THE RULE OF LAW IN THE WEST PHILIPPINE SEA DISPUTE
(A lecture by SC Sr. Assoc. Justice Tony Carpio)
Speech by Justice Antonio T. Carpio before the Philippine Bar Association, August 29, 2013.
In the 17th century, England, Spain and Portugal, the naval superpowers of the day, claimed ownership of the oceans and seas they discovered, and enforced their claims through the barrel of the naval cannon. In 1609, Hugo Grotius, the father of international law, argued in his classic Mare Liberum (The FreeSea) that the oceans and seas belonged to all mankind and no nation could claim them as its own. After over a century of battle between those who insisted on ownership of the oceans and seas and those who fought for freedom of the oceans and seas for all mankind, Grotius’ idea eventually prevailed and became part of international law. It also laid the foundation for the law of the sea.
In this the 21st century, China, Asia’s rising regional naval power, is claiming ownership by historical right to almost 90% of the South China Sea. China’s claim, represented by its 9-dashed line map, echoes the 17th century maritime claims of the naval superpowers of that era. China is enforcing its claim through its rapidly growing naval fleet. If left to stand, China’s claim will bring the world back to the turbulent maritime era 400 years ago, when nations claimed the oceans and seas and maritime claims were settled through the naval cannon, not through the Rule of Law.
What is the dispute in the West Philippine Sea?
China claims “indisputable sovereignty” over all the waters, islands, reefs, rocks, seabed, minerals, and living and non-living resources falling within its 9-dashed line claim in the South China Sea. The 9-dashed line area comprises almost 90% of the total area of the South China Sea. China’s 9-dashed line claim encroaches on 80% of the Philippines’ 200-nm exclusive economic zone (EEZ) and 100% of its 150-nm extended continental self (ECS) facing the South China Sea - what thePhilippines calls the West Philippines Sea. China’s 9-dashed line claim has similar effects on the EEZs and ECSs of Vietnam, Malaysia, Brunei and Indonesia facing the South China Sea. The countries most adversely affected by China’s 9-dashed line claim, in terms of the size of the area encroached by the 9-dashed line claim, are the Philippines, Vietnam, Malaysia, Brunei and Indonesia, in that order.
Is there an international law that governs the resolution of theWest Philippine Sea dispute?
The 1982 United Nations Convention on the Law of the Sea, or UNCLOS, which entered into force in 1994, governs the conflicting maritime claims in the South China Sea. All the claimant states in the South China Sea dispute, including the Philippines and China, have ratified UNCLOS. UNCLOS is the Constitution for the world’s oceans and seas. UNCLOS codified the then existing customary international law of the sea, created novel entitlements in favor of coastal and landlocked states, and adopted a compulsory dispute settlement mechanism to insure that there is a final authoritative body to interpret and apply its provisions.
UNCLOS has been ratified by 165 states, comprising an overwhelming majority of the members of the United Nations. For this reason, even the novel maritime entitlements under UNCLOS in favor of coastal and land-locked states, which maritime entitlements have been consistently affirmed by international tribunals since 1994, now form part of customary international law. Even non-signatory states, as well as signatory states that later withdraw from UNCLOS, are bound by these maritime entitlements.
UNCLOS governs only maritime entitlements, maritime space and maritime disputes. The maritime entitlements of states - the territorial sea, EEZ and ECS and their resources – emanate and are drawn only from baselines on continental land or islands. UNCLOS provides for a compulsory dispute settlement mechanism, subject to certain types of disputes that states are allowed to exclude from compulsory arbitration. All states that ratified UNCLOS bound themselves in advance to this compulsory dispute settlement mechanism. The Philippines and China, having ratified UNCLOS, are bound by this compulsory dispute settlement mechanism.
UNCLOS does not govern territorial sovereignty disputes over land or land features in the oceans and seas. Territorial sovereignty disputes over land or land features - that is, islands, reefs and rocks above water at high tide - are governed by the rules and principles of general international law. An international tribunal can acquire jurisdiction over territorial sovereignty disputes only with the consent of the states that are parties to the particular dispute, in the absence of a treaty binding them in advance to the jurisdiction of such tribunal. There is no such treaty between the Philippines and China.
In short, any maritime dispute between the Philippines and China is subject to compulsory arbitration under UNCLOS, except for the disputes that China has excluded from compulsory arbitration in accordance with UNCLOS. In contrast, the territorial sovereignty dispute between the Philippines and China over land and land features is not subject to compulsory arbitration.
What is the right or entitlement of the Philippines under international law that is being violated by China?
Under UNCLOS, every coastal state is entitled as a matter of international law to a 200-nm EEZ, plus an additional 150-nm ECS where applicable, drawn from baselines on continental land or islands. In lieu of this additional 150-nm ECS, a coastal state may adopt an ECS of up to 100-nm seaward from the 2,500 meter isobath. This legal maritime entitlement is one of the most important reasons why developing coastal states approved UNCLOS. Without this important legal maritime entitlement there might have been no UNCLOS. In case of overlapping EEZs or ECSs, the opposing or adjacent coastal states shall negotiate in good faith an equitable maritime boundary.
Also, land-locked states joined UNCLOS for two reasons: first, the area of the sea beyond the EEZ of a coastal state, called the highseas, is open to fishing for all states, whether coastal or land-locked; and second, the seabed and its minerals beyond the ECS of a coastal state is declared the common heritage of mankind - belonging to all states, whether coastal or land-locked.
China’s 9-dashed line claim negates, and thus violates, the Philippines’ legal entitlement under UNCLOS to an EEZ and ECS. China’s 9-dashed line claim also negates, and thus violates, the right of all states on this planet, including thePhilippines, to fish in the high seas or the area beyond the EEZ of a coastal state. China’s 9-dashed line claim furthermore negates, and thus violates, the right of all states on this planet, including the Philippines, to the seabed and its mineral resources beyond the ECS of a coastal state. Finally, China’s claim of “indisputable sovereignty” to areas of the South China Sea beyond the EEZs of coastal states violates the prohibition under UNCLOS against states subjecting the high seas to their sovereignty.
What is the basis of China’s 9-dashed line claim?
China anchors its 9-dashed line claim on so-called “historical rights.” However, China admits that its 9-dashed line claim was first included in an official Chinese map only in 1947 during the Kuomintang Government. In 1998, China enacted its Exclusive Economic Zone and Continental Shelf Law to affirm its sovereign rights and jurisdiction over its EEZ and ECS under UNCLOS. A provision in this 1998 law states, “this Act shall not affect the historical rights of the People’s Republic of China.” This 1998 law is the first official reference in a Chinese law to China’s “historical rights” to maritime areas outside its EEZ and ECS. However, the rights of a state under international law cannot be enlarged by its domestic legislation, but only by customary international law or by a convention like UNCLOS.
China’s 9-dashed line claim was originally represented by 11 dashes in the 1947 Chinese map, then reduced unilaterally in 1950 to 9 dashes without explanation after the Communists ousted the Kuomintang from the mainland. In January this year China released a new official map adding a 10th dash on the eastern side of Taiwan. China’s claim was ambiguous from the start as China failed to explain its scope until January this year. Moreover, until now China has never revealed the exact coordinates of its 9 or 10-dashed line claim, and neither has China explained the basis under international law for its claim.
China formally announced to the international community its claim only in 2009 when it submitted to the United Nations a map depicting its 9-dashed line claim. This map, showing no coordinates of the 9 dashes, was appended to a note verbale China lodged to protest Vietnam and Malaysia’s joint submission of their ECSs. With this map, China claimed “indisputable sovereignty” over the islands and “adjacent waters” within the enclosed area, as well as sovereign right and jurisdiction over the “relevant waters,” seabed and subsoil within the enclosed area. China did not explain the meaning of the words “adjacent waters” and “relevant waters,” which are not used in UNCLOS. China thus failed to clarify the ambiguity of its 9-dashed line claim. China’s submission of its 9-dashed line claim to the United Nations was, of course, promptly protested by other claimant states.
