11:17 PM August 10th, 2013

By: Artemio V. Panganiban, August 10th, 2013 11:17 PM

The Philippines’ dispute with China over the islets and reefs (and their underlying resources and overhead airspace) in the West Philippine Sea (WPS), also known as the South China Sea (SCS), is probably our most vexing security problem.

Origin of dispute. On May 7, 2009, China submitted a note verbale (or diplomatic letter) to the United Nations claiming “indisputable sovereignty” over all the islands in the WPS and their “adjacent/relevant waters” encompassed by its now famous “nine-dash line map.”

This map covers the entire SCS bordering the shorelines of Vietnam, Malaysia, Brunei, Taiwan and the Philippines. It converts the huge SCS into an internal waterway or lake of China, similar to a gigantic Laguna de Bay.

For the Philippines, the dispute involves mainly (1) the Kalayaan or Spratlys group of about 700 isles and reefs (called Nansha by China) located 370 kilometers west of Palawan, and (2) the Bajo de Masinloc, also known as Panatag or Scarborough Shoal (called Huangyan by China) located 220 km west of Zambales. The Philippines claims ownership of the resources in and sovereignty over many of the Kalayaan isles and Masinloc.

China asserts that “the Philippines’ illegal occupation of some of the islands and reefs of China’s Nansha Islands is the direct cause [of] the SCS dispute between China and the Philippines.” To back its assertion, China created “Sansha City” on July 24, 2012, “to administer” the whole SCS and the islets, reefs and resources there and sent armed naval vessels “to safeguard” them.

The Department of Foreign Affairs alleges that “it has become impossible to continue bilateral negotiations” with China given its “rigid” and “hard-line position of indisputable sovereignty over the WPS.”

Arbitration solution. The Philippines was thus constrained to initiate arbitral proceedings under the 1982 United Nations Convention on the Law of the Sea (Unclos). The Philippines and China along with 163 other countries ratified Unclos and are thus bound by it.

Essentially, the Philippines is asking the Arbitral Tribunal to declare that (1) China’s and the Philippines’ rights to maritime areas in the SCS were established by Unclos; (2) “China’s maritime claims in the SCS… are contrary to Unclos and invalid”; and (3) China should “desist from activities that violate” the Philippines’ maritime rights.

Unclos recognizes four types of maritime zones: (1) territorial waters, computed at 12 nautical miles (NM) from the baselines; (2) contiguous zone (24 NM from the baselines), (3) exclusive economic zone or EEZ (200 NM from the baselines); and (4) continental shelf (additional 150 NM) subject to certain conditions.

The littoral state exercises sovereignty over the territorial waters; customs, fiscal, immigration and sanitation authority over the contiguous zone; and rights to exploit the living and nonliving resources in the EEZ and continental shelf.

On March 10, 2009, the Philippines approved Republic Act 9522 defining the baselines from where its maritime zones are to be computed. The Supreme Court (Magalona vs Ermita, July 16, 2011, penned by Justice Antonio T. Carpio) upheld the law’s constitutionality, thereby complying with the prerequisite to avail of maritime rights granted under Unclos.

If the Philippines wins in the Arbitral Tribunal, China’s claims will be limited to the four maritime zones defined in Unclos. The decision would invalidate China’s nine-dash line map, and open the SCS to international navigation.

Moreover, the Philippines would be able to exploit the resources in its four maritime zones, including the vast oil, gas and mineral deposits.

Finally, this would be, to quote Foreign Secretary Albert F. Del Rosario, “a stirring victory of the rule of law.”

China, however, refused to participate in the Arbitral Tribunal arguing that Unclos does not cover territorial ownership or maritime boundary conflicts.

But the Philippines said the dispute is not about ownership of land or maritime boundaries, but about whether China’s map conforms to Unclos. In any event, under Unclos, a party’s refusal to participate “shall not constitute a bar to the proceeding.”

Intensify diplomacy. Assuming  arguendo  that China can prove its ownership, the islets are not entitled to maritime zones because they are not independently habitable, given that only soldiers on ration from China populate them. And even if they are habitable, China is entitled only to the maritime zone around those islets, which are dwarfed by the much longer baselines of Palawan and Luzon.

Can a Philippine victory be enforced? Well, the world powers, like the United States, will probably continue using SCS as a high sea, free from Chinese sovereignty. Since the Philippines does not have the armed clout to enforce its maritime rights, we could appeal to the United Nations Security Council. And failing in that (since China has veto powers in the Council), world opinion via the General Assembly would be our last enforcement option.

Having said that, I believe that alongside arbitration, we should intensify our diplomatic initiatives. Lately, Chinese President Xi Jinping has been quoted as wanting “to resolve its maritime territorial dispute peacefully and through talks… but will not abandon its legitimate rights and interests, nor will it give up its core national interests.” China, too, has agreed to multilateral talks with Asean, a modification of its earlier stance of negotiating only bilaterally with us.

I truly hope that this vexing security problem can be solved peacefully and amicably without loss of face for the Philippines and China.

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