PH correctly stands its (maritime) ground

With regard to the current spat over the Western Philippine Sea, many local writers seem to believe that the Philippines has no choice but to seek protection from the United States as an ally against Chinese maritime encroachment. Unfortunately, this obscures the legal high ground that the Philippines currently holds in Recto Bank (Reed Bank in international charts).

Recto Bank is a completely submerged area of the seabed between the Kalayaan Islands and Palawan, well inside the 200 nautical mile exclusive economic zone and continental shelf to which the Philippines is entitled under the globally accepted 1982 United Nations Convention on the Law of the Sea. The Philippines therefore has sole rights to all living and non-living resources in that adjacent zone, including the right to explore and exploit any petroleum resources in the area.

Against these legal rights, China posits its claim to sovereignty and jurisdiction over the entire South China Sea, enclosed within the so-called “nine-dashed lines” map, based on ancient Chinese voyages and maps made 2000 years ago.

But claims to sovereignty and jurisdiction merely on the basis of ancient explorations have no credence in modern times. They are inconsistent with the historical record demonstrating that such voyages were never for conquest or territorial acquisition. Instead, they were for trade with the diverse pre-colonial peoples who inhabited the lands around the South China Sea, some of whom later became the first Filipinos.

About a century before Magellan’s arrival, China stopped all its maritime activities and abandoned all its foreign interests. The Chinese lived in Southeast Asia’s coastal communities as traders, not administrators. Local sultans and datus controlled the waters, some even demanding tributes for passage. So if anyone actually controlled any portion of the South China Seas in the past, they were more likely our Southeast Asian ancestors, not the Chinese.

None in the international community presently accept China’s broad claim to the South China Seas, which is contrary to customary international law that says the high seas cannot be subject to state sovereignty. The proof lies in the practice of our Southeast Asian neighbors regarding continental shelf boundaries. Indonesia, with Malaysia back in the 1960s and Vietnam in 2003, defined such boundaries.

Malaysia and Brunei recently signed an agreement to jointly explore for petroleum in a shared area west of Brunei and Sabah. Malaysia and Vietnam in 2009 claimed extended continental shelves before the Commission on the Limits of the Continental Shelf. All these activities disregard the nine-dashed lines.

Not even the 2006 Joint Marine Seismic Undertaking can validate China’s claim, since it clearly stated that it did not affect the parties’ positions on the South China Seas issues. Attempts to use it for China’s purposes would be seen as bad faith or subterfuge. If anything, the JMSU shows that China could not conduct or undertake unilateral actions in waters adjacent to the Philippines.

The Chinese claim to Recto Bank is also said to be based on maritime zones extending from the Spratlys, which China officially says are under its “indisputable sovereignty.” But China never actually administered these islands. They were passing hands as late as the 1940s, and Taiwan garrisoned only a single island in the 1950s. The Philippines, Vietnam and Malaysia played a game of occupation up to 1970s, before China joined the fray some 10 years later. By then, with no islands to occupy, China resorted to building on submerged rocks and reefs that were part of the seabed and could not be the legal basis of maritime claims.

Hypothetically, if the Spratlys were under Chinese sovereignty, the islands are unlikely to serve as basis for rights over Recto Bank. Were the entire South China Seas to be divided by an impartial international tribunal, those islands will probably not influence the EEZ and continental shelves boundaries in order to achieve a fair and equitable result.

The legal battle is the one battle that can be won, with or without the US. It is clearly China that is infringing on Philippine maritime rights through the former’s claims to and reported activities in Recto Bank, and its unlawful demands for a halt to all offshore exploration in the Western Philippine Sea.

As a matter of principle, the Philippines should neither be bluffed nor coerced into submission to China’s claims and activities in Recto Bank. It stands to lose not only Recto Bank, but the entire western seaboard from Batanes to Balabac: the nine-dashed lines deprive the Philippines of the EEZ and continental shelf there. It will eventually lead to the ouster of Southeast Asian states from their common maritime heritage and resource base.

Given the previous experiences of the Philippines with China’s activities in the South China Seas (Mischief Reef being the most telling example), the Aquino administration is correct in staking its position on legal and moral principles. It is the only stand that is truly worth making.

Jay L. Batongbacal is a professor at the UP College of Law. He holds a master’s degree in Marine Management, specializing in international marine environmental law, including the Law of the Sea, and a doctorate in the Science of Law, both from Dalhousie University in Canada.