Hegemony vs. Cooperation in enclosed seas

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Jaime S. Bautista

Jaime S. Bautista

During President Ferdinand Marcos’ State Visit to China in 1975 to establish diplomatic relations, among China’s leaders he met was First Vice-Premier Deng Xiaoping. During this meeting, Marcos raised the issue of the Spratlys but Deng said that this issue should be left to future generations to discuss.

China lays claim to all of the waters, all of the seabed, and all of the maritime features within the so-called “nine dash line” which covers the Paracel and Spratly Islands and almost the whole of the South China Sea. On 7 May 2009, China submitted a map to the UN officially depicting the “nine dash line”, provoking immediate diplomatic protests from the Philippines, Vietnam, and Malaysia for violating the UN Convention on the Law of the Sea (UNCLOS). Indonesia also protested even though Indonesia has no claims in the South China Sea.

All these Asean countries and China are Parties to the UNCLOS, along with most countries of the world. Only some are not Parties like the United States. Nevertheless, the provisions of UNCLOS on the exclusive economic zone (EEZ) and the Continental Shelf (CS) are accepted as having become part of customary international law.

Like other coastal states, China has its own exclusive zone of fishery resources in its 200 miles of EEZ and it also has exclusive sovereign rights over the mineral (and oil) resources in its CS. But China’s “nine-dash line” encroaches on the EEZ and CS of the Philippines (and other Asean neighbors), thereby provoking tension in the region.


In the nineteenth century, war was the ultimate recourse to settle disputes between states. The Kellog-Briand Pact signed in Paris in 1928 between the United States and France and adhered to by other countries sought to outlaw war as a means of settling disputes. The UN Charter has since outlawed not only the use of, but also the threat, of force. It further provides that “Parties to any dispute, the continuance of which is likely to endanger peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” It further provides that the Security Council may investigate any dispute which may endanger the maintenance of international peace and security and that any Member of the United Nations may bring any such dispute to the attention of the Security Council or of the General Assembly.

Following the UN Charter, UNCLOS has explicitly imposed the obligation of settling disputes by peaceful means regarding the interpretation and application of its provisions. It requires Parties to a dispute to proceed expeditiously to an exchange of views on settling a dispute by negotiation or other peaceful means.

To ensure that there should be a peaceful settlement, UNCLOS further provides for a choice of five compulsory procedures entailing binding decisions to put an end to the dispute, namely referral to the International Tribunal of the Law of the Sea (ITLOS); the International Court of Justice; an Arbitral Tribunal under ITLOS; a Special Arbitral Tribunal for special categories of disputes, or the Sea-Bed Disputes Chamber of ITLOS.

Where there is no agreement on the compulsory procedure, the issue may be submitted to compulsory arbitration under the International Tribunal of the Law of the Sea. This represents yet another step in the progressive development of international law to secure the peaceful resolution of international disputes.

In the 21st century, the weaker powers in a dispute should be able to rely on the rule of law to resolve a dispute. In fact, all states should negotiate legal disputes on the basis of international law. If China has been embarrassed by the arbitration case filed by the Philippines, it is not the Philippines’ fault.

From the time that the Philippines established diplomatic relations with China, the Philippines has offered to discuss its dispute with China on the South China Sea as manifested during the meeting between Marcos and Deng Xiaoping. This meeting gave us the impression of the People’s Republic of China as a power with an attitude of restraint and flexibility in solving disputes.

At that time, China was in a period of recovery and consolidation. The Government of the People’s Republic of China was not China’s de jure government as far as the United States was concerned. It was also at odds with the other superpower, the Soviet Union. It was a time when China had emerged from a civil war, and before that, had languished as a weakened power during the Qing dynasty, subjected to unequal treaties and the loss of territories like Hong Kong and Macao.

China’s priority then was to strengthen its ties with the Third World, and with those socialist countries of the Second World aspiring to limit the influence of the Soviet Union. For this purpose, China was the constant host of visiting heads of state. This gave me the experience, during my assignment in Beijing (1976-79), of meeting a number of heads of state at the welcome/departure ceremonies and at the welcome/return banquets at the Great Hall of the People. Seven of those with whom I shook hands were later assassinated, executed or deposed.

A number of generations have passed since the Marcos meeting with Deng. Recent events have shown China showing off its military muscle and provoking tension in our region. In so doing, China has acted no differently from any other rising power seeking to expand its influence and to attain hegemony (dominance) in our region.

Indeed, the image of China as a non-hegemonic power has been smashed by China’s illegal occupation in 1994 of Mischief Reef (Panganiban Reef), a submerged bank approximately 130 miles west of Palawan and clearly part of the Philippines’ continental shelf under UNCLOS. Mischief Reef is not a group of islands or rocks over which a state may claim territorial sovereignty and is more than 600 miles southeast of China’s Hainan Island, the nearest Chinese land territory.

