The SCS Arbitral Award and Julian Felipe Reef

The Arbitral Award did not declare that the waters of Julian Felipe Reef (JRF) are part of the Philippines’ exclusive economic zone (EEZ).

That is not necessarily a bad thing.

The Award states that the Philippine claim to EEZ covers only the waters “within 200M of the Philippine coast, but beyond 12M from any high-tide feature within the South China Sea.” High-tide elevations (HTEs) include rocks that have a territorial sea only. The Award declared Sin Cowe Island, McKennan Reef, and Pag-Asa as rocks. Though disputed, Sin Cowe is occupied by Vietnam; McKennan, by China; and Pag-Asa, by the Philippines.

The Julian Felipe Reef is inside the territorial seas of Sin Cowe and McKennan, respectively. It is outside the territorial sea of Pag-Asa. Thus, the waters of JFR are beyond the Philippine claim to EEZ.

In its original claim, the Philippines asked the Arbitral Tribunal to declare all waters within 200 miles from the baselines, including those of JFR, as the Philippine EEZ. However, in its final submission, it confined its claim to the waters “beyond 12M from any [HTE].” This was a strategic sacrifice that served two purposes. First, the Philippines and China had reserved maritime delimitation issues from arbitration or adjudication. The Tribunal would have declined jurisdiction had the Philippines maintained its original claim to the EEZ that overlaps with the territorial sea of any disputed feature. Second, the territorial sea is in the same category as land territory, for it is subject to the full sovereignty and plenary authority of the coastal state. In contrast, the EEZ is not territory and is subject to merely the economic rights and functional jurisdiction of the coastal state. All constitutional, civil, and criminal laws apply to the former but not to the latter. Consequently, had the Philippines maintained its original claim that all the waters within 200 miles are EEZ, it would have downgraded the territorial waters of Pag-Asa and other features that it occupies or claims. It would have shed off territory, just as it shed off territory in 2009 when it surrendered the territorial sea enclosed by the Treaty of Paris in exchange for the EEZ.

In other words, the Philippines made a sacrifice for rule of law in the SCS. It paid off. The Tribunal assumed jurisdiction and struck down China’s nine-dash lines.

At the same time, the Tribunal virtually nullified Presidential Decree No. 1596 when it declared that all straight baselines enclosing the Spratly Islands violate Article 7 and Article 47 of Unclos. Thus, the baselines under PD 1596 enclosing the Kalayaan Island Group (KIG) are no more. Like China, the Philippines must comply with this ruling. Consequently, the waters of JFR cannot be said to be part of the KIG.

What, then, is the status of the Chinese vessels in the waters of Julian Felipe Reef? If these are military or state vessels for noncommercial purpose, they enjoy sovereign immunity, more so while within the territorial sea of McKennan (Ara Libertad Case). The Philippines has no EEZ jurisdiction over them. If these are commercial vessels, their presence and economic activities within the territorial sea of McKennan are not subject to Philippine EEZ jurisdiction. To be sure, the Philippine must protest the presence of these vessels to preserve its territorial claims to McKennan and Sin Cowe and the waters of JFR. However, the UN Charter proscribes the use of aggression, except in self-defense.

The moment these commercial vessels stray beyond the territorial sea of McKennan/Sin Cowe and into the Philippine EEZ, their economic activities become subject to Philippine jurisdiction. If the vessels are not engaging in economic activities while within the Philippine EEZ, their presence could fall under freedom of navigation. However, the Philippines can pursue a complaint with the International Maritime Organization for violation of regulations on safety of navigation.

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Melissa Loja has a PhD in international law.