China has always been ambiguous about the scope of its 9-dashed line claim – whether it is claiming only the islands within the 9-dashed line area, or whether it is also claiming all the waters and resources within the 9-dashed line area beyond the applicable maritime zones. Even Chinese scholars on the law of the sea are divided as to whether the 9-dashed line claim includes all the waters within the area, comprising almost 90% of the South China Sea. China’s incumbent judge in the International Tribunal for the Law of the Sea, Zhiguo Gao, wrote in 1994 that the 9 dashes merely identify the islands owned by China within the enclosed area and do not represent a claim to all the waters and resources within the enclosed area.
In January this year China appears to have clarified at least the scope of its claim by issuing a new official map describing 10 dashes on the map as its “national boundaries.” By using the term “national boundaries,” China is apparently claiming everything within these boundaries as part of its national territory. If so, China has clarified only this year that it is claiming all the waters, islands, reefs, rocks, living and non-living resources, the seabed and the minerals found within the previous 9, now 10-dashed line area. This is consistent with the aggressive actions of Chinese surveillance ships in harassing survey vessels of Vietnam and the Philippines exploring for oil and gas in their own EEZs that overlap the waters enclosed by the 9-dashed lines, even if the waters are outside the maritime zones of any disputed island and outside the EEZ or ECS of China.
Still, China has not explained the basis under international law of its “historical rights” to the 9-dashed line claim. China has not released an official paper or document explaining such “historical rights,” and the justification for such “historical rights” under international law. China has refused to defend its 9-dashed line claim before an international tribunal on the law of the sea. However, on its face alone the 9-dashed line claim has absolutely no basis under international law.
First, UNCLOS extinguished all historical rights of other states within the 200-nm EEZ of the adjacent coastal state. That is why this 200-nm zone is called “exclusive” – no state other than the adjacent coastal state can exploit economically its resources. Fishing rights that other states historically enjoyed within the EEZ of the adjacent coastal state automatically terminated upon the effectivity of UNCLOS. Moreover, UNCLOS prohibits states from making any reservation or exception to UNCLOS unless expressly allowed by UNCLOS. Any reservation of claims to “historical rights” over the EEZ or ECS of another coastal state is prohibited because UNCLOS does not expressly allow a state to claim “historical rights” to the EEZ or ECS of another state. In short, UNCLOS does not recognize “historical rights” as basis for claiming the EEZs or ECSs of other states.
The few cases where the waters beyond the territorialsea were still treated as internal waters because of “historical rights” all happened before the advent of UNCLOS, when the breadth of the territorial sea was still three miles. These cases involved deeply indented bays, like the Chesapeake Bay bordering Maryland and Virginia in the United States, or deeply indented gulfs like the Gulf of Fonseca in Central America bordering Honduras, Nicaragua, and El Salvador. These bays and gulfs are adjacent to the coast and have long been accepted by other states as internal waters. With UNCLOS, the territorial sea has been extended to 12-nm, and a 200-nm EEZ has been granted to coastal states, removing the need for a coastal state to invoke “historical rights” to exclude other states from its deeply indented bays or gulfs. In none of these few cases has “historical rights” been invoked to claim a non-adjacent area beyond 200-nm from the coast, or to claim an entire or nearly entire sea bordering several states.
Second, under UNCLOS the term “historic bays” refers to internal waters, and the term “historic titles” refers to territorialseas. A state can claim “historical rights” over waters only as part of its internal waters or territorial sea. There is no freedom of navigation and no freedom of over-flight in internal waters or territorial sea. There is a right of innocent passage for ships in the internal waters and territorial sea.
The South China Sea, beyond the 12-nm territorial sea of coastal states, has never been considered as the internal waters or territorial sea of any state. Since time immemorial, ships of all nations have exercised freedom of navigation in the South ChinaSea. Likewise, since the time airplanes flew across the seas, aircraft of all nations have exercised freedom of over-flight over the South China Sea. If the South China were the internal waters or territorial sea of China, then no state could have exercised freedom of navigation and freedom of over-flight over the South China Sea. Indeed, China has stated that there is freedom of navigation and freedom of over-flight in the South China Sea, an admission that the South China Sea does not constitute its internal waters or territorial sea.
China’s 1992 Law on Territorial Sea and Contiguous Zone declares a 12-nm territorial sea measured from its baselines. Since China’s own law limits its territorial sea to 12-nm from its baselines, China cannot claim the waters within the 9-dashed line map as its territorial sea. The waters within the 9-dashed line claim cannot also be considered internal waters of any state because they are in the open sea bordering seven coastal states. The South China Sea falls under the UNCLOS definition of a semi-enclosed sea because it consists “entirely or primarily of the territorial seas and EEZs of two or more States.”
Since the time that Grotius’ idea of the free sea became part of international law, no nation could appropriate or claim “indisputable sovereignty” to any part of the oceans and seasbeyond its territorial sea or beyond what other states recognize as its internal waters. This is reflected in UNCLOS, which only grants a coastal state specified sovereign rights and jurisdiction over its EEZ and ECS, and expressly prohibits any coastal state from subjecting the high seas to its sovereignty.
Thus, the waters enclosed by China’s 9-dashed line claim are neither internal waters nor territorial sea of China. The waters cannot also form part of China’s EEZ or ECS because they are not drawn from China’s baselines and are beyond the limits of China’s EEZ and ECS as drawn from China’s baselines. In short, China’s claim to the waters enclosed by the 9-dashed line claim does not fall under any of the maritime zones recognized by international law or UNCLOS – namely, internal waters, territorialsea, EEZ, and ECS - that could be claimed by a coastal state. Only China seems to know under what maritime zone the 9-dashed line waters fall, but China is not telling the world except to claim “indisputable sovereignty” over such waters by “historical rights.”
Third, under the general principles and rules of international law, a claim of “historical rights” to internal waters or territorial sea must satisfy four conditions. One, the state must formally announce to the international community such claim to internal waters or territorial sea, clearly specifying the nature and scope of such claim. Two, the state must exercise effective authority, that is, sovereignty, over the waters it claims as its own internal waters or territorial sea. Three, such exercise of effective authority must be continuous over a substantial period of time. Four, other states must recognize, tolerate or acquiesce in to the exercise of such authority.
China fails to comply with any of these four conditions. China officially notified the world of its 9-dashed line claim only in 2009. Not a single country in the world recognizes, respects, tolerates or acquiesces in to China’s 9-dashed line claim. China has never effectively enforced its 9-dashed line claim from 1947 to 1994 when UNCLOS took effect, and even after 1994 up to the present. Thus, under the general principles and rules of international law, China cannot claim “historical rights” that pre-dated UNCLOS. Even assuming, for the sake of argument, that China has such “historical rights,” the entry into force of UNCLOS in 1994 extinguished such rights. Under UNCLOS, a state cannot claim any “historical right” to the EEZ or ECS of another state.
In the 2002 Asean-China Declaration on the Conduct of Parties in the South China Sea, China agreed that all claimant states shall resolve their disputes “in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea.” China did not state that “historical rights,” or any other circumstance, should be a factor in resolving the disputes. China thus agreed that only international law, in particular UNCLOS, should govern the resolution of the disputes in the South China Sea.
Clearly, there is nothing “historical” or “right” about China’s 9-dashed line claim because it is fairly recent, without fixed coordinates, ambiguous even to its own legal scholars, inconsistent with its own national law, contrary to the general principles and rules of international law, contrary to UNCLOS, contrary to the Asean-China DOC, and still evolving as recently as this year. Not a single state in the world recognizes, tolerates or acquiesces in to China’s 9-dashed line claim. By asserting their own claims to parts of the waters enclosed by China’s 9-dashed line claim, the other claimant states actually oppose and contest China’s 9-dashed line claim.
What is China’s offer to jointly develop the disputed areas?
China has been dangling to the Philippines and other claimant states its offer to jointly develop the disputed areas while shelving the sovereignty issues. This joint development offer originated from Deng Xiaoping’s three-part guideline: sovereignty belongs to China, shelve the disputes, and pursue joint development. There are at least three problems to this offer.