China has also illegally occupied McKennan Reef (Chigua Reef), a low tide elevation approximately 180 M west of Palawan Island and also part of the Philippines’ continental shelf, and not an island group or rocks. In both these reefs, China illegally constructed artificial islands on top of them despite Philippine protests.

The Chinese occupied Mischief Reef by taking advantage of the closure of the American bases at Subic and Clark. For many years, the Philippines had relied on the United States for its external defense. When the Philippine Senate voted to remove the American bases, our leaders lacked the foresight to anticipate the forcible occupation of our maritime territory and CS.

Unfortunately, the Philippines did not learn from China’s occupation of Mischief Reef and McKennan Reef. The alarm sounded by Congressman Roilo Golez in a privileged speech in Congress that Scarborough Shoal (Bajo de Masinloc) would be the next logical target of China’s expansion went unheeded. The Philippines simply placed its trust on diplomacy and was content to negotiate a Declaration of Conduct in the South China Sea for ASEAN countries and China to observe. Unlike Indonesia, Malaysia, Vietnam and the small island state of Singapore, the Philippines chose not to fund strong armed forces to deter aggression.

The prediction that China would illegally occupy Scarborough Shoal has come to pass. This shoal was under the effective exercise of jurisdiction by the Philippines with a small lighthouse in one of the islets of the shoal. In 1992, the Philippine Navy rehabilitated this lighthouse and reported it to IMO for publication in the List of Lights. The shoal was also used as an impact range by the Philippine and US Naval Forces stationed in Subic Bay for defense purposes.

Because of this recent violation, the Philippines and its Asean partners are now engaged again in negotiations to persuade China to agree to a legally binding Code of Conduct. But this time, the Philippines has availed of its legal remedy under UNCLOS. The Philippines has been careful in the ITLOS Arbitral Tribunal not to raise the issue of sovereignty over Scarborough Shoal which, under UNCLOS, are considered to be rocks with a territorial sea. {It is not considered an island because it is not capable of sustaining human habitation on its own.) The Philippines, however, has complained that our fishermen are being deprived of access to fish in our own EEZ.

The defense of our maritime zones and islands should be based on at least a tripod of strategies: Rule of Law, Diplomacy, and Strong Armed Forces, coupled with strategic alliances depending on the perceived threats. The third leg is still missing, although it is a prime duty of our Armed Forces and our Government, under our Constitution, “to secure the sovereignty of the State and the integrity of the national territory. “

Our hesitation to provide strong armed forces may be due in part to a perception that China does not seek hegemony, despite China’s claim to almost the entire South China Sea as its own lake, and despite China’s illegal occupation of part of our territory and continental shelf.

We forget that China’s history, like those of other empires, has shown periods of expansion of its territory from the heartland of the Han people, and alternating periods of contraction of its empire. At the height of its power, China’s conquests extended across the Pamirs to the shores of the Caspian Sea, incorporating many nationalities including the Uighurs of Turkish origin and the Tibetans. In the northeast, China exercised suzerainty over parts of Korea and in the southwest, China engaged in battles over the centuries with Vietnam. China, however, has not been a maritime power, except during the Ming dynasty in the fifteenth century when the legendary Zheng He’s fleet reached parts of the Middle East and East Africa. Yet China, now a rising Power, claims territories across the sea.

Soon, China may send a new Ambassador to Manila. We should then receive signals whether China is ready for peaceful cooperation in the disputed enclosed seas, which border China and contain the world’s three great archipelagoes, at the center of which is the Philippine Archipelago with its Luzon Sea renamed West Philippine Sea. Over the course of time, through diplomacy, the countries in our region might find a strategic balance, removing security threats and establishing a zone of peace and friendship for all countries.

Dr. Jaime S. Bautista served as Philippine Ambassador to Russia and ten other countries. He also worked with the Central Bank of the Philippines, taught as a university professor, practiced law, and gave expert advice as a consultant on good government.

jaime@jaimesbautista.com

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4 Comments

  1. Very valuable historical presentation by Dr J. Bautista. Excellent strategic opinion also presented which the Philippine Government should use in the diplomatic, political, and military/tactical plans in the next following developments about the issue.

  2. Ambassador Bautista is the type of expert that pnoy should have around him for advise and not some nincompoop/s and political sychopants that he has right now in the shade of a Coloma and the rest of them so called “experts”.

  3. The international court of justice has not ruled yet on island dispute on international waters. Falklands by all means is part of Argentina and yet the British are still occupying it. The worst is Guantanamo which inside Cuban territories and yet they cannot win it back from the Americans. Spratly and Scarborough have been stagnant more than forty years now. Pnoy should rethink our positions by entering into a bilateral agreement. There might oil there that is worth exploring and china has the means to explore it, why not join them. If no oil is found then china will loose their investments.