "mutual interests" in Asia.

Edsel Tupaz is the founder and managing partner of Tupaz & Associates and is currently a private prosecutor of the House prosecution panel in the impeachment trial of Philippine Chief Justice Renato Corona. Tupaz is a public interest lawyer and law professor whose expertise lies in comparative constitutional law and policy, teaching at law schools in the US and the Philippines. He is a graduate of Harvard Law School and Ateneo Law School.

Suggested citation: Edsel Tupaz, The Law of the Seas and the Scarborough Shoal Dispute, JURIST - Sidebar, Apr. 27, 2012,

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