[This is a continuation of the article that appeared in this column yesterday titled "The issue of sovereignty in PH-China dispute over the WPS”]
ON May 7, 2009, China issued a note verbale to Secretary General Ban Ki-moon, of the United Nations, which, in sum, sought to dismiss the Submission by Vietnam to the Commission on the Limits of the Continental Shelf regarding Vietnamese claim of certain portions of the South China Sea.
Calling the Vietnam Submission as an infringement on Chinese sovereign rights, China asserted in the note verbale: “China has indisputable sovereignty over the islands in the South China Sea, and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map). The above position is consistently held by the Chinese government, and is widely known by the international community.”
Following is a copy of the attached map being referred to:
The so-called “nine-dash-line” is indicated in the map as a series of three dashes with dots in-between the three and shows the enormous expanse of waters encompassed by the line along with the islands and reefs therein. According to the PCA Award on Jurisdiction and Admissibility, the area, which is practically the whole of the South China Sea, consists of some 3.5 million square kilometers.
Indicated within the line are the two main island groups over which the Philippines has its claims under arbitration by the PCA, the Nansha Qundao, otherwise known as the Spratlys, and the Zhongsha Qundao, of which the Scarborough Shoal is part.
Invoking its so-called historic rights over the South China Sea, China has embarked on massive reclamation developments over the contested waters, turning reefs and submerged banks into islands, which can function as airfields and naval encampments.
For specifics, here are Chinese occupational activities on islets, reefs or rock formations in the South China Sea which, as early as January last year, had particularly alarmed the then-outgoing US Navy Pacific Fleet intelligence chief Captain James E. Fannel, who disclosed the following:
• Mabini Reef (also known as Johnson South Reef) – a three-story concrete building ringed with gun emplacements and a helipad; feared capable of being converted into a military base.
• Mischief Reef – a three-story concrete building ringed with five octagonal concrete structures. It has searchlights and radar.
• Cuarteron Reef – a permanent reef fortress, supply platforms, and naval and anti-aircraft guns. An airstrip is reportedly being planned.
• Fiery Cross Reef – a marine observation station designated in 2011 as “main command headquarters” equipped with surface and air search radars and armed with at least four high-powered naval guns.
• Gaven Reef – a permanent reef fortress, supply platforms and harbor for navy patrol boats.
• Subi Reef – a permanent reef fortress and supply platforms that can house troops, has a helipad and is armed with four twin-barrel 37mm naval guns. Also houses a Doppler weather radar.
It is quite evident from the descriptions of the enumerated activities that they are actually meant to serve military purposes. China has denied this, clearly in an effort to deprive the PCA the rationale to interfere in the dispute. Still at the outbreak of the Scarborough Shoal standoff, it virtually threw caution to the wind when it stood pat on maintaining a naval gunship in securing the area from Filipino advances. What else is such a stand but military?
The Scarborough Shoal standoff could have actually foretold of things to come. It signaled China’s resolve to hold on to its gains so far in the conflict. The arbitration at the PCA can only amount to an extension of the standoff, whereby in a seemingly peaceful undertaking, avenues are sought by way of avoiding military confrontation.
For instance, meticulous attention is being given by the arbitral body to determining whether the maritime features being contended for are islands or low-tide elevations. If those are islands, then they could be adjudged as capable of generating water entitlements and exclusive economic zone for whosoever is the occupant. But if, in the reckoning of the PCA judges, those are submerged banks that get revealed only at low tide, then they form part of the Philippine continental shelf and can be considered within Philippine waters so long as they don’t extend beyond the UNCLOS-allowed 200-nautical-mile exclusive economic zone.
The assumption, of course, in this regard is that it is PCA’s execution of a graceful way out for China from the impasse. In other words, China is being reckoned here as willing to abide by the PCA’s decision. Is it?
China did submit one manifestation at the start of the arbitration, but it did so only for the purpose of clarifying its position on the conflict. After that it made it clear that it was not recognizing the proceedings.
China insisted from the commencement of the arbitration that sovereignty is at issue in the case, so that the PCA, as China made it clear years back, has no power to delimit maritime boundaries; such power would not be part of UNCLOS functions China agreed to.
It would be much unlikely, therefore, to expect that China would agree to a ruling that many of the reefs it has occupied and has undertaken much military buildup on already are not islands and, therefore, cannot generate entitlements and exclusive economic zone for it.
From consideration of the physical aspects of those contested reefs, it would seem the Philippines will win the case to the extent allowed by UNCLOS. But considering the intransigent position of China that those contested reefs are part of its historical sovereignty, the Philippines may have to be prepared for a highly escalated conflict.
China has aces up its sleeves for this eventuality. Enforcement of a PCA ruling on the case favorable to the Philippines will have to be undertaken by the United Nations. But as permanent member of the UN Security Council, China has the veto power. Why won’t it veto a verdict that bangs its head?