Scarborough, Spratlys and Benham

Why is China so passionate in owning Scarborough Shoal and several maritime features in the Spratlys in the South China Sea (SCS)? And yet, so easily conceded the Philippines’ rights over Benham Rise?

No controversy. The short answer is that Benham Rise is outside the so-called nine-dash line under which China claims historic title and sovereignty over almost the entire SCS.

But unlike the Spratlys and Scarborough Shoal, Benham Rise is totally submerged in water ranging from 50 to 5,000 meters in depth. This submarine status makes the exploitation of its vast resources extremely expensive and difficult to undertake.

On the other hand, the Spratlys and Scarborough Shoal are located in much shallower waters; in fact, China has enlarged some of the isles and rocks therein, not only to extract mineral resources but also, more visibly, to construct airports, seaports, buildings and other structures.

Mendoza’s primer. Superlawyer Estelito P. Mendoza recently wrote a primer on this subject, published by the UP Law Center. As one of the two vice chairs of the Philippine delegation to the United Nations Conference on the Law of the Sea, which convened during martial law in December 1973, he had an insider view of the negotiations.

(The other vice chair was then Foreign Undersecretary Jose Ingles. Alternating as chairs were then Sen. Arturo Tolentino and then Justice Secretary Vicente Abad Santos. All are now deceased.)

In 1982, the UN finally adopted the UN Convention on the Law of the Sea (Unclos) that came into force in 1994. Mendoza related that our delegation was able to include the “archipelagic principles” in the Unclos, and eventually the “ultimate compromise … to have a 12-mile territorial sea and an exclusive economic zone of 200 miles…”

On March 10, 2009, Republic Act No. 9522 was approved. It defined the baselines from which to measure our 1) 12-nautical-mile (NM) territorial sea, 2) 24-NM contiguous zone, 3) 200-NM exclusive economic zone, and 4) 350-NM continental shelf. (See my column on 4/2/17 for details.)

Thereafter, the Philippines notified the UN Secretary General (UNSG) of the baselines defined under RA 9522. It claimed the status of an “archipelagic state,” composed of the “Philippine archipelago” (Luzon, Visayas and Mindanao) plus two “regimes of islands,” the Kalayaan Island Group in the Spratlys and Scarborough Shoal (or Bajo de Masinloc).

Soon after, China submitted to the UNSG a “Note” dated April 13, 2009, alleging that RA 9522 “illegally claims Huangyan Island (referred to as ‘Bajo de Masinloc’ in the Act) and some islands and reefs of Nansha Islands (referred to as ‘The Kalayaan Island Group’ in the Act) of China… The Chinese Government hereby reiterates that Huangyan Island and Nansha Islands have been part of the territory of China since ancient time.”

Notably, it did not contest our rights over the “Philippine archipelago” and implicitly its corresponding territorial sea, contiguous zone, exclusive economic zone and continental shelf including Benham Rise.

No ruling on land. Mendoza opined, “Considering that … China had taken possession and occupied several of the islands (or features) within the Kalayaan Group of Islands and over Bajo de Masinloc,” the Philippines should have initiated a proceeding “in regard to these matters.”

As it is, however, our arbitral claim and the arbitral award itself did not settle the issue of Chinese occupation and sovereignty over these islands or features. In fact, the arbitral tribunal had no jurisdiction to award title or sovereignty over land territory. Consequently, China cannot be expected to surrender its occupation or sovereignty over them.

Mendoza recalled that in a conversation with then President Ferdinand Marcos, then Chinese Vice Premier Deng Xiaoping, during a state visit here in June 1975, advised that negotiation is the only solution. And if no agreement is reached, how should the matter be resolved? His answer was simply “to talk some more, and more until agreement is reached.”

Consistent with this “talk, talk, talk” approach is the Duterte administration’s pursuit of the proposed Code of Conduct between Asean and China, spoken about by Acting Foreign Secretary Enrique Manalo in a recent Inquirer Forum. Is this a better strategy to resolve the impasse in the SCS?  (To be continued.)

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