(The author is former Philippine Ambassador to Chile, Consul General to New York, Law Member of the Philippine Delegation to the final crafting of the Unclos in the United Nations)
In the hope of further clarifying certain essential features in the South China Sea (West Philippine Sea) problem and on the Arbitral Tribunal’s Award of July 12, 2016, this piece is written.
Stripped to the barest minimum, the Arbitral Tribunal’s Award (The Hague) on the South China Sea (West Philippine Sea):
1. “Declares, finds and notes” that the Philippines has an exclusive economic zone and continental shelf that includes Mischief Reef and Second Thomas Shoal, except Scarborough Shoal; that none of the high tide features in the South China Sea generates entitlements to an EEZ or continental shelf while those with low-tide elevations have no entitlements to a territorial sea EEZ or continental shelf and are not features capable of appropriation.
2. “Notes at the outset that both the Philippines and China claim sovereignty over Scarborough Shoal and that the two countries consider Scarborough Shoal to be traditional fishing ground for their citizens.”
3. “Consistent, however, with the limitations on its jurisdiction, refrains from any decision or comment on sovereignty over Scarborough Shoal.” The tribunal considers it important to emphasize that “fishing rights” at Scarborough Shoal are not predicated on any assumption that one party or the other is sovereign over the feature. Nor is there any need for such assumptions. The international law relevant to traditional fishing would apply equally to fishing by Chinese fishermen if the Philippines were sovereign over Scarborough Shoal as to fishing by Filipino fishermen, and also if China, too, were sovereign.” In other words, the tribunal’s conclusions regarding traditional fishing are “independent of the question of sovereignty.”
4. Obliges China under the United Nations Convention on the Law of the Sea or Unclos to preserve and protect the marine resources and environment in the disputed sea.
5. Recognizes that the matters submitted for arbitration by the Philippines do not concern sovereignty in concept of owner and that the country repeatedly requested that the tribunal refrain from making it an issue.
6. Upholds that the maritime areas of the South China Sea covered by the relevant part of the “nine-dash line” are contrary to the convention and without lawful effect “to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the convention” and also declares that the convention supersede[s]any historic rights, or other sovereign rights or jurisdiction, in excess of the limits imposed therein. (Underscoring supplied).
Therefore, the Award is all about the “maritime entitlements” of a State or States under the Unclos, the interpretations and clarifications of certain provisions such as PH maritime entitlement to an EEZ that includes Mischief Reef and Second Thomas Shoal. It notes or declares that some of the actuations of China were not in accord with the obligations of a State party to the convention to preserve and protect the marine resources and their environment. The Award, however, did not rule on the question of China’s claim of sovereignty in concept of owner in the South China Sea under the “nine-dash line.”
The Arbitral Tribunal lacks jurisdiction on disputes regarding sovereignty in concept of owner (territorial sovereignty, but has jurisdiction on “sovereign rights for the purpose of exploring, conserving and managing the natural resources, whether living or non-living” in the exclusive economic zone (Article 56, Part V, Unclos). It is the International Court of Justice that has jurisdiction over dispute regarding “territorial sovereignty” or “sovereign rights” in concept of owner.