Pag-asa Island? Oops, arbitration award ruled it’s just a rock

AND you can thank former President Aquino and his astonishingly pro-American Foreign Secretary Albert del Rosario for this, as it was they who got the Republic to file an arbitration suit against China for allegedly violating the law of the sea.

Yes, the award sided with much of the Philippines’ arguments, among them its ruling that China’s claim over much of the seas in the South China Sea (demarcated by the ambiguous nine-dash line) had no basis under the UN Convention on the Law of the Sea (UNCLOS).

What del Rosario and his pro-American boys posing as objective academics do not mention is the following ruling of the Permanent Court of Arbitration on the case:

“None of the high-tide features in the Spratly Islands, in their natural condition, are capable of sustaining human habitation or economic life of their own within the meaning of Article 121(3) of the Convention.”

And Article 121(3) of the Convention categorizes such features as “rocks,” as opposed to “islands.”

Our Pag-Asa Island in the Kalayaan Island Group (KIG), as well as three other features that Marcos had called islands when he annexed the area in 1978 through his Presidential Decree 1596, are all in the Spratly Islands, which therefore under the arbitral award are not islands but rocks.

Islands under UNCLOS are entitled to a 200-nautical mile exclusive economic zone (EEZ). Rocks do not have such a zone, and have only a 12-nautical mile territorial sea.

If there had been no such arbitration ruling, we could have argued that Pag-Asa is an island and therefore entitled to an EEZ. This would have extended our existing EEZ, which as of now is measured from baselines in Palawan, and ends near the KIG.

Talk of the law of unintended consequences. Or perhaps it was the consequence the US strategists wanted.

Just rocks, not islands, according to arbitration award: Pag-Asa Island (left) and Taiwan’s Taiping.
Taiping and Pag-Asa’s EEZ (inside the circle) if they were islands.

Aquino and del Rosario wanted to get the arbitral tribunal to rule that the seven features in the Spratly islands occupied by China were just rocks, and therefore could not have an exclusive economic zone, and could only have a 12- nautical mile territorial sea.

The tribunal agreed with them, which would therefore classify much of the vast area around the Spratlys as international waters. But contrary to their misinformation, the tribunal did not rule what country is the sovereign of any of the Spratly “rocks”. That is beyond its authority of the UNCLOS.

China does not recognize the tribunal and its decision on the ground that it actually ruled on sovereign claims over land, which is beyond the law of the sea.

Still though, the award now gives the US much legal justification—which translates to favorable international public opinion—that its Seventh Fleet’s increased patrols in the South China Sea, which often sail close to Chinese claims, are all within international waters. These are euphemistically called freedom of navigation operations (FONOPs), but are clearly messages that the US is still the military superpower in the region.

The recent swarm of Chinese fishing vessels near Pag-Asa, which President Duterte has protested over, could be the unintended result of the arbitration award.

It is not clear how far from Pag-Asa island the fishing vessels are, if they are within the 12 nautical miles that is the entitlement of a rock according to the arbitral award and within the Philippines’ EEZ as measured from the Palawan baselines, in which case they are indeed violating Philippine territory.

However, if it was the Chinese government that was behind the fishermen, it might have positioned the vessels just outside Pag-Asa’s 12-nautical mile entitlement and the Philippine EEZ, just to taunt the Philippines for filing the suit against China.

My suspicion that the arbitration was a brilliant US machination is bolstered by the fact that it devoted much discussion to its ruling that Taiping Island (Itu Aba), occupied by Taiwan is not an island but just a rock.

The award totally disregarded the reality that Taiping is the biggest island in the Spratlys, and has been so developed over the decades that it is a garrison with an airport that can accommodate even C-130 planes, and a meteorological station.

If Taiping were an island, it would have generated a 200-nautical mile EEZ, which would – if Pag-Asa also had an EEZ – cover a vast area that are not within the EEZs of the littoral states.

The US doesn’t have a problem with Pag-Asa’s EEZ given its influence over the Philippines. But what if Taiwan became part of the People’s Republic of China, which would seem inevitable in the next 50 or even just 25 years?

In the most probable scenario, Taiwan’s integration would be similar to Hong Kong’s. This would mean that it would become an autonomous region with its independence intact except for one aspect: its foreign policy and external defense.

That would mean a huge part of the South China Sea within the PRC’s control as its EEZ, and the US would have to get its permission for its Seventh Fleet to sail through.

The arbitration was a boon not to the Philippines but to the US, which after all planned and executed it. More on that in future columns.

 


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