• PNoy cannot ignore UNCLOS remedy

    3
    Jaime S. Bautista

    Jaime S. Bautista

    The complaint for arbitration against the People’s Republic of China filed with the International Tribunal of the Law of the Sea is mainly to defend the Philippine’s sovereign rights over its continental shelf and exclusive economic zone, and to reserve the right to request for provisional measures should these become necessary.
    The UN Convention on the Law of the Sea (UNCLOS), to which both the Philippines and the People’s Republic of China are states parties, determines the legal order of the oceans and seas and defines the maritime areas of coastal states. Under UNCLOS, coastal states are entitled to have the following maritime areas as defined therein: territorial sea, contiguous zone, exclusive economic zone (EEZ) and continental shelf.

    If there should be a dispute concerning the maritime areas of coastal states, like their EEZ and their continental shelf, Part XV of UNCLOS provides for the regime of settlement of disputes on the interpretation and application of the Convention. As the Philippines’ complaints in the arbitration case have been the subject of good faith negotiations between the Philippines and China, the Philippines has chosen to bring this arbitration before the International Tribunal of the Law of the Sea.

    The Philippines’ request for arbitration of its maritime areas does not call for the determination of which Party enjoys sovereignty over any island claimed by both the Philippines and China or over any other island in the South China Sea. This is because, unlike the preliminary question of what constitutes an island, what are rocks, and what are maritime features that form part of the continental shelf, which are determined by the provisions in UNCLOS, the issue of who has sovereignty over an island is determined by the general principles of international law on acquisition and loss of territory. The territorial issue of sovereignty can be brought to the International Court of Justice or to arbitration only with the consent of the states concerned. In the case of arbitration of maritime areas before ITLOS, the advance consent was given by states upon becoming parties to UNCLOS.

    Because of the remedy available to the Philippines under Part XV of UNCLOS, no Philippine president could rightly ignore legal advice to pursue arbitration to defend the our country’s sovereign rights over its EEZ and Continental Shelf.

    Part V of UNCLOS provides that the EEZ is an area beyond and adjacent to the territorial sea, which shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

    In the EEZ, the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, and other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds. The coastal state also has jurisdiction over the establishment and use of artificial islands, installations and structures; marine scientific research; and the protection and preservation of the marine environment. On the other hand, other states enjoy freedom of navigation in the EEZ.

    Under Part VI of UNCLOS, the continental shelf of a coastal state comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of two hundred nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

    Under Article 77 of Part VI, the coastal state exercises over the continental shelf sovereign rights for the purpose of exploring and exploiting its natural resources. These rights are exclusive in the sense that if the coastal state does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the Coastal state. The rights of the coastal state over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.

    Under Part VIII, Article 121 of UNCLOS entitled “Regime of Islands”, an island is a naturally formed area of land, surrounded by water, which is above water at high tide. Its territorial sea, contiguous zone, exclusive economic zone, and continental shelf shall be determined in accordance with the provisions of UNCLOS applicable to other land territory, except when they are rocks which cannot sustain human habitation or economic life of their own in which case they shall have no exclusive economic zone or continental shelf.

    In its Notification and Statement of Claim presented to the ITLOS Arbitration Tribunal, the Philippines complained that China has unlawfully exploited the living and non-living resources in the Philippines’ EEZ and Continental Shelf and that China has unlawfully prevented the Philippines from exploiting living and non-living resources within its EEZ and Continental Shelf. The complaints are summarized as follows:
    China has unlawfully seized parts of the Philippines’ Continental Shelf, namely Mischief Reef (Panganiban Reef) which is a submerged bank approximately 130 M from Palawan and more than 600 M southeast of China’s Hainan Island, the nearest Chinese land territory; and McKennan Reef (Chigua Reef), a low tide elevation approximately 180 M west of Palawan Island. In both cases, China has unlawfully constructed buildings and other facilities on stilts and concrete platforms, despite Philippine protests. Furthermore, China has also wrongfully sought to prevent Philippine vessels from approaching Mischief Reef and McKennan Reef even though the surrounding waters are within the Philippines exclusive economic zone.

    China has also seized Scarborough Shoal (Bajo de Masinloc), which are literally six small rocks that protrude above sea level within the Philippines’ exclusive economic zone, and has wrongfully prevented the Philippines from navigating, or enjoying access to the living resources within this zone, even though it forms part of the Philippines EEZ. None of the rocks, which lie in close proximity to one another, generates entitlement to more than a 12 M territorial sea. Yet, China, which like the Philippines claims sovereignty over Scarborough Shoal, claims a much larger maritime zone for itself, to the limit of the “nine dash line” approximately 70 M to the east. Until April 2012, Philippine fishing vessels routinely fished in this area which is within the Philippines EEZ. Since then, China has prevented the Philippines from fishing at Scarborough Shoal or in its vicinity and undertaken activities inconsistent with the Convention. Only Chinese vessels are now allowed to fish in these waters, and have harvested, inter alia, endangered species such as sea turtles, sharks, and giant clams which are protected by both international and Philippine law.

    The Philippines also complained that China, by claiming almost the entirety of the South China Sea, has unlawfully interfered with the exercise by the Philippines of its rights to navigation and other rights under the Convention in areas within and beyond the 200 M of the Philippines’ archipelagic baselines. The complaints are summarized below:
    Specifically, China claims “sovereignty” or “sovereign rights” over some 1.94 million square kilometers, or 70% of the Sea’s waters and underlying seabed within its so-called “nine dash line.” In the east, the “nine dash line” depicted in China’s letter of 7 May 2009 to the United Nations Secretary General is less than 50 M off the Philippine Island of Luzon. In the southeast, it is within 30 M from Palawan. In both respects, it cuts through – and cuts off – the Philippines 200 M exclusive economic zone and continental shelf, in violation of UNCLOS. Within the area encompassed by the “nine dash line”, China has engaged in conduct that has unlawfully interfered with the Philippines right of navigation, notwithstanding that some of the area is in the Philippines’ own exclusive economic zone, and the rest is high seas.

    The Philippines maintains that China’s claims in the South China Sea based on its so-called “nine dash line” are contrary to UNCLOS and invalid. Submerged features in the South China Sea such as the Gaven Reef and the Subi Reef, which are located respectively 205 M northwest of Palawan and 230 M west of Palawan, not being above sea level at high tide, and not located in the coastal State’s territorial sea, are part of the seabed and cannot be acquired by a State, or subjected to its sovereignty, unless they form part of that State’s Continental Shelf under Part VI of UNCLOS. Johnson Reef located approximately 180 M northwest of Palawan, Cuarteron Reef located approximately 245 M west of Palawan, and Fiery Cross Reef located approximately 255 M west of Palawan, though having a few rocky protrusions at high tide, are uninhabitable and incapable of supporting economic life in their natural state, and are, therefore, rocks within the meaning of Article 121 (3) of UNCLOS, and cannot have maritime zones greater than 12 miles surrounding them.

    Moreover, in the case of Johnson Reef, the maritime zones claimed by China unlawfully encroach upon the Philippines’ 200 M exclusive economic zone and continental shelf extending from Luzon and Palawan, and prevent the Philippines from enjoying its rights under the convention within 200 M.

    In June 2012, China formally created a new administrative unit under the Province of Hainan, and placed the entire maritime area within the “nine dash line” under the authority of the province of Hainan, which in November 2012, promulgated a law that requires foreign vessels to obtain China’s permission before entering the waters within the “nine dash line”, and provides for inspection, expulsion and detention of vessels that do not obtain such permission. The law went into effect on 1 January 2013.

    The Chinese may be willing to wait a hundred years before resolving the maritime issues under arbitration but it is obvious that this is against the Philippines’ interest. The interests of our population are best served by obtaining the ITLOS’ Award determining what rightfully belongs to the Philippines under the UN Convention on the Law of the Sea and requiring China to comply with its international obligations under UNCLOS to respect these rights. This is the peaceful and reasonable way of resolving legal issues between law abiding and friendly neighbors. What is ours is ours and what is yours is yours.

    Arbitration on the Philippines’ maritime areas is the first step to have fruitful discussions on the matter of joint cooperation in the enclave covering the area with territorial disputes in the West Philippine Sea/South China Sea relating to the Spratlys. The Philippines is not involved with respect to the Paracels. The Philippines has taken an initiative on the matter of joint cooperation in the WPS/SCS. The Philippine vision was officially submitted during the ASEAN Ministerial Meeting at Bali, Indonesia in 2011 in a Philippine paper entitled “ASEAN-China Zone of Peace, Freedom Friendship and Cooperation in the WPS/SCS.”

    Ambassador Jaime S. Bautista is a Doctor of Laws. His email is jaime@jaimesbautista.com.

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    3 Comments

    1. By your analysis Mr. Bautista, that you have arrived at the conclusion that the Philippines is pursuing an out of the normal procedure of going directly to the tribunal ITLOS without having to avail our state to the arbitration procedures available via provisions of the UNCLOS part XV, and to your opinion no Philippine President can ignore the UNCLOS settelement procedure.

      However, this is a matter of the urgency of the Filipinos and the Chinese equally. These are not countries professing opinions on ownership of some remote islands, these are states occupying, encroaching, harvesting the resources of disputed islands within their understood national territories.

      Intuitively, the Philippine government would have considered UNCLOS arbitration, however to the best of its judgment it opted to go straight to ITLOS and implied that arbitration that could have went on under UNCLOS would not have been fruitful given the available parameters and urgency constraints during that time. The advance consent that the Philippines from China of bringing the resolution of this problem before ITLOS would have been given to China. However the approval of the consent by China is not required. I am certain our Filipino diplomats have carefully deposed this consent in formal letters to China.

      If there is a conflict between ITLOS and UNCLOS regarding the mutually agreed UNCLOS consent prior requirement before bringing any case to the ITLOS tribunal, there would have been provisions to that effect in the ITLOS by-laws. The same would have been true if this case have been brought upon the ICC.

    2. PNoy must use all diplomatic and legal means to solve the problem with China. Arrogance and being stubborn will not work. The King of Pork must change his style.