Some ironic twists in the South China Sea

A prophet is not honored in his own country. In 2021, retired Justice Francis H. Jardeleza proposed the West Philippine Sea (WPS) Baselines bill implementing the 2016 South China Sea Arbitral Award (SCS AA) ruling. Pursuant to the AA, each of the legal rocks or high tide elevations (HTEs) in the WPS that we claim as ours should be specifically identified by name and coordinates, and given baselines to mark the territorial sea (TS) they generate. Why? Evidence of intention to claim islands à titre de souverain (under sovereign title) “is an essential element of the process of consolidation of title” (Eritrea/Yemen, 1998). Territorial claims must specifically mention rather than make general references “to the islands” (para. 241, Phase 1), by public legislation regulating activity on disputed islands with specificity (Nicaragua/Colombia,2012; Burkina Faso/Republic of Mali, 1986).

Baselines drawn around a rock extends its territory by up to 12 nautical miles of TS, defeating the 200-nautical-mile exclusive economic zone (EEZ) and continental shelf (CS) of an oppositive landmass (Nicaragua/Honduras, 2007). The defunct Presidential Decree No. 1596 (1978) creating the Kalayaan Island Group (KIG), without naming things, simply placed all the Spratlys maritime features we claim within a huge polygonal box, saying everything inside, from maritime features, down to seabed, subsoil, and continental self, is ours. The AA’s “intertemporal law” broke up any such offshore archipelago claim (paras. 574-76) to a matter of individual rocks.

It seemed that nothing had come out of the proposal by Jardeleza, who, as solicitor general, filed the country’s arbitral case against China’s nine-dash line claim. But last week, by some ironic twist, Jardeleza’s WPS bill found clear echoes in an unexpected move by the behemoth across the pond, the People’s Republic of China. China’s constant coda has been the AA’s illegality and invalidity. Yet when push comes to shove, it proceeds to apply the key ruling in the AA to consolidate territorial interests. Following news of President Marcos’ signing of a new Philippine Maritime Zones Act (PMZA) and Philippine Archipelagic Sea Lanes Act (PASLA), The Diplomat reported that China’s Ministry of Natural Resources and Ministry of Civil Affairs responded by formally naming 64 islands and reefs in the SCS that China claims as theirs, providing each with “precise coordinates.”

Further, the Chinese Foreign Ministry disclosed that the Chinese government had also drawn the baselines of a TS around Bajo de Masinloc (BDM) using 16 base points. China claims BDM as part of its Nansha Qundao offshore archipelago. By marking a TS around it, China now unmistakably recognizes the AA’s ruling that no claimant state may constitute an offshore archipelago in the SCS. Only rocks possess a maritime zone there. And so it has now done for itself what Jardeleza’s WPS bill would have had the Philippines do three years ago. Earlier, without fanfare, Vietnam had also drawn up a new administrative map of HTEs in the SCS with the baselines of a TS marked around them.

The PASLA seeks to establish nautical highways through our archipelagic waters (AW). The PMZA defines the maritime zones the various land features of the Philippine archipelago are entitled to under the Law of the Sea, from internal waters, to AW, TS, contiguous zone (CZ), EEZ, and CS. Yet it does not name which WPS features we claim. Section 5 of the law only states that all HTEs in the KIG “shall have a territorial sea of 12 nautical miles from its baselines.” It adds, without identifying them, that all LTEs within 200 nautical miles from our archipelagic baselines form part of our EEZ. In the SCS Arbitration, the Philippine Memorial’s Annex 97 named with coordinates only 43 features in the WPS as ours, leaving out at least 82 other features. The PMZA does not tell us if it has likewise adopted the Annex 97 features. But all is not lost. The National Mapping and Resource Information Authority will draft a new Philippine map to be deposited with the United Nations, based on the PMZA and PASLA. This affords us a second opportunity to specifically identify, name, and provide coordinates to all Philippine-claimed WPS features, and where necessary, draw baselines around them to mark the extent of their TS and CZ. As China’s and Vietnam’s own acts underscore, now is no longer the time for strategic ambiguity—or further delay–on our part.

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Melissa Loja is postdoctoral fellow and lecturer in international law at the University of Copenhagen. Romel Bagares teaches international law at four Philippine law schools and the Philippine Judicial Academy.