Winning the war to exploit our EEZ

To win in any negotiation, transaction or war, it is essential to know the arguments, stance, strengths and weaknesses of the other side. President Duterte will need this truism when he visits China this Wednesday and brings up the arbitral award and the unannounced passage of Chinese warships in our territorial waters.

First, a little background. On May 7, 2009, China submitted to the Secretary General of the United Nations a map which, for the first time, formally showed the rough boundaries of its “nine dash line.” Simultaneously, it asserted “indisputable sovereignty over the islands in the South China Sea [SCS] and the adjacent waters, and… sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof.”

While lacking specific coordinates, the Chinese map appropriated roughly 80 percent of our exclusive economic zone (EEZ) recognized by the United Nations Convention on the Law of the Sea (Unclos).

China speedily and aggressively asserted its claims by seizing, reclaiming and building structures on several features in the Spratlys. It also repeatedly protested several service concessions granted by the Philippines to several companies to explore the presence of gas and oil in our EEZ, thereby effectively stopping them from their explorations.

To settle the Chinese claims, then President Benigno Aquino III initiated arbitration as provided under Unclos.

From the very start, China refused to participate in the arbitral proceedings, alleging that the tribunal had no jurisdiction, and insisting that the Philippine-initiated arbitration was about “territorial sovereignty over the relevant features in the [SCS], which is beyond the scope of [Unclos] and is consequently not concerned with the interpretation or application of the Convention.”

It added that “China and the Philippines have agreed… to settle their relevant disputes through negotiations. By unilaterally initiating the present arbitration, the Philippines… breached its obligations under international law.”

It further argued that the proper tribunal to settle land disputes is the International Court of Justice (ICJ), the official judicial organ of the United Nations (UN); that, under the UN Charter, a territorial dispute can be brought to the ICJ only with the consent of the disputants; and that China never consented to any proceeding regarding any dispute with the Philippines.

Overruling these arguments, the arbitral tribunal issued an “award” nullifying the “nine dash line,” allowing freedom of navigation in the SCS, and recognizing our sovereign entitlements in our EEZ. Sadly, however, the tribunal is powerless to enforce its award.

Consequently, though it won the arbitration, our country could not exploit the fish and natural resources in our EEZ because the powerful Chinese military and coast guard, reiterating China’s “indisputable sovereignty,” simply bars its exploitation by any realm.

Asking China to seek our government’s permission before its warships could sail through our territorial sea would not be as difficult, I think, as asking it to honor the arbitral award.

Without waiving the award directly or indirectly, President Duterte, in my humble opinion, may have a better chance at success if he would alternatively invoke, as I explained in my column last Sunday, China’s implied admission of our maritime entitlements in our EEZ as shown by its “Note” to the UN Secretary General taking “exceptions” only to RA 9522’s reference to the Spratlys and the Scarborough, and not to our EEZ.

In this manner, China would not have to budge on its abhorrence of the arbitral award and to lose face to its people, something sacred in their culture.

Let the world powers tangle with China over the enforcement of the arbitral award insofar as it nullifies the “nine dash line” and allows freedom of navigation.

Let us, in the meanwhile, concentrate on promoting our national interest and on getting China’s cooperation to enable us, without waiving our legal rights, to exploit and enjoy our God-given wealth in our EEZ, with or without the award.

Most of all, let us unite as one people in supporting and praying for our President as he tiptoes to his talks with Chinese President Xi Jinping.

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