WHEN nations were negotiating what would eventually become the United Nations Convention on the Law of the Sea (Unclos of 1982), the People’s Republic of China championed the interests of the developing countries. China insisted that the exclusivity of the 200-nautical mile economic zones granted to coastal nations should not be compromised by some historic fishing rights claimed by superpowers that had “for years wantonly plundered the offshore resources of developing coastal states” (Haryo Budi Nugrobo, July 20, 2016).
That was then. Today, China is a global superpower—economically, politically and militarily—and with such status comes a new perspective: China now claims historic rights to the South China Sea whether or not this goes against the interests of the smaller, developing coastal states such as, for example, the Philippines.
The Spratly Islands—Nansha Islands to the Chinese—are located in the South China Sea and thus supposedly are ‘owned’ by China. However, the tiny islands, rocks and low-tide features that comprise the Spratlys are actually much nearer to the Philippines than to China. For example, Mischief Reef (Panganiban Reef), that China turned into an artificial island with military installations, is located 125.4 nautical miles from Palawan. The distance to China is 598.1 nautical miles.
Pagasa Island (known internationally as Thitu Island), on the other hand, is located 227.4 and 502.1 nautical miles from Palawan and China, respectively. Pagasa is claimed by the Philippines but this claim, like other claims in the Spratly archipelago, remains disputed. The Permanent Court of Arbitration at The Hague did not side with any claimant-state as to ‘ownership’ of islands and features in the Spratly archipelago. The Asia Maritime Transparency Initiative confirmed the presence of the Chinese ships reported by party-list congressman Gary Alejano on August 15 while pointing out that it is “important to note that ownership of the territorial waters in which these ships are operating is still legally disputed.”
“As a legal matter, the Philippines also claims Sandy Cay,” explains Julian Ku of Hofstra University (in an August 25 article in Quartz). Ku sees China’s “occupation” of Sandy Cay as testing the Philippines’ response to a possible change to the status quo in the area. Curiously, the Philippines argued before the tribunal that Sandy Cay no longer exists but this was refuted by the tribunal. It declared Sandy Cay a high-tide feature “even if the presence of Sandy Cay over time is intermittent” (page 166 of the July 12, 2017 arbitral award).
So, while Sandy Cay isn’t – legally – Philippine territory, neither is it simply a sandbar. The tribunal ruled that “Subi Reef lies within 12 nautical miles of the high-tide feature of Sandy Cay”. Thus, Sandy Cay generates territorial sea within which we have Subi Reef: a low-tide elevation in its original form that China has reclaimed and equipped with military installations. This is what worries Supreme Court Senior Associate Justice Antonio Carpio.
Curiously, the Chinese fishing vessels at Sandy Cay were actively engaged in fishing at a time when China’s unilateral fishing ban in the South China Sea was still in effect. China has since 1995 been imposing an annual fishing ban in its territorial seas and in the South China Sea. This year, the ban lasted three months—the longest ever—and ended on August 15, or a few days after the vessels were first seen fishing in Sandy Cay’s and Pagasa’s territorial waters. “A prolonged off-season will give the ocean more time to recover,” an official of China’s Bureau of Fisheries told the China Daily. This is one thing that experts can agree on: The South China Sea needs a respite from overfishing. So a fishing ban in itself is not a bad thing except that it is unilaterally imposed by China. Was the Spratly Islands exempted from the ban which, according to a June 9 Voice of America report, was “extra strict” this year?
Whatever the purpose of China’s sending vessels to Sandy Cay and the vicinity of Pagasa Island, the Philippine government was and is unlikely to make an issue of it considering the ongoing negotiations with China for a joint development of natural gas fields at Reed Bank. Reed Bank is well within the Philippines’ exclusive economic zone but China has made it clear that it will not tolerate ‘unilateral’ exploration activities by the Philippines. PXP Energy Corp. which owns 77.5 percent of Forum Energy, which again holds the controlling interest in Service Contract 72 (Reed Bank exploration concession), has been in talks with “counterparts in China,” according to PXP chairman Manuel V. Pangilinan. This is in anticipation of the Department of Energy’s lifting of the suspension of Forum Energy’s activities in the Reed Bank (Business World, August 16). The Malampaya natural gas field is fast entering the end of its production cycle. Is a new chapter in the evolving story of the South China Sea about to begin?