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‘PH can’t have its Kalayaan Island Group’ – arbitral tribunal

Second part of a series
IN the second case* where we shot ourselves in the foot in the arbitration case against China brought by President Benigno Aquino 3rd and his Foreign secretary Albert del Rosario, the tribunal in effect ruled that we can’t have our Kalayaan Island Group (KIG), since this would violate provisions of the United Nations Convention of the Law of the Sea (Unclos).

The episode would be really hilarious if not for its very serious impact on our Republic’s territory. The bungling duo thought they could force China out of our exclusive economic zone (EEZ) by filing the arbitration case, invoking the Unclos. Instead, one consequence is that if we comply with the arbitral ruling, we’d have to give up our KIG. And we are the only ones who have to comply with it, as China refused to recognize the tribunal, and its ruling doesn’t apply to any other nation.

The KIG is the only addition to our territory since the 1898 Treaty of Paris (by which Spain sold us to the US) established the archipelago’s boundaries. It was Marcos, through his Presidential Decree (PD) 1596 in 1978, who annexed a hexagonal territory covering most of the Spratly islands — which China and Vietnam had claimed several decades earlier. Other than Bajo de Masinloc, the KIG is the only thing really that has involved us in the South China Sea territorial dispute.

In his decree, Marcos claimed these areas “do not legally belong to any state or nation but, by reason of history, indispensable need, and effective occupation and control, established in accordance with international law, such areas must now be deemed to belong and subject to the sovereignty of the Philippines.”

He ordered the KIG to become a municipality of Palawan Island. Republic Act 2009, or the so-called “Baselines Law,” declared that the Philippines “exercises sovereignty and jurisdiction” over the KIG, and described it as a “regime of islands,” consistent with Article 121 of the Unclos.

The US and many other nations, however, have not officially recognized the KIG as part of Philippine territory, since China, Vietnam, and Taiwan and Malaysia in part, also claim it. China and Vietnam had passed laws categorically claiming it as part of their territories, small archipelagos, Nánshā Qúndǎo for the former and Quần đảo Trường Sa for the latter. Malaysia occupied an island and several reefs on the ground that these were within its EEZ.

One provision in the arbitral tribunal’s ruling drastically weakens our — and those of China and Vietnam’s — claim to the KIG as part of our territory.

Paragraph 574 of the arbitral ruling pointed out that “the Philippines could not declare archipelagic baselines surrounding the Spratly Islands.” It explained: “Article 47 of the Convention limits the use of archipelagic baselines to circumstances where ‘within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.” And paragraph 599: “The ratio of water to land in the Spratly Islands would greatly exceed 9:1 under any conceivable system of baselines.” Indeed, 98 percent of the Spratlys is made up of water.

The tribunal pointed this out in the course of its discussion to reject one of China’s arguments in rejecting the arbitration, that it has sovereignty over the Nansha Island (sic) group, considered a whole, which it defined as an area nearly exactly in the way Marcos’ PD 1596 did, i.e., as a territory covering both waters and geological features. For the tribunal, a nation can only claim sovereignty over individual islands and reefs, not the entire area that contains those islands and reefs — which the KIG is.

Five of the reefs in the Spratlys occupied by China, but which we claim we own, aren’t within our EEZ, but are part of the KIG: Fiery Cross (Kagitingan), Subi (Zamora), McKeenan, Johnson (Mabini) and Cuarteron (Calderon). The tribunal ruling means that we should stop claiming this, as the KIG has no legal basis.

The hexagon that is the the Kalayaan Island Group (from Namria map).

This is another ruling of the tribunal aimed at reducing as much as possible the territorial seas and EEZs of nