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Arbitral award vs China: We shot ourselves in the foot

First of a series on the Aquino-Del Rosario foreign policy fiasco
MORE precisely, not really “us” but former President Benigno Aquino 3rd and his incompetent foreign secretary Albert del Rosario who shot our Republic in the foot by filing in 2013 the arbitration case against China, invoking the UN Convention on the Law of the Sea (Unclos).

They didn’t even consult Congress or any other body for this very important foreign-policy move.

If not for President Duterte’s bold move to put the brakes on it, it would have resulted, and I am not exaggerating, in an economic disaster for us — to the advantage of our neighbors like Vietnam, which also have territorial disputes with China, but weren’t as stupid as filing such a case against Beijing and adopting an anti-China foreign-policy stance.

It is another testament to the tremendous power of US media in molding our people’s minds that the arbitration has been projected as a “victory,” exploiting the embers of anti-China xenophobia here. It is part of a huge propaganda machine to portray China as the evil empire in our region (which I will discuss fully in this series), which is a major component of the American “Pivot to Asia” policy that President Obama started in 2011.

It obviously also takes advantage of the “my-country-right-or-wrong” thinking of small, or lazy minds. Indeed, there is much truth in that adage, “Patriotism is the refuge of the scoundrel.”

But we cannot undertake a correct and realistic foreign policy based on massive misinformation on such a crucial issue as our territorial dispute with China.

I promise to publish unedited in this space the arguments that I hope del Rosario, or any of his ghost writers and highly paid academic mercenaries, will present to disprove the points in this piece.

Core claims
One of the three “core” claims made by the Philippines in its arbitration case was that our Bajo de Masinloc Island (Scarborough Shoal) and the seven reefs in the Spratly Island Group occupied by China are not “islands” and therefore under the United Nations Convention on the Law of the Sea do not have the 200-nautical mile exclusive economic zone entitlement.

Arbitration panel said they aren’t islands, just rocks: Our Pag-asa Island, left; right, Taiwan’s Taiping. Photo from Asian Maritime Transparency Initiative

The intention of such a claim was that this would invalidate China’s occupation and ownership of these areas, first since Scarborough Shoal, just 130 nautical miles from our mainland, is clearly within our exclusive economic zone (EEZ). Two of the Spratly reefs held by China (Mischief Reef and Second Thomas Shoal) are within our EEZ and within our Kalayaan Island Group (KIG), which Marcos declared as part of our sovereign territory under his Presidential Decree 1591 of 1978. Five reefs aren’t within our EEZ, but are within the KIG: Fiery Cross, Subi, McKeenan, Johnson and Cuarteron.

The tribunal did uphold the claim that the Chinese-occupied reefs are “low-tide elevations,” and within the Unclos definition do not generate entitlements to a territorial zones and EEZs. The only valid EEZ covering two of these reefs –Mischief Reef and Second Thomas Shoal — are those of the Philippines.

This of course, made the Yellows, and their propagandist Supreme Court Justice Antonio Carpio ecstatic and jumping all around the country, demanding that the Duterte administration enforce the award or, as del Rosario had the gall to say the other day, he would be betraying the public trust.­­­

For one thing, a crucial point which all of the Yellow writers and even former chief justice Artemio Panganiban have been missing is that the tribunal was totally silent — as it should be — on China’s territorial claims (as opposed to maritime entitlements, such as EEZs), over the Spratlys which it calls the Nansha Island, made not because of just some medieval era maps, but on the basis of declarations made before World War 2, as well as in its 1950 and 1992 laws. (Our claim on the other hand was made in 1978 by a Marcos decree.)

More importantly for this discussion, the Yellows have been absolutely quiet over the arbitral tribunal’s ruling made in connection with the Philippines’ “submission” regarding reefs occupied by China (“Dispotif,” paragraph 1203, section B (7):

“a. That 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;

b. that none of the high-tide features in the Spratly Islands generate entitlements to an exclusive economic zone or continental shelf.”

