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Brainstorm: The Next Generation | The South China Sea Arbitration in Short

Sovereignty, Territory, Features, Islands And Rocks: The South China Sea Arbitration

With the debacle over the Recto Reef Incident, many people have been mixing up the use of the terms “sovereignty”, “territory” and the Exclusive Economic Zone (EEZ) in relation to the conflicts between the Philippines and China in the West Philippine Sea and, particularly, in invoking the 2016 Arbitral Award so maybe some clarifications are in order on some salient features of the said award.

Some people may find it surprising that the Philippines itself INSISTED that the submissions filed against China with the Permanent Court of Arbitration (PCA) in The Hague, Netherlands DID NOT involve the issues of SOVEREIGNTY or TERRITORY but purely on the interpretation and application of the United Nations Convention on the Law of the Sea (UNCLOS) and the determination of whether or not China violated the provisions of the said Convention by reason of its actions.

In addition to other grounds, China refused to participate in the said arbitration proceedings, and, later on, rejected the Arbitral Award as void, primarily by arguing that the PCA had no jurisdiction over the issues since the arbitration involved issues of territory, sovereignty and maritime boundaries.

This is because disputes about territory and sovereignty would bring the matter OUTSIDE the coverage of UNCLOS and, thus, OUTSIDE the compulsory jurisdiction of the tribunal. In fact, the PCA ruled, in part, that it had the authority and jurisdiction to proceed with the arbitration because it DID NOT relate to issues of territorial sovereignty.

It was ironic that another one of the reasons cited by the PCA in assuming jurisdiction, were China’s own public declarations that its activities in the West Philippine Sea were civilian and not military in nature because, “military activities” are also beyond the coverage of UNCLOS and thus, outside the jurisdiction of the PCA. China dropped the ball on that one, although it was always highly unlikely that China would ever admit that its activities had a military character. In a sense, on this point, China gave itself too much rope to hang itself with.

The irony of it all, considering all this, is that WE, as a nation, MUST be careful not invoke the Arbitral Award in claiming territorial sovereignty over the disputed areas. If we do so, we will just be reinforcing China’s arguments in refusing to recognize the award in our favor. We should be VERY CLEAR that we are claiming and enforcing sovereign rights over our EEZ as well as traditional fishing rights based on the said award.

A rough analogy would be to say that it is like the difference between saying “DO NOT ENTER MY HOUSE!” as against “DO NOT BLOCK OR PARK ON MY ROAD!”

So, considering that China refused to participate in the process and even rejected the result of the arbitration, what exactly did we win then? Despite these facts, it was still a VERY IMPORTANT VICTORY for us.

Stated in fine, the Arbitral Award affirmed our Exclusive Economic Zone and found that China was in the wrong insofar as its activities within our EEZ, particularly by interfering with Philippine fishing and petroleum exploration, constructing artificial islands and failing to prevent Chinese fishermen from fishing in the zone. These and other activities were found to have been in breach of specific provisions of the UNCLOS. On Scarborough Shoal, in particular, the award affirmed that both Filipino, as well as Chinese, fishermen had traditional fishing rights there and, by restricting access to the seas around it, China unlawfully interfered with our fishermen’s rights.

Equally important, the award also negated China’s claims of historical rights to the resources within the sea areas falling within China’s so-called “9-dash” line. Incidentally, it is called the “9-dash” (sometimes 10 or even 11- dash) line because it is a demarcation line on Chinese maps composed of nine (9) to eleven (11) dashes showing the extent of the area being claimed by China, which is nearly the entirety of the South China Sea.

Likewise, the award also found that the “features”, or, roughly, land areas like Scarborough Shoal and Itu Aba (Taiping Island) that are claimed, and/or occupied, by China cannot be the basis to claim an Exclusive Economic Zone and continental shelf, as these are not classified as islands but only as “rocks” because these “cannot sustain human habitation or economic life of their own”. So, you see, it is very important to know if a “feature” is an island or a rock. Who would have thought that?

What is MOST important about the Arbitral Award is the fact that it is essentially the VOICE of the international community, as pronounced by an internationally recognized authority and which, by the provisions of the UNCLOS, to which China is a signatory, is final, binding and without appeal. Thus, even if China has rejected the award, it must still contend with the fact that the award has the support of the community of nations.

The reality is that our country is like a kid playing in his sandbox trying to enjoy himself, when the really big teenager from next door suddenly tries to go into the sandbox and kick the sand, as well as the kid, around. The brave kid can try to protect himself, as well as call on the other kids from the street and other teeners from the block and point the bully out. Hopefully, the bully will stop and help clean up the mess he made and not make an even bigger mess.

This is what the Philippines can capitalize on in dealing with China particularly with regards its intrusions into our Exclusive Economic Zone. On this, we can especially expect, as well as cultivate, the immediate support of other similarly situated countries like Vietnam, Malaysia and Indonesia despite our own smaller disputes with these nations. We must not forget “VIETNAM, PHILIPPINES, FRIENDS!”

(Credits: The author relied heavily on the 11 page Press Release of the PCA on the South China Sea Arbitration which readers can read for a more detailed summary of the award unless they want to go over the 501 page actual award both of which can be found on https://pca-cpa.org)

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