The Maritime Zones Act, Asean, and China

As expected, China protested the enactment of our Maritime Zones Act (Republic Act No. 12064) that defines our maritime boundaries, including our exclusive economic zone (EEZ) and continental shelf (CS), and its twin law, our Archipelagic Sea Lanes Act (RA 12065) that designates the sea lanes and air routes that foreign military and foreign-registered civilian aircraft and vessels can use within the maritime zones identified by the first law. The simple reason: China claims historical sovereignty and rights over these same zones.

NEITHER SHOULD CHINA BE SURPRISED by their enactment for they merely preserve and buttress our sovereign rights over these zones as spelled out by the United Nations Convention on the Law of the Sea (Unclos) and the Arbitral Award handed down on July 12, 2016, under the auspices of The Hague-based Permanent Court of Arbitration as registrar.

These two complimentary laws also clarify and solidify the definition of our “National Territory” under Article I of our Constitution particularly those “other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas.”

By enacting these two laws, the Philippines has, as a consequence, limited its maritime (and territorial) boundaries defined under (1) the 1898 Treaty of Paris between the United States and Spain; (2) the 1900 Treaty also between the US and Spain, and (3) the controversial 1930 Treaty between the US and the United Kingdom apparently delimiting the boundary between the Philippines and “North Borneo.”

BY ITS ADHERENCE TO UNCLOS and its enactment of these two statutes, our country has voluntarily ceded some maritime claims that are defined in the three treaties. In fact, all 168 signatories of the 1982 Unclos, including nine of the 10 members of the Association of Southeast Asian Nations (Asean) and China, should obey Unclos and accordingly limit their maritime claims in the South China Sea (SCS).

To be accurate, while Asean member Cambodia has signed the treaty, it has not ratified it. And though China has ratified it in 1996, it has expressed reservations on certain provisions. Neither has the US ratified it; nonetheless, it follows and enforces it as its national interest dictates. It enforces freedom of navigation in the SCS as provided under Unclos and the Arbitral Award.

Despite its Unclos membership, China has steadfastly claimed sovereignty over all the islands and islets, and maritime rights over almost the entire SCS under its nebulous nine-dash line theory (lately amended to 10-dash line) that had been invalidated by the Arbitral Award. China’s more powerful and more numerous coast guard ships patrol SCS with impunity and enforce its theory with laser guns, water cannons, ship boardings, and other “gray zones” tactics. It justifies its actions under the old, old theory of discovery and conquest, a mode of acquiring title that has been overtaken by Unclos.

WHY THEN DID CHINA, IN THE FIRST PLACE, BECOME AN UNCLOS MEMBER? Because at the time Unclos was being negotiated in 1973-1982, the Middle Kingdom identified itself with the Third World countries that seek to protect themselves from the bigger powers through treaties like Unclos. Note that the People’s Republic of China (PRC) had just been recognized in 1971 by the United Nations as the legitimate “China” vis-à-vis the Kuomintang-led government that was driven to Taiwan by the hordes of Mao Tse Tung. Today, it has become a major military and economic power that no longer needs the protection of treaties to enforce its national interest. In fact, there is talk that the PRC is seriously thinking of withdrawing from Unclos given that its major rival, the US, is not a member.

And why is the US not a member? The legal excuse is that the US Senate has not ratified Unclos and will probably never ratify it because it wants its actions governed only by its national interest, not by treaties.

Finally, why is the Asean not united in opposing the Chinese militarization of the SCS? Because (1) Asean, unlike the North Atlantic Treaty Organization or Nato, is not a military alliance where attack on one member is an attack on all, (2) Cambodia is not an Unclos member and is more inclined to side with China because of their close economic and political ties, (3) Malaysia, the Philippines, and Vietnam have unsettled overlapping claims in their EEZ and CS, and (4) Asean acts via the consensus mode, not by majority vote.

The settlement of these claims among the three countries in item (3) have been attempted via diplomacy in the same way that the disputes between the Philippines and Indonesia were, or via the International Court of Justice, the judicial way chosen by Indonesia, Malaysia, and Singapore to resolve their claims.

However, since the issue is the interpretation and enforcement of Unclos, the way forward is to bring the conflicts among Malaysia, the Philippines, and Vietnam to arbitration as provided precisely by Unclos. In my humble opinion, this is the best way forward under the rule of law.

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