First, China wants to jointly develop the EEZ of the Philippines but refuses to jointly develop China’s own EEZ. In effect, China is saying to the Philippines, what is exclusively your economic zone belongs to both of us, but what is exclusively our economic zone is ours alone, and if you do not agree, our warships will be there to prevent you from developing your exclusive economic zone.
Second, as explained by Chinese officials and scholars, China’s offer of joint development is subject to the precondition that participating coastal states must first expressly recognize China’s “indisputable sovereignty” under its 9-dashed line claim. This precondition effectively means that once a state agrees to joint development, it must not only vacate any island it possesses in the Spratlys and turn over the same to China, it must also renounce any maritime claim within the 9-dashed line area. This precondition demanded by China is obviously inconsistent with its offer to shelve the sovereignty issue.
Third, if the Philippines agrees to China’s joint development offer, the Philippines will in effect give up its exclusive “sovereign right and jurisdiction” to exploit all the living and non-living resources in its own EEZ. The Philippines will also give up its exclusive right to exploit the mineral resources in its own ECS. The bottom line is that China’s joint development offer will negate the maritime entitlements of the Philippines under UNCLOS. This is constitutionally impermissible because our 1987 Constitution mandates, “The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.”
Naturally, not a single claimant state has agreed to China’s joint development offer. China’s response to the negative reaction of other claimant states to its joint development offer is to harass the ships of other claimant states exploring for oil and gas within their own EEZs. In May 2011, Vietnam protested that Chinese surveillance vessels cut off the cables of a Vietnamese ship surveying within Vietnam’s own EEZ. In December 2012, the Vietnamese again protested another cable-cutting act committed by two Chinese vessels on a Vietnamese ship surveying within Vietnam’s EEZ. In March 2011, the Philippines also protested that Chinese surveillance vessels menacingly circled a Philippine-commissioned ship surveying in the Reed Bank, which is within the Philippines’ EEZ.
These harassment tactics by the Chinese have prevented Vietnam and the Philippines from exploiting the resources within their own EEZs, an exclusive right guaranteed to them under UNCLOS. These harassment tactics only confirm that in practice China is claiming all the waters and resources within its 9-dashed line map, even if the waters and resources fall within the EEZ of other coastal states that have no overlapping EEZs with China.
The only joint development that is feasible in the Spratlys is for all claimant states to respect each others’ EEZs as guaranteed by UNCLOS, and to jointly develop the disputed areas beyond these EEZs. In the absence of overlapping EEZs in the Spratlys, the EEZ of a coastal state can never be a disputed area because UNCLOS, to which all claimant states in the Spratlys are parties, guarantees such EEZ to every coastal state. Beyond the EEZs, the extended continental shelves of claimant states in the Spratlys overlap and can be considered disputed areas, and thus open to joint development. This kind of joint development, with no preconditions, is friendly, fair, practical and durable because it is in accordance with UNCLOS. There is no bullying in this kind of joint development, and no state illegally appropriates the EEZ of another state.
Why did the Philippines file an arbitration case against China?
Following the tense standoff in April and May 2012 between Chinese and Philippines vessels in Scarborough Shoal, the Philippines withdrew in June 2012 its vessels from Scarborough Shoal on the understanding of a mutual withdrawal of vessels by both China and the Philippines. The Chinese, however, reneged on their commitment and refused to withdraw their vessels. Then in November 2012, China informed the Philippinesthat the Chinese surveillance vessels would remain permanently stationed in Scarborough Shoal. China was now in permanent occupation of Scarborough Shoal.
Scarborough Shoal is a submerged reef except for six small rocks that protrude not more than three meters above water at high tide. The width of the largest rock above water at high tide is only a few meters. The Philippines built a lighthouse on one of the rocks in 1965, and another lighthouse in 1991. From the 1960s to the 1980s Scarborough Shoal was a bombing range of American andPhilippine Air force planes practicing bombing runs. Prior to such practice bombings, American and Philippine authorities would give worldwide notices to mariners to avoid Scarborough Shoal. No protest was ever heard from China.
Scarborough Shoal appeared in the first map of the Philippinesissued under the American regime in 1899. Earlier during the Spanish regime, Scarborough Shoal, at that time called Panacot, appeared in several Spanish maps of the Philippines starting at least in the 1734 Murillo map. While Scarborough Shoal was outside the lines drawn in the 1898 Treaty of Paris, Spain and the United States two years later entered into the 1900 Treaty of Washington clarifying that islands to which Spain had “title or claim of title” were also ceded to the United States even though outside the lines drawn in the Treaty of Paris. Thus, Spain ceded Scarborough Shoal to the United States under the 1900 Treaty of Washington. Under the 1935 Constitution, the territories ceded by Spain to the United States under the Treaty of Paris and the Treaty of Washington form part of the Philippine national territory. Under the 2009 amendment to the Philippine Baselines Law, Scarborough Shoal is declared as a Regime of Islands for purposes of determining its baselines.
The Philippines had five options in responding to the Chinese occupation of Scarborough Shoal. First was to send naval vessels and marines to retake Scarborough Shoal. This was not feasible because of the superior Chinese naval forces. Second was to file a diplomatic protest with China. This was useless because China would simply ignore the protest – as it ignored the protest of the Philippines after China seized Mischief Reef 17 years earlier in 1995. Third was to ask Asean to lobby China to withdraw from Scarborough Shoal. This was not realistic because some Asean countries are hesitant to offend China. Besides, Asean countries do not take sides on territorial disputes. Fourth was to take the matter to the United Nations Security Council. This was also futile since China has a veto power in the Security Council. The fifth and only viable option was to bring the matter to an international tribunal for arbitration, where the playing field would be level and military power would not count, but only the rule of law would govern. Incidentally, the Philippines could also not invoke the Phil-U.S. Mutual Defense Treaty since the U.S. has made it clear that the islands, reefs and rocks in the South ChinaSea are outside the scope of the treaty.
With China’s occupation of Scarborough Shoal, the Philippine had no other recourse but to go to an Annex VII arbitral tribunal under UNCLOS. It was the only sensible and effective response that the Philippines could offer. Otherwise, nothing would stop China from occupying another rock, reef, or shoal within its 9-dashed line claim even if within the EEZ of the Philippines.
The Chinese occupation of Scarborough Shoal is an invasion of Philippine territory, giving rise to a territorial sovereignty dispute. However, the Philippines could not bring China to compulsory arbitration on a territorial sovereignty dispute without China’s consent. That is why the Philippines decided to do the next best thing - bring China to compulsory arbitration on the maritime aspect of China’s 9-dashed line claim. If China’s 9-dashed line claim is invalidated, then China will lose its excessive claim to the waters of the South China Sea. More significantly, China’s basis for claiming territorial sovereignty over the islands within its 9-dashed line claim will weaken considerably since the 9-dashed line claim is central to China’s historical claim to territorial sovereignty over the islands within the enclosed area.
Is China’s consent required for the compulsory arbitration?
When a state ratifies UNCLOS, the state consents in advance to be bound by the compulsory dispute settlement mechanism under UNCLOS on “any dispute concerning the interpretation or application” of the provisions of UNCLOS. However, a state is allowed to opt out of compulsory arbitration for certain matters, like disputes on maritime boundary delimitation. In 1996, ten years after ratifying UNCLOS, China opted out of compulsory arbitration for certain types of disputes, including any dispute on maritime boundary delimitation. A state remains bound to compulsory arbitration with respect to the interpretation or application of UNCLOS on disputes that the state has not excluded, or cannot exclude, from compulsory arbitration.
Thus, when an actual dispute arises involving the interpretation or application of UNCLOS, a signatory state is already deemed to have given its consent to compulsory arbitration, unless the dispute is one that is properly excluded from compulsory arbitration under UNCLOS.
The Philippines’ arbitration case against China involves the interpretation or application of UNCLOS on three main issues. The first issue is whether China’s 9-dashed line claim can negate the grant under UNCLOS of an EEZ to the Philippines. This issue does not involve any maritime boundary delimitation because there are no overlapping EEZs between China and the Philippines, certainly not in the island of Luzon facing the West Philippine Sea. Scarborough Shoal, whatever state may have sovereignty over it, does not generate an EEZ because only small rocks are found there. Admittedly, those rocks are not islands capable of sustaining human habitation or economic life of their own, which is the condition for an island to have an EEZ.
In the Spratlys there is no island capable of sustaining human habitation or economic life of its own. This is the position of the Philippines, Vietnam, Malaysia and Brunei. Thus, there are also no overlapping EEZs between the Philippines and other claimant states in the Spratlys. However, since China claims that islands in the Spratlys generate EEZs, the second issue is whether an island in the Spratlys actually generates an EEZ. The resolution of this issue does not involve any maritime boundary delimitation. This issue is an inquiry into whether an island in the Spratlys satisfies the UNCLOS requirement of being able to “sustain human habitation or economic life of [its] own.” If none of the islands satisfies this requirement, then there are no overlapping EEZs in the Spratlys and hence no maritime boundary delimitation is involved. If an island satisfies this requirement, and thus generates an EEZ, then the tribunal will so declare but will proceed no further without the consent of China because the issue will then involve overlapping EEZs requiring maritime boundary delimitation for its resolution.
In the event that the arbitral tribunal rules that an island in the Spratlys generates an EEZ, the Philippines can bring China to compulsory conciliation under an UNCLOS conciliation commission. Under UNCLOS, a state that opts out of compulsory arbitration involving maritime boundary delimitation shall nevertheless submit to compulsory conciliation. The conciliation commission will adjust the median line of the overlapping EEZs, taking into account Palawan’s more than 600-nm coastline as against the less than 1-nm coastline of the biggest island in the Spratlys. Under prevailing law of the sea jurisprudence, such huge disproportion in the opposing coastlines will entitle the island in the Spratlys to an EEZ either only seaward away from Palawan, or to a proportionally minuscule EEZ facing Palawan, if at all. Although the report of the conciliation commission is not binding on China, China is obligated under UNCLOS to negotiate in good faith with the Philippines based on the report of the conciliation commission.
The third issue is whether China can appropriate and construct artificial islands on low-tide elevations (LTEs) within the Philippines’ EEZ, like the massive structure China built on Mischief Reef, which China officially describes as a shelter for Chinese fishermen. LTEs are rocks above water at low tide but under water at high tide. LTEs beyond the territorial sea of a coastal state do not generate any maritime zone, not even a territorial sea. LTEs beyond the territorial sea are not subject to appropriation and to claims of territorial sovereignty because they are not land but part of the maritime zone. Under UNCLOS, only the adjacent coastal state can build artificial islands within its EEZ.
A corollary issue raised by the Philippines is whether China can subject the high seas in the South China Sea to its sovereignty. The high seas refer to the area beyond the EEZs of coastal states. China’s 9-dashed line claim subjects the high seas in the South China Sea to China’s “indisputable sovereignty.” UNCLOS expressly provides that no state shall subject the high seas to its sovereignty. This UNCLOS provision is a codification of centuries’ old customary international law.
Under UNCLOS, the refusal of a party to participate in a dispute settlement proceedings, where such participation is compulsory, “shall not constitute a bar to the proceedings” and the tribunal can still decide the case on the merits.
How long will it take for the arbitral tribunal to decide the case?
The 5-man Annex VII arbitral tribunal met for the first time last July 11, 2013 and designated The Hague as seat of the arbitration and the Permanent Court of Arbitration as the Registry of the proceedings. Although China has refused to participate in the proceedings, it is still being notified, and requested to comment, at every stage of the proceedings. Last Tuesday, August 27, 2013, the Tribunal issued an Order approving its Rules of Procedure and directing the Philippines to submit its Memorial not later than March 30, 2014. The Order states that the Memorial shall “fully address all issues, including matters relating to the jurisdiction of the Arbitral Tribunal, the admissibility of the Philippines’ claim, as well as the merits of the dispute.” The Order further states, “The Arbitral Tribunal will determine the further course of the proceedings, including the need for and scheduling of any other written submissions and hearings, at an appropriate later stage, after seeking the views of the Parties.” Based on the Tribunal’s Order requiring all issues to be addressed in the Memorial of the Philippines, it is possible that the Tribunal may decide the jurisdictional issue together with merits of the dispute. Arbitrations under Annex VII may take two to three years before a decision is reached.
What are the ramifications of this case on international law?
China’s 9-dashed line claim simply cannot co-exist with UNCLOS. Upholding one means killing the other. If China’s 9-dashed line claim is upheld or allowed to stand, UNCLOS will cease to be the law of the sea in the South China Sea. China will appropriate for itself not only the EEZs and ECSs of other coastal states but also the high seas and all the living and non-living resources found there. This will be the beginning of the end for UNCLOS. Other naval powers will likewise claim other oceans and seas, taking away the EEZs and ECSs of weak or defenseless coastal states. The oceans and seas of the planet will be governed by the rule of the naval canon.
Indeed, the maritime dispute between the Philippines and China is an acid test to the very survival of UNCLOS - whether the Rule of Law will govern the oceans and seas of our planet, or whether the rule of the naval cannon will prevail, as it did in the time of Grotius. Legal scholars on the law of the sea all over the world are keenly watching the outcome of the Philippines’ arbitration case.
What are the ramifications of this case on the Philippines?
The Philippines has wisely chosen to bring its maritime dispute with China to a forum where warships, fighter planes and missiles do not count, eliminating the military advantage of China and insuring that the outcome of the dispute will be decided only in accordance with the Rule of Law. It was a wise decision, but one borne out of necessity because it was actually the only viable option open to the Philippines.
We have to admit that as a nation we have neglected to maintain a credible self-defense force, particularly in our naval assets despite our being an archipelagic country with extensive coastlines and a vast EEZ. We are paying dearly for this neglect, by losing Mischief Reef in 1995, Scarborough Shoal in 2012, and most likely Ayungin Shoal in the near future. To remain a sovereign and independent nation, to maintain our territorial integrity, to avoid further humiliation, and to maintain our self-respect as a nation, we must build and maintain a credible self-defense force. There is simply no alternative to this. No nation can remain sovereign, independent and free for long without maintaining a credible self-defense force, even if international law and world opinion are on its side.
As a nation we must also understand that the maritime and territorial dispute with China in the West Philippine Sea is an inter-generational struggle to maintain our sovereignty and territorial integrity. Our generation may win the legal battle in the UNCLOS arbitration case, but for sure China will not simply abandon its massive structure in Mischief Reef or withdraw its surveillance vessels in Scarborough Shoal.
After securing a favorable ruling from the arbitral tribunal, our generation must still win over world opinion and convince the Chinese people that they will become a rogue nation if their Government continues to violate international law. The Chinese leaders may not survive politically if they simply abandon the 9-dashed line claim without the Chinese people being convinced that their 9-dashed line claim is against international law. The present generation of Chinese have been taught from the time they entered school that the South China Sea belongs to them. The next generation of Filipinos, and even the generation after them, must continue to wage a worldwide campaign to convince the Chinese people that the 9-dashed line claim has no basis in international law.
UNCLOS does not provide for a world policeman or sheriff to execute decisions of international arbitral tribunals. Member states of UNCLOS are expected to voluntarily self-execute decisions of arbitral tribunals. For a losing party, this will happen only if the Government of the day can survive politically even if it complies with a decision against its own state. A Government will survive politically if its people understand that the decision is mandated by international law. The world must explain to the Chinese people that the 9-dashed line claim is contrary to international law. No nation can claim the oceans and seas as its own. That is why it is necessary for the Philippines to first secure a ruling from an international tribunal that the 9-dashed line claim is contrary to international law.
The West Philippine Sea dispute can, and must be resolved, through the Rule of Law because it is the only fair, just and durable solution to a situation where the opposing states are vastly unequal in terms of military, economic and political strength. Any resolution of the dispute outside of the Rule of Law will only result in unequal treaties and plant the seeds of conflict for future generations.
The Rule of Law in the West Philippine Sea dispute is UNCLOS. All the claimant states to the dispute are parties to UNCLOS and are bound to comply with their treaty obligations under UNCLOS in good faith. If the West Philippine Sea dispute is settled in accordance with UNCLOS, then the world can be assured that there will be a just, permanent and lasting peace in the West Philippine Sea.
