Arbitral Award: What we won and lost

Presidential spokesperson Harry Roque’s recent statements over Julian Felipe Reef (JFR) evokes an urgent need to take stock of what we won and lost before the South China Sea (SCS) Arbitral Tribunal.

Roque is correct that the Philippines does not physically possess JFR.

In fact, our lawyers even said in Annex 97 of our Memorial in the SCS arbitral proceedings that JFR is occupied by China while also being claimed by Vietnam and the Philippines.

He is also correct that, per the coordinates our lawyers submitted to the Arbitral Tribunal, JFR is part of the territorial sea (TS) of two High Tide Elevations (HTEs)ʍVietnam-held Sin Cowe Island and China-held McKennan Reef.

HTEs are rocks unable to sustain human habitation and only generate a TS.

But against his statement that there is an overlap in maritime claims subject to delimitation, we say that the TS of McKennan/Sin Cowe cannot be delimited by the EEZ of the Philippines, because the TS is territory while the EEZ is not. Paragraph 177 of the Nicaragua v. Colombia arbitration before the International Court of Justice (2012) affirms this. Consequently, the Arbitral Tribunal assumed jurisdiction over the case in the absence of a delimitation issue.

We also disagree with him that our claim to JFR can still be maintained under Presidential Decree (PD) 1596, the 1978 law creating the Kalayaan Island Group (KIG).

PD 1596 created the KIG as an offshore archipelago by enclosing it with straight lines. However, PD 1596 did not name the features being claimed as part of the KIG.

Section 1 of the law states that within the KIG baselines, “the sea-bed, sub-soil, continental margin and air space shall belong and be subject to the sovereignty of the Philippines.“

Yet the Arbitral Tribunal nullified the baselines enclosing the KIG under PD 1596.

Paragraphs 574-575 of the Arbitral Award declared that any Philippine baselines enclosing the Spratly Islands would violate the UN Convention on the Law of the Sea (Unclos). To maintain the straight baselines of KIG under PD 1596 is to go against the Arbitral Award.

There being no more straight baselines identifying the KIG as an offshore archipelago, there is also no more physical basis for a Philippine claim to JFR as part of the waters or seabed of the KIG. JFR is part of the seabed of the TS of McKennan/Sin Cowe.

Can the Philippines make a claim to JFR based on the KIG as a regime of islands under Article 121 of Unclos?

The 2009 baselines law (RA 9522) enclaved the KIG as a regime of islands. This means that the individual features in the KIG shall generate individual maritime zones. Unfortunately, paragraph 407 of the Arbitral Award declared Pag-asa Island as a rock whose 12-nautical-mile territorial sea would not encompass JFR.

We gave up our claims to historic title in favor of the Unclos. That includes the TOP lines to which PD 1596 tacked the KIG baselines. The Arbitral Award noted in paragraph 223 that at the Unclos III Conference, the Philippines “was the principal proponent of the concept of historic title,” employing it “with respect to a claim (which it has since abandoned) to a territorial sea within the lines fixed by the Treaty of Paris of 1898 between Spain and the [US] that governed the cession of the Philippines.”

Giving them up was the only way to convince the international community of the justness of our cause against China’s expansive claims over the South China Sea.

It was the only way for us to win in the Arbitral Tribunal against China’s nine-dash line.

It is never too late for the Duterte administration and its opposition to craft a coherent strategy to immediately implement our gains from the Arbitral Award.

But such a strategy cannot be made out of a fantabulist’s appreciation of the facts and law of the Arbitral Award.

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Melissa Loja has a Ph.D. in international law. Romel Bagares teaches international law at two Manila law schools.