By Satur C. Ocampo
At Ground Level | The Philippine Star
Our dispute with China over its claims on certain islets, reefs and shoals in the South China/West Philippine Sea may not be resolved soon.
Of late, China’s aggressive unilateral acts have been making news – it has been frenetically undertaking land reclamations and construction in some of the contested maritime areas. This has spurred, besides protests from all the aggrieved contending parties including the Philippines, ominous military reaction by the United States.
Specifically, satellite images taken in March show that China has done reclamation on Subi Reef, constructed an airstrip and harbor and various facilities on the new island. More recent images on Mischief Reef (135 miles off Palawan, which China occupied much earlier) show heavy equipment dredging sand from the seabed and building another island on it. The Philippines has protested these unilateral actions and accused China of destroying 300 acres of coral reefs, causing “irreparable and widespread damage to the biodiversity and ecological balance” of the area.
Thus we who are outraged ought to exercise utmost judiciousness and urge the Aquino government to do the same so as not to prejudice what it has done right on the matter thus far.
It was diplomatically prudent and legally correct that the Department of Foreign Affairs filed in March 2013 a case against China at the International Tribunal on the Law of the Sea. The ITLOS has referred the case for hearing by its Arbitral Tribunal in The Hague. The DFA has already submitted two memorials (documentary evidence and written arguments) and is preparing for the oral arguments in July.
(It should be noted that the DFA filed the case only after failing to get US assurance of military support – by invoking the 1951 Mutual Defense Treaty – in the event of a confrontation with China. The US has averred that the treaty doesn’t apply in the case of our maritime sovereignty claims in the West Philippine Sea.)
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In seeking recourse through the ITLOS, the Philippines stands on just ground. The provisions of the United Nations Convention on the Law of the Sea, specifically with respect to the 200-nautical mile exclusive economic zone (EEZ) upon which we mainly base our sovereignty claims, are clearly in our favor.
China has refused to participate in the arbitration process (and it can’t be compelled to do so). It claims that the contested areas do not fall under ITLOS jurisdiction, as they are sovereign “Chinese territory” within its “9-dash line” map that covers 90 percent of the disputed area. (China drew the map in 1947 but submitted it to the UN Secretary General only in 2009. No other country has recognized its validity under the UNCLOS.)
However, China cannot forever evade facing up to the issues raised because it is a signatory to the UNCLOS, from which the ITLOS derives its authority and jurisdiction.
Briefly, here’s the core of the Philippine case:
According to Supreme Court Justice Antonio Carpio, who has publicly presented a scholarly legal study on the issue, the case involves a purely maritime, not territorial, dispute. (Territorial disputes require the two sides’ consent to resolve.) Carpio questions and opposes China’s claim that the “9-dash line” negates the Philippine exclusive economic zone guaranteed under UNCLOS.
The Philippines also urges the tribunal to rule on two other issues: 1) whether rocks above water at high tide, such as Scarborough/Panatag Shoal (now occupied by Chinese ships), generate a 200-nautical mile EEZ or only a 12-nautical mile territorial sea; and 2) whether China can appropriate for itself low-tide elevations, such as Mischief Reef and Subi Reef, which are within the Philippines’ EEZ.
Whatever ruling it may hand down after the oral arguments, the Arbitration Tribunal cannot alone enforce it. Nonetheless, a favorable ruling can elicit wide international support for the Philippine case and generate moral pressure on China to yield. Also it can gain considerable leverage for the Philippines should there be bilateral negotiations, which China has persistently insisted is its preferred way.
Avowing to uphold the rule of law, the Aquino government can best serve the national interest by assiduously pursuing this course of action.
Sadly the DFA recently took a foolhardy turn.
On television, Foreign Affairs Secretary Albert del Rosario welcomed with alacrity new Defense Secretary Ashton Carter’s announcement that the US intends to deploy in the Philippines “various advanced air force, naval, and maritime-domain equipment” in reaction to China’s using its “sheer size and muscle” to elbow smaller nations aside in the South China/West Philippine Sea, as President Obama had charged.
As usual the DFA had no foreknowledge of the publicly announced American plan.
“This is the first time we are hearing about it. We have not engaged in discussion so we will find out more about what these plans involve,” del Rosario said. In two weeks, he added, he would travel to the US hoping to meet with Carter, State Secretary John Kerry, and some US legislators.
Note this: The equipment, which may include weapons, would be manned not by Filipinos but by US personnel. Ergo, “it will require US presence,” del Rosario conceded. Up to what extent he couldn’t say. Under the EDCA (Enhanced Defense Cooperation Agreement) — should the Supreme Court uphold the “executive agreement’s” questioned constitutionality — that would practically mean restoring US military bases in the country.
That would throw us back to the conditions that impelled the Senate in 1991 to reject the extension of the amended 1945 RP-US Military Bases agreement, rebuffing President Corazon C. Aquino who was vigorously pushing for it: US military presence derogates our independence and national sovereignty; it also drags us into America’s wars of aggression, as it already has done in its expanding “war on terror.”
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Published in The Philippine Star
April 18, 2015