China is NOT in possession of WPS

The July 12, 2016 arbitral Award that invalidated China’s nine-dash line claim to waters and resources in the South China Sea (SCS) categorically declared that China never controlled the SCS at any time in history. The Award expressly declared: “The Tribunal is unable to identify any evidence that would suggest that China historically regulated or controlled fishing in the South China Sea, beyond the limits of the territorial sea. xxx With respect to the seabed, the Tribunal does not see any historical activity that could have been restricted or controlled, and correspondingly no basis for a historic right.”

President Duterte, however, has repeatedly declared that China is “in possession” of the West Philippines Sea (WPS). Mr. Duterte first stated this in a press conference on Nov. 15, 2018, during the Asean-India Summit in Singapore, that China is “in possession” of the WPS. He repeated this in his July 22, 2019 State of the Nation Address (Sona), stating that China is “in possession” of the WPS. Recently, last July 27, 2020, he again repeated this in his Sona. That China is “in possession” of the WPS has become a mantra of Mr. Duterte.

The WSP is a part of the SCS, which is the larger sea. The WPS comprises the territorial sea, exclusive economic zone (EEZ), and extended continental shelf (ECS) of the Philippines, waters and resources over which the Philippines has sovereignty or sovereign rights. What are the ramifications when Mr. Duterte declares that China is “in possession” of the WPS?

First, Mr. Duterte directly contradicts the Award which ruled that China never controlled the SCS. To possess a sea like the WPS means to control that sea. Mr. Duterte is subverting the very basis of the Award that gave the Philippines a maritime area in the WPS larger than the total land area of the country.

Second, as pointed out by UP Prof. Jay

Batongbacal, a state cannot possess an EEZ or ECS because a state only has sovereign rights over the EEZ or ECS, unlike in the territorial sea where a state exercises sovereignty. For Mr. Duterte to say that China is “in possession” of Philippine EEZ and ECS in the WPS is to concede to China more rights than what international law or the UN Convention on the Law of the Sea (Unclos) grants to any state.

Third, the US, UK, France, Australia, Canada, Japan, and India regularly conduct freedom of navigation and overflight operations (FONOPs) in the SCS, including in Philippine EEZ and ECS in the WPS. These FONOPs forcefully and vividly demonstrate to the world that China is not in possession of the WPS. These FONOPs, which include naval and aerial drills, are lawful activities under international law and Unclos, and are therefore peaceful means of asserting the freedoms of the seas. These FONOPs affirm that there is an EEZ and ECS of the Philippines in the WPS. In effect, these FONOPs are regular and robust enforcement of the Award.

Fourth, under the international law doctrine of unilateral declarations, the statements of the President can bind the Philippines that China is “in possession” of the WPS. China can later on claim that the Philippines has ceded sovereign rights over its EEZ and ECS to China. Under this doctrine, unilateral declarations of heads of state bind the state even if such declarations are contrary to the Constitution and laws of a state.

What should Filipinos do now to prevent Mr. Duterte from conceding to China the Philippine EEZ and ECS in the WPS? The Department of Foreign Affairs should immediately issue a clarification that China is in fact not in possession, and legally can never be in possession, of the WPS. The Senate and the House of Representatives should pass resolutions declaring that China is not in possession of the WPS.

Finally, the Filipino people should vigorously show their rejection of Mr. Duterte’s false claim that China is “in possession” of the WPS. All professional, civic, social, political, student, and alumni organizations, and all Filipino citizens, should storm Malacañang with statements and text messages: China is not, and will never be, in possession of the WPS. This is the moment for all Filipinos to unite in defense of Philippine sovereign rights in the WPS.

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