What’s the fuss about Julian Felipe Reef?

This question has evoked confusing answers. Let me try to clarify them based on my humble understanding of the 1982 United Nations Convention on the Law of the Sea (Unclos), the July 12, 2016 Arbitral Award (AA), our local laws, and China’s known stance.

To begin with, coastal states are granted by Unclos an exclusive economic zone (EEZ) to their adjoining sea computed at 200 nautical miles (370 kilometers) seaward from their baselines (shores) at low waterline (low tide).

They are given sovereign rights to develop and exploit the marine resources therein like fish, oil, and minerals, but not ownership and sovereignty. This is akin to the right to enjoy the trees, plants, and fruits borne of a lease over a piece of land adjacent to one’s home, but not to the Torrens title thereto.

Julian Felipe Reef (English name: Whitsun, Chinese name: Niu’e Jiao) is located about 175 nautical miles west of Bataraza, Palawan. Thus, it lies within our EEZ. Nonetheless, Whitsun is alleged to be within the territorial sea (TS) of McKennan Reef which was judged by the AA to be a “High Tide Elevation” (HTE). Unclos entitles an HTE to a TS of 12 nautical miles around its shores. In contrast, Whitsun, as a “Low-Tide Elevation” (LTE), does not generate a TS.

Unclos also states that the TS of an HTE is superior to the overlapping EEZ of a state. Thus, the TS may be deemed an “independent” enclave or pocket within the EEZ of such state. And under the Unclos principle of “land dominates the sea,” the state that has sovereignty over an HTE is entitled to all the living and nonliving resources in its TS.

To be clear, the dispositive portion of the AA, specifically Paragraph 1203-B-3-b, “finds” six HTEs in the contested Spratlys: “Scarborough Shoal, Gaven Reef (North), McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef…”

Under its so-called “nine-dash line,” China asserts ownership of and sovereignty over McKennan, the nearby Hughes Reef, and Whitsun; in fact, over almost the entire South China Sea (SCS) including our EEZ. China has upgraded Hughes with reclamations, airports, buildings, etc. By the same assertion, it justifies its “swarm” of vessels and its recent ban on fishing in the SCS, an assertion disputed by us,

Vietnam, and the great powers of the world.

Vietnam claims occupancy of and sovereignty over Sin Cowe “Island” that was judged to be an HTE by Paragraph 1203-B-3-f of the AA’s dispositive portion. Though not a party to the AA, it also claims sovereign rights over Whitsun, which allegedly lies within the TS of Sin Cowe.

Our claim over Whitsun is based on Presidential Decree No. 1596 issued by President Ferdinand Marcos in 1978 before the Philippines signed the Unclos in 1982. This decree declared the “KALAYAAN ISLAND GROUP” (or Spratlys) including Whitsun to be “PART OF THE PHILIPPINE TERRITORY AND PROVID[ED] FOR THEIR GOVERNMENT AND ADMINISTRATION.” (Caps in original)

Consequently, if—repeat, if—China can prove its occupancy and sovereignty over Hughes/McKennan as an HTE, and their distances from Whitsun, then China may enjoy the TSs granted by Unclos to Hughes/McKennan. This is a question of fact that can be judged by the International Court of Justice (ICJ).

PD 1596 cannot, under international law, prevail over the AA and Unclos, because the PD was issued prior to our signing of Unclos; thus, it is deemed to have been modified by the AA and Unclos. Equally important, our victorious use of the AA to justify our sovereign rights over our huge EEZ estops us from denying its unfavorable parts. Otherwise, we would lose our high moral ground in fighting for our EEZ.

In sum, Unclos and the AA granted us sovereign rights to develop and exploit the marine resources of Whitsun as an LTE that lies within our EEZ. Nonetheless, if China can prove it has ownership and sovereignty over McKennan and/or Hughes, and that Whitsun is located within their TSs, then, under Unclos and the AA, it has the right to all living and nonliving resources in Whitsun. Ditto for Vietnam.

However, I doubt that China will do that because, as I already said, it claims sovereignty over almost the entire SCS under its “nine-dash line,” a claim the AA rejected. In turn, China does not recognize the AA and would not assert any right arising from it. What do we do? A clear, united recourse to diplomacy is fine, but, in my humble opinion, a clear, united, and simultaneous recourse under the rule of law to the ICJ is best.

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