In the 17th century, England, Spain and Portugal, the naval superpowers of the day, claimed ownership of the oceans and seas they discovered, and enforced their claims through the barrel of the naval cannon. In 1609, Hugo Grotius, the father of international law, argued in his classic Mare Liberum (The FreeSea) that the oceans and seas belonged to all mankind and no nation could claim them as its own. After over a century of battle between those who insisted on ownership of the oceans and seas and those who fought for freedom of the oceans and seas for all mankind, Grotius’ idea eventually prevailed and became part of international law. It also laid the foundation for the law of the sea.
In this the 21st century, China, Asia’s rising regional naval power, is claiming ownership by historical right to almost 90% of the South China Sea. China’s claim, represented by its 9-dashed line map, echoes the 17th century maritime claims of the naval superpowers of that era. China is enforcing its claim through its rapidly growing naval fleet. If left to stand, China’s claim will bring the world back to the turbulent maritime era 400 years ago, when nations claimed the oceans and seas and maritime claims were settled through the naval cannon, not through the Rule of Law.
What is the dispute in the West Philippine Sea?
China claims “indisputable sovereignty” over all the waters, islands, reefs, rocks, seabed, minerals, and living and non-living resources falling within its 9-dashed line claim in the South China Sea. The 9-dashed line area comprises almost 90% of the total area of the South China Sea. China’s 9-dashed line claim encroaches on 80% of the Philippines’ 200-nm exclusive economic zone (EEZ) and 100% of its 150-nm extended continental self (ECS) facing the South China Sea - what thePhilippines calls the West Philippines Sea. China’s 9-dashed line claim has similar effects on the EEZs and ECSs of Vietnam, Malaysia, Brunei and Indonesia facing the South China Sea. The countries most adversely affected by China’s 9-dashed line claim, in terms of the size of the area encroached by the 9-dashed line claim, are the Philippines, Vietnam, Malaysia, Brunei and Indonesia, in that order.
Is there an international law that governs the resolution of theWest Philippine Sea dispute?
The 1982 United Nations Convention on the Law of the Sea, or UNCLOS, which entered into force in 1994, governs the conflicting maritime claims in the South China Sea. All the claimant states in the South China Sea dispute, including the Philippines and China, have ratified UNCLOS. UNCLOS is the Constitution for the world’s oceans and seas. UNCLOS codified the then existing customary international law of the sea, created novel entitlements in favor of coastal and landlocked states, and adopted a compulsory dispute settlement mechanism to insure that there is a final authoritative body to interpret and apply its provisions.
UNCLOS has been ratified by 165 states, comprising an overwhelming majority of the members of the United Nations. For this reason, even the novel maritime entitlements under UNCLOS in favor of coastal and land-locked states, which maritime entitlements have been consistently affirmed by international tribunals since 1994, now form part of customary international law. Even non-signatory states, as well as signatory states that later withdraw from UNCLOS, are bound by these maritime entitlements.
UNCLOS governs only maritime entitlements, maritime space and maritime disputes. The maritime entitlements of states - the territorial sea, EEZ and ECS and their resources – emanate and are drawn only from baselines on continental land or islands. UNCLOS provides for a compulsory dispute settlement mechanism, subject to certain types of disputes that states are allowed to exclude from compulsory arbitration. All states that ratified UNCLOS bound themselves in advance to this compulsory dispute settlement mechanism. The Philippines and China, having ratified UNCLOS, are bound by this compulsory dispute settlement mechanism.
UNCLOS does not govern territorial sovereignty disputes over land or land features in the oceans and seas. Territorial sovereignty disputes over land or land features - that is, islands, reefs and rocks above water at high tide - are governed by the rules and principles of general international law. An international tribunal can acquire jurisdiction over territorial sovereignty disputes only with the consent of the states that are parties to the particular dispute, in the absence of a treaty binding them in advance to the jurisdiction of such tribunal. There is no such treaty between the Philippines and China.
In short, any maritime dispute between the Philippines and China is subject to compulsory arbitration under UNCLOS, except for the disputes that China has excluded from compulsory arbitration in accordance with UNCLOS. In contrast, the territorial sovereignty dispute between the Philippines and China over land and land features is not subject to compulsory arbitration.
What is the right or entitlement of the Philippines under international law that is being violated by China?
Under UNCLOS, every coastal state is entitled as a matter of international law to a 200-nm EEZ, plus an additional 150-nm ECS where applicable, drawn from baselines on continental land or islands. In lieu of this additional 150-nm ECS, a coastal state may adopt an ECS of up to 100-nm seaward from the 2,500 meter isobath. This legal maritime entitlement is one of the most important reasons why developing coastal states approved UNCLOS. Without this important legal maritime entitlement there might have been no UNCLOS. In case of overlapping EEZs or ECSs, the opposing or adjacent coastal states shall negotiate in good faith an equitable maritime boundary.
Also, land-locked states joined UNCLOS for two reasons: first, the area of the sea beyond the EEZ of a coastal state, called the highseas, is open to fishing for all states, whether coastal or land-locked; and second, the seabed and its minerals beyond the ECS of a coastal state is declared the common heritage of mankind - belonging to all states, whether coastal or land-locked.
China’s 9-dashed line claim negates, and thus violates, the Philippines’ legal entitlement under UNCLOS to an EEZ and ECS. China’s 9-dashed line claim also negates, and thus violates, the right of all states on this planet, including thePhilippines, to fish in the high seas or the area beyond the EEZ of a coastal state. China’s 9-dashed line claim furthermore negates, and thus violates, the right of all states on this planet, including the Philippines, to the seabed and its mineral resources beyond the ECS of a coastal state. Finally, China’s claim of “indisputable sovereignty” to areas of the South China Sea beyond the EEZs of coastal states violates the prohibition under UNCLOS against states subjecting the high seas to their sovereignty.
What is the basis of China’s 9-dashed line claim?
China anchors its 9-dashed line claim on so-called “historical rights.” However, China admits that its 9-dashed line claim was first included in an official Chinese map only in 1947 during the Kuomintang Government. In 1998, China enacted its Exclusive Economic Zone and Continental Shelf Law to affirm its sovereign rights and jurisdiction over its EEZ and ECS under UNCLOS. A provision in this 1998 law states, “this Act shall not affect the historical rights of the People’s Republic of China.” This 1998 law is the first official reference in a Chinese law to China’s “historical rights” to maritime areas outside its EEZ and ECS. However, the rights of a state under international law cannot be enlarged by its domestic legislation, but only by customary international law or by a convention like UNCLOS.
China’s 9-dashed line claim was originally represented by 11 dashes in the 1947 Chinese map, then reduced unilaterally in 1950 to 9 dashes without explanation after the Communists ousted the Kuomintang from the mainland. In January this year China released a new official map adding a 10th dash on the eastern side of Taiwan. China’s claim was ambiguous from the start as China failed to explain its scope until January this year. Moreover, until now China has never revealed the exact coordinates of its 9 or 10-dashed line claim, and neither has China explained the basis under international law for its claim.
China formally announced to the international community its claim only in 2009 when it submitted to the United Nations a map depicting its 9-dashed line claim. This map, showing no coordinates of the 9 dashes, was appended to a note verbale China lodged to protest Vietnam and Malaysia’s joint submission of their ECSs. With this map, China claimed “indisputable sovereignty” over the islands and “adjacent waters” within the enclosed area, as well as sovereign right and jurisdiction over the “relevant waters,” seabed and subsoil within the enclosed area. China did not explain the meaning of the words “adjacent waters” and “relevant waters,” which are not used in UNCLOS. China thus failed to clarify the ambiguity of its 9-dashed line claim. China’s submission of its 9-dashed line claim to the United Nations was, of course, promptly protested by other claimant states.
China has always been ambiguous about the scope of its 9-dashed line claim – whether it is claiming only the islands within the 9-dashed line area, or whether it is also claiming all the waters and resources within the 9-dashed line area beyond the applicable maritime zones. Even Chinese scholars on the law of the sea are divided as to whether the 9-dashed line claim includes all the waters within the area, comprising almost 90% of the South China Sea. China’s incumbent judge in the International Tribunal for the Law of the Sea, Zhiguo Gao, wrote in 1994 that the 9 dashes merely identify the islands owned by China within the enclosed area and do not represent a claim to all the waters and resources within the enclosed area.
In January this year China appears to have clarified at least the scope of its claim by issuing a new official map describing 10 dashes on the map as its “national boundaries.” By using the term “national boundaries,” China is apparently claiming everything within these boundaries as part of its national territory. If so, China has clarified only this year that it is claiming all the waters, islands, reefs, rocks, living and non-living resources, the seabed and the minerals found within the previous 9, now 10-dashed line area. This is consistent with the aggressive actions of Chinese surveillance ships in harassing survey vessels of Vietnam and the Philippines exploring for oil and gas in their own EEZs that overlap the waters enclosed by the 9-dashed lines, even if the waters are outside the maritime zones of any disputed island and outside the EEZ or ECS of China.
Still, China has not explained the basis under international law of its “historical rights” to the 9-dashed line claim. China has not released an official paper or document explaining such “historical rights,” and the justification for such “historical rights” under international law. China has refused to defend its 9-dashed line claim before an international tribunal on the law of the sea. However, on its face alone the 9-dashed line claim has absolutely no basis under international law.
First, UNCLOS extinguished all historical rights of other states within the 200-nm EEZ of the adjacent coastal state. That is why this 200-nm zone is called “exclusive” – no state other than the adjacent coastal state can exploit economically its resources. Fishing rights that other states historically enjoyed within the EEZ of the adjacent coastal state automatically terminated upon the effectivity of UNCLOS. Moreover, UNCLOS prohibits states from making any reservation or exception to UNCLOS unless expressly allowed by UNCLOS. Any reservation of claims to “historical rights” over the EEZ or ECS of another coastal state is prohibited because UNCLOS does not expressly allow a state to claim “historical rights” to the EEZ or ECS of another state. In short, UNCLOS does not recognize “historical rights” as basis for claiming the EEZs or ECSs of other states.
The few cases where the waters beyond the territorialsea were still treated as internal waters because of “historical rights” all happened before the advent of UNCLOS, when the breadth of the territorial sea was still three miles. These cases involved deeply indented bays, like the Chesapeake Bay bordering Maryland and Virginia in the United States, or deeply indented gulfs like the Gulf of Fonseca in Central America bordering Honduras, Nicaragua, and El Salvador. These bays and gulfs are adjacent to the coast and have long been accepted by other states as internal waters. With UNCLOS, the territorial sea has been extended to 12-nm, and a 200-nm EEZ has been granted to coastal states, removing the need for a coastal state to invoke “historical rights” to exclude other states from its deeply indented bays or gulfs. In none of these few cases has “historical rights” been invoked to claim a non-adjacent area beyond 200-nm from the coast, or to claim an entire or nearly entire sea bordering several states.
Second, under UNCLOS the term “historic bays” refers to internal waters, and the term “historic titles” refers to territorialseas. A state can claim “historical rights” over waters only as part of its internal waters or territorial sea. There is no freedom of navigation and no freedom of over-flight in internal waters or territorial sea. There is a right of innocent passage for ships in the internal waters and territorial sea.
The South China Sea, beyond the 12-nm territorial sea of coastal states, has never been considered as the internal waters or territorial sea of any state. Since time immemorial, ships of all nations have exercised freedom of navigation in the South ChinaSea. Likewise, since the time airplanes flew across the seas, aircraft of all nations have exercised freedom of over-flight over the South China Sea. If the South China were the internal waters or territorial sea of China, then no state could have exercised freedom of navigation and freedom of over-flight over the South China Sea. Indeed, China has stated that there is freedom of navigation and freedom of over-flight in the South China Sea, an admission that the South China Sea does not constitute its internal waters or territorial sea.
China’s 1992 Law on Territorial Sea and Contiguous Zone declares a 12-nm territorial sea measured from its baselines. Since China’s own law limits its territorial sea to 12-nm from its baselines, China cannot claim the waters within the 9-dashed line map as its territorial sea. The waters within the 9-dashed line claim cannot also be considered internal waters of any state because they are in the open sea bordering seven coastal states. The South China Sea falls under the UNCLOS definition of a semi-enclosed sea because it consists “entirely or primarily of the territorial seas and EEZs of two or more States.”
Since the time that Grotius’ idea of the free sea became part of international law, no nation could appropriate or claim “indisputable sovereignty” to any part of the oceans and seasbeyond its territorial sea or beyond what other states recognize as its internal waters. This is reflected in UNCLOS, which only grants a coastal state specified sovereign rights and jurisdiction over its EEZ and ECS, and expressly prohibits any coastal state from subjecting the high seas to its sovereignty.
Thus, the waters enclosed by China’s 9-dashed line claim are neither internal waters nor territorial sea of China. The waters cannot also form part of China’s EEZ or ECS because they are not drawn from China’s baselines and are beyond the limits of China’s EEZ and ECS as drawn from China’s baselines. In short, China’s claim to the waters enclosed by the 9-dashed line claim does not fall under any of the maritime zones recognized by international law or UNCLOS – namely, internal waters, territorialsea, EEZ, and ECS - that could be claimed by a coastal state. Only China seems to know under what maritime zone the 9-dashed line waters fall, but China is not telling the world except to claim “indisputable sovereignty” over such waters by “historical rights.”
Third, under the general principles and rules of international law, a claim of “historical rights” to internal waters or territorial sea must satisfy four conditions. One, the state must formally announce to the international community such claim to internal waters or territorial sea, clearly specifying the nature and scope of such claim. Two, the state must exercise effective authority, that is, sovereignty, over the waters it claims as its own internal waters or territorial sea. Three, such exercise of effective authority must be continuous over a substantial period of time. Four, other states must recognize, tolerate or acquiesce in to the exercise of such authority.
China fails to comply with any of these four conditions. China officially notified the world of its 9-dashed line claim only in 2009. Not a single country in the world recognizes, respects, tolerates or acquiesces in to China’s 9-dashed line claim. China has never effectively enforced its 9-dashed line claim from 1947 to 1994 when UNCLOS took effect, and even after 1994 up to the present. Thus, under the general principles and rules of international law, China cannot claim “historical rights” that pre-dated UNCLOS. Even assuming, for the sake of argument, that China has such “historical rights,” the entry into force of UNCLOS in 1994 extinguished such rights. Under UNCLOS, a state cannot claim any “historical right” to the EEZ or ECS of another state.
In the 2002 Asean-China Declaration on the Conduct of Parties in the South China Sea, China agreed that all claimant states shall resolve their disputes “in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea.” China did not state that “historical rights,” or any other circumstance, should be a factor in resolving the disputes. China thus agreed that only international law, in particular UNCLOS, should govern the resolution of the disputes in the South China Sea.
Clearly, there is nothing “historical” or “right” about China’s 9-dashed line claim because it is fairly recent, without fixed coordinates, ambiguous even to its own legal scholars, inconsistent with its own national law, contrary to the general principles and rules of international law, contrary to UNCLOS, contrary to the Asean-China DOC, and still evolving as recently as this year. Not a single state in the world recognizes, tolerates or acquiesces in to China’s 9-dashed line claim. By asserting their own claims to parts of the waters enclosed by China’s 9-dashed line claim, the other claimant states actually oppose and contest China’s 9-dashed line claim.
What is China’s offer to jointly develop the disputed areas?
China has been dangling to the Philippines and other claimant states its offer to jointly develop the disputed areas while shelving the sovereignty issues. This joint development offer originated from Deng Xiaoping’s three-part guideline: sovereignty belongs to China, shelve the disputes, and pursue joint development. There are at least three problems to this offer.
First, China wants to jointly develop the EEZ of the Philippines but refuses to jointly develop China’s own EEZ. In effect, China is saying to the Philippines, what is exclusively your economic zone belongs to both of us, but what is exclusively our economic zone is ours alone, and if you do not agree, our warships will be there to prevent you from developing your exclusive economic zone.
Second, as explained by Chinese officials and scholars, China’s offer of joint development is subject to the precondition that participating coastal states must first expressly recognize China’s “indisputable sovereignty” under its 9-dashed line claim. This precondition effectively means that once a state agrees to joint development, it must not only vacate any island it possesses in the Spratlys and turn over the same to China, it must also renounce any maritime claim within the 9-dashed line area. This precondition demanded by China is obviously inconsistent with its offer to shelve the sovereignty issue.
Third, if the Philippines agrees to China’s joint development offer, the Philippines will in effect give up its exclusive “sovereign right and jurisdiction” to exploit all the living and non-living resources in its own EEZ. The Philippines will also give up its exclusive right to exploit the mineral resources in its own ECS. The bottom line is that China’s joint development offer will negate the maritime entitlements of the Philippines under UNCLOS. This is constitutionally impermissible because our 1987 Constitution mandates, “The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.”
Naturally, not a single claimant state has agreed to China’s joint development offer. China’s response to the negative reaction of other claimant states to its joint development offer is to harass the ships of other claimant states exploring for oil and gas within their own EEZs. In May 2011, Vietnam protested that Chinese surveillance vessels cut off the cables of a Vietnamese ship surveying within Vietnam’s own EEZ. In December 2012, the Vietnamese again protested another cable-cutting act committed by two Chinese vessels on a Vietnamese ship surveying within Vietnam’s EEZ. In March 2011, the Philippines also protested that Chinese surveillance vessels menacingly circled a Philippine-commissioned ship surveying in the Reed Bank, which is within the Philippines’ EEZ.
These harassment tactics by the Chinese have prevented Vietnam and the Philippines from exploiting the resources within their own EEZs, an exclusive right guaranteed to them under UNCLOS. These harassment tactics only confirm that in practice China is claiming all the waters and resources within its 9-dashed line map, even if the waters and resources fall within the EEZ of other coastal states that have no overlapping EEZs with China.
The only joint development that is feasible in the Spratlys is for all claimant states to respect each others’ EEZs as guaranteed by UNCLOS, and to jointly develop the disputed areas beyond these EEZs. In the absence of overlapping EEZs in the Spratlys, the EEZ of a coastal state can never be a disputed area because UNCLOS, to which all claimant states in the Spratlys are parties, guarantees such EEZ to every coastal state. Beyond the EEZs, the extended continental shelves of claimant states in the Spratlys overlap and can be considered disputed areas, and thus open to joint development. This kind of joint development, with no preconditions, is friendly, fair, practical and durable because it is in accordance with UNCLOS. There is no bullying in this kind of joint development, and no state illegally appropriates the EEZ of another state.
Why did the Philippines file an arbitration case against China?
Following the tense standoff in April and May 2012 between Chinese and Philippines vessels in Scarborough Shoal, the Philippines withdrew in June 2012 its vessels from Scarborough Shoal on the understanding of a mutual withdrawal of vessels by both China and the Philippines. The Chinese, however, reneged on their commitment and refused to withdraw their vessels. Then in November 2012, China informed the Philippinesthat the Chinese surveillance vessels would remain permanently stationed in Scarborough Shoal. China was now in permanent occupation of Scarborough Shoal.
Scarborough Shoal is a submerged reef except for six small rocks that protrude not more than three meters above water at high tide. The width of the largest rock above water at high tide is only a few meters. The Philippines built a lighthouse on one of the rocks in 1965, and another lighthouse in 1991. From the 1960s to the 1980s Scarborough Shoal was a bombing range of American andPhilippine Air force planes practicing bombing runs. Prior to such practice bombings, American and Philippine authorities would give worldwide notices to mariners to avoid Scarborough Shoal. No protest was ever heard from China.
Scarborough Shoal appeared in the first map of the Philippinesissued under the American regime in 1899. Earlier during the Spanish regime, Scarborough Shoal, at that time called Panacot, appeared in several Spanish maps of the Philippines starting at least in the 1734 Murillo map. While Scarborough Shoal was outside the lines drawn in the 1898 Treaty of Paris, Spain and the United States two years later entered into the 1900 Treaty of Washington clarifying that islands to which Spain had “title or claim of title” were also ceded to the United States even though outside the lines drawn in the Treaty of Paris. Thus, Spain ceded Scarborough Shoal to the United States under the 1900 Treaty of Washington. Under the 1935 Constitution, the territories ceded by Spain to the United States under the Treaty of Paris and the Treaty of Washington form part of the Philippine national territory. Under the 2009 amendment to the Philippine Baselines Law, Scarborough Shoal is declared as a Regime of Islands for purposes of determining its baselines.
The Philippines had five options in responding to the Chinese occupation of Scarborough Shoal. First was to send naval vessels and marines to retake Scarborough Shoal. This was not feasible because of the superior Chinese naval forces. Second was to file a diplomatic protest with China. This was useless because China would simply ignore the protest – as it ignored the protest of the Philippines after China seized Mischief Reef 17 years earlier in 1995. Third was to ask Asean to lobby China to withdraw from Scarborough Shoal. This was not realistic because some Asean countries are hesitant to offend China. Besides, Asean countries do not take sides on territorial disputes. Fourth was to take the matter to the United Nations Security Council. This was also futile since China has a veto power in the Security Council. The fifth and only viable option was to bring the matter to an international tribunal for arbitration, where the playing field would be level and military power would not count, but only the rule of law would govern. Incidentally, the Philippines could also not invoke the Phil-U.S. Mutual Defense Treaty since the U.S. has made it clear that the islands, reefs and rocks in the South ChinaSea are outside the scope of the treaty.
With China’s occupation of Scarborough Shoal, the Philippine had no other recourse but to go to an Annex VII arbitral tribunal under UNCLOS. It was the only sensible and effective response that the Philippines could offer. Otherwise, nothing would stop China from occupying another rock, reef, or shoal within its 9-dashed line claim even if within the EEZ of the Philippines.
The Chinese occupation of Scarborough Shoal is an invasion of Philippine territory, giving rise to a territorial sovereignty dispute. However, the Philippines could not bring China to compulsory arbitration on a territorial sovereignty dispute without China’s consent. That is why the Philippines decided to do the next best thing - bring China to compulsory arbitration on the maritime aspect of China’s 9-dashed line claim. If China’s 9-dashed line claim is invalidated, then China will lose its excessive claim to the waters of the South China Sea. More significantly, China’s basis for claiming territorial sovereignty over the islands within its 9-dashed line claim will weaken considerably since the 9-dashed line claim is central to China’s historical claim to territorial sovereignty over the islands within the enclosed area.
Is China’s consent required for the compulsory arbitration?
When a state ratifies UNCLOS, the state consents in advance to be bound by the compulsory dispute settlement mechanism under UNCLOS on “any dispute concerning the interpretation or application” of the provisions of UNCLOS. However, a state is allowed to opt out of compulsory arbitration for certain matters, like disputes on maritime boundary delimitation. In 1996, ten years after ratifying UNCLOS, China opted out of compulsory arbitration for certain types of disputes, including any dispute on maritime boundary delimitation. A state remains bound to compulsory arbitration with respect to the interpretation or application of UNCLOS on disputes that the state has not excluded, or cannot exclude, from compulsory arbitration.
Thus, when an actual dispute arises involving the interpretation or application of UNCLOS, a signatory state is already deemed to have given its consent to compulsory arbitration, unless the dispute is one that is properly excluded from compulsory arbitration under UNCLOS.
The Philippines’ arbitration case against China involves the interpretation or application of UNCLOS on three main issues. The first issue is whether China’s 9-dashed line claim can negate the grant under UNCLOS of an EEZ to the Philippines. This issue does not involve any maritime boundary delimitation because there are no overlapping EEZs between China and the Philippines, certainly not in the island of Luzon facing the West Philippine Sea. Scarborough Shoal, whatever state may have sovereignty over it, does not generate an EEZ because only small rocks are found there. Admittedly, those rocks are not islands capable of sustaining human habitation or economic life of their own, which is the condition for an island to have an EEZ.
In the Spratlys there is no island capable of sustaining human habitation or economic life of its own. This is the position of the Philippines, Vietnam, Malaysia and Brunei. Thus, there are also no overlapping EEZs between the Philippines and other claimant states in the Spratlys. However, since China claims that islands in the Spratlys generate EEZs, the second issue is whether an island in the Spratlys actually generates an EEZ. The resolution of this issue does not involve any maritime boundary delimitation. This issue is an inquiry into whether an island in the Spratlys satisfies the UNCLOS requirement of being able to “sustain human habitation or economic life of [its] own.” If none of the islands satisfies this requirement, then there are no overlapping EEZs in the Spratlys and hence no maritime boundary delimitation is involved. If an island satisfies this requirement, and thus generates an EEZ, then the tribunal will so declare but will proceed no further without the consent of China because the issue will then involve overlapping EEZs requiring maritime boundary delimitation for its resolution.
In the event that the arbitral tribunal rules that an island in the Spratlys generates an EEZ, the Philippines can bring China to compulsory conciliation under an UNCLOS conciliation commission. Under UNCLOS, a state that opts out of compulsory arbitration involving maritime boundary delimitation shall nevertheless submit to compulsory conciliation. The conciliation commission will adjust the median line of the overlapping EEZs, taking into account Palawan’s more than 600-nm coastline as against the less than 1-nm coastline of the biggest island in the Spratlys. Under prevailing law of the sea jurisprudence, such huge disproportion in the opposing coastlines will entitle the island in the Spratlys to an EEZ either only seaward away from Palawan, or to a proportionally minuscule EEZ facing Palawan, if at all. Although the report of the conciliation commission is not binding on China, China is obligated under UNCLOS to negotiate in good faith with the Philippines based on the report of the conciliation commission.
The third issue is whether China can appropriate and construct artificial islands on low-tide elevations (LTEs) within the Philippines’ EEZ, like the massive structure China built on Mischief Reef, which China officially describes as a shelter for Chinese fishermen. LTEs are rocks above water at low tide but under water at high tide. LTEs beyond the territorial sea of a coastal state do not generate any maritime zone, not even a territorial sea. LTEs beyond the territorial sea are not subject to appropriation and to claims of territorial sovereignty because they are not land but part of the maritime zone. Under UNCLOS, only the adjacent coastal state can build artificial islands within its EEZ.
A corollary issue raised by the Philippines is whether China can subject the high seas in the South China Sea to its sovereignty. The high seas refer to the area beyond the EEZs of coastal states. China’s 9-dashed line claim subjects the high seas in the South China Sea to China’s “indisputable sovereignty.” UNCLOS expressly provides that no state shall subject the high seas to its sovereignty. This UNCLOS provision is a codification of centuries’ old customary international law.
Under UNCLOS, the refusal of a party to participate in a dispute settlement proceedings, where such participation is compulsory, “shall not constitute a bar to the proceedings” and the tribunal can still decide the case on the merits.
How long will it take for the arbitral tribunal to decide the case?
The 5-man Annex VII arbitral tribunal met for the first time last July 11, 2013 and designated The Hague as seat of the arbitration and the Permanent Court of Arbitration as the Registry of the proceedings. Although China has refused to participate in the proceedings, it is still being notified, and requested to comment, at every stage of the proceedings. Last Tuesday, August 27, 2013, the Tribunal issued an Order approving its Rules of Procedure and directing the Philippines to submit its Memorial not later than March 30, 2014. The Order states that the Memorial shall “fully address all issues, including matters relating to the jurisdiction of the Arbitral Tribunal, the admissibility of the Philippines’ claim, as well as the merits of the dispute.” The Order further states, “The Arbitral Tribunal will determine the further course of the proceedings, including the need for and scheduling of any other written submissions and hearings, at an appropriate later stage, after seeking the views of the Parties.” Based on the Tribunal’s Order requiring all issues to be addressed in the Memorial of the Philippines, it is possible that the Tribunal may decide the jurisdictional issue together with merits of the dispute. Arbitrations under Annex VII may take two to three years before a decision is reached.
What are the ramifications of this case on international law?
China’s 9-dashed line claim simply cannot co-exist with UNCLOS. Upholding one means killing the other. If China’s 9-dashed line claim is upheld or allowed to stand, UNCLOS will cease to be the law of the sea in the South China Sea. China will appropriate for itself not only the EEZs and ECSs of other coastal states but also the high seas and all the living and non-living resources found there. This will be the beginning of the end for UNCLOS. Other naval powers will likewise claim other oceans and seas, taking away the EEZs and ECSs of weak or defenseless coastal states. The oceans and seas of the planet will be governed by the rule of the naval canon.
Indeed, the maritime dispute between the Philippines and China is an acid test to the very survival of UNCLOS - whether the Rule of Law will govern the oceans and seas of our planet, or whether the rule of the naval cannon will prevail, as it did in the time of Grotius. Legal scholars on the law of the sea all over the world are keenly watching the outcome of the Philippines’ arbitration case.
What are the ramifications of this case on the Philippines?
The Philippines has wisely chosen to bring its maritime dispute with China to a forum where warships, fighter planes and missiles do not count, eliminating the military advantage of China and insuring that the outcome of the dispute will be decided only in accordance with the Rule of Law. It was a wise decision, but one borne out of necessity because it was actually the only viable option open to the Philippines.
We have to admit that as a nation we have neglected to maintain a credible self-defense force, particularly in our naval assets despite our being an archipelagic country with extensive coastlines and a vast EEZ. We are paying dearly for this neglect, by losing Mischief Reef in 1995, Scarborough Shoal in 2012, and most likely Ayungin Shoal in the near future. To remain a sovereign and independent nation, to maintain our territorial integrity, to avoid further humiliation, and to maintain our self-respect as a nation, we must build and maintain a credible self-defense force. There is simply no alternative to this. No nation can remain sovereign, independent and free for long without maintaining a credible self-defense force, even if international law and world opinion are on its side.
As a nation we must also understand that the maritime and territorial dispute with China in the West Philippine Sea is an inter-generational struggle to maintain our sovereignty and territorial integrity. Our generation may win the legal battle in the UNCLOS arbitration case, but for sure China will not simply abandon its massive structure in Mischief Reef or withdraw its surveillance vessels in Scarborough Shoal.
After securing a favorable ruling from the arbitral tribunal, our generation must still win over world opinion and convince the Chinese people that they will become a rogue nation if their Government continues to violate international law. The Chinese leaders may not survive politically if they simply abandon the 9-dashed line claim without the Chinese people being convinced that their 9-dashed line claim is against international law. The present generation of Chinese have been taught from the time they entered school that the South China Sea belongs to them. The next generation of Filipinos, and even the generation after them, must continue to wage a worldwide campaign to convince the Chinese people that the 9-dashed line claim has no basis in international law.
UNCLOS does not provide for a world policeman or sheriff to execute decisions of international arbitral tribunals. Member states of UNCLOS are expected to voluntarily self-execute decisions of arbitral tribunals. For a losing party, this will happen only if the Government of the day can survive politically even if it complies with a decision against its own state. A Government will survive politically if its people understand that the decision is mandated by international law. The world must explain to the Chinese people that the 9-dashed line claim is contrary to international law. No nation can claim the oceans and seas as its own. That is why it is necessary for the Philippines to first secure a ruling from an international tribunal that the 9-dashed line claim is contrary to international law.
The West Philippine Sea dispute can, and must be resolved, through the Rule of Law because it is the only fair, just and durable solution to a situation where the opposing states are vastly unequal in terms of military, economic and political strength. Any resolution of the dispute outside of the Rule of Law will only result in unequal treaties and plant the seeds of conflict for future generations.
The Rule of Law in the West Philippine Sea dispute is UNCLOS. All the claimant states to the dispute are parties to UNCLOS and are bound to comply with their treaty obligations under UNCLOS in good faith. If the West Philippine Sea dispute is settled in accordance with UNCLOS, then the world can be assured that there will be a just, permanent and lasting peace in the West Philippine Sea.