This means that the tribunal ruled that none of our eight islands in our Kalayaan Island Group — the largest of which, Pag-Asa, have bunkers, semi-permanent residents, and an airstrip — are islands, but are mere “rocks” and do not generate a territorial sea nor an EEZ.

If we are to comply with the tribunal’s ruling to the letter, we have to rename what we have called islands since 1978, as “rocks.” How can a “group of rocks” constitute a municipality of Palawan?

Islands under Unclos are entitled to a 200-nautical mile 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 — the second biggest feature in the Spratlys — 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 to half of the area covered by the KIG.

It gets worse.

The tribunal’s ruling also means Vietnam’s six islands are not islands; Taiwan’s Taiping Island (the biggest in the Spratlys, with an airport that can accommodate even C-130s, and a tourist hotel) is not an island, and Malaysia’s Layang-layang island (a world-class dive resort) is not an island.

But guess what? The tribunal’s ruling applies only to us, as it wasn’t a court but merely an arbitration panel, the ruling of which applies only to the parties involved in the arbitration. (But the other party, China, had refused to join the arbitration.)

The ruling therefore doesn’t apply to Vietnam’s six islands, and those of Taiwan and Malaysia. They can argue in the future that these islands have a 200-nautical mile EEZ, and that the panel of experts the tribunal contracted to decide what is a rock and what isn’t was wrong.

The ruling applies only to us. The Filipino idiom to such colossal stupidity is more vivid: Kumuha sila ng bato at pinukol sa sariling ulo.

Legal shield
It is as if one landowner brought a case to an arbitration court, to claim that another party has no legitimate claim to an adjacent land he occupies. The arbitration panel upholds his claim, but also rules that the title to his land is just title to a community-held lot he is legally merely overseeing.

The ruling though adds to the legal shield needed by one superpower that wants to maintain its hegemony over the South China Sea and Asia: the US. It can claim that the tribunal ruled that none of the occupants of the Spratlys — especially China, of course — can claim a 200-EEZ nor even a 12-nautical mile territory. If they were allowed to do so, their EEZs would occupy most of the South China Sea, requiring that US warships would need to ask permission to enter. That would practically leave very little international waters in the South China Sea, restricting US warships’ movement.

But that isn’t really the main impact of the arbitration ruling. It is mainly a US-planned, sophisticated and massive propaganda operation to portray that China is an aggressive superpower in Asia (which therefore needs the US to counter it), which absolutely has no valid claims in the South China Sea.

The propaganda operation has indeed been so successful. Imagine, one of our highest ranking diplomats — our ambassador to the US Jose Manuel “Babe” Romualdez — wrote, in a breach of diplomatic protocol, in his Philippine Star column what is nearly word for word the US messaging in the arbitration plot: “The Philippines obtained a favorable ruling over a maritime dispute from the UN tribunal which invalidated the sweeping claims of China (premised on its nine-dash line… covering some 90 percent of the disputed waters), saying the giant nation had no legal basis to claim historic rights over the South China Sea.”

Duterte should remove Romualdez as a diplomat — by definition his alter ego in the US — for undermining his foreign policy towards China, acting not as an ambassador to the US, but as the US government’s spokesman, and an ignorant one to boot. First, it wasn’t a UN tribunal that made a ruling. The arbitral panel had no connection whatever to the United Nations. See my long piece on this: “Fake news? No such ‘PCA decision’ on suit vs China.”

Second, the tribunal indeed ruled that China’s “nine-dash line” has no validity within Unclos provisions. But Romualdez did not explain — or perhaps it was beyond his comprehension — that China’s claims in the South China are not entirely based on the nine-dash line which the Kuomintang Party first drew on China’s maps. China can just junk that nine-dash line nonsense and still have arguable claims for its sovereignty over the Spratlys.

This issue will be discussed in detail in subsequent instalments of this series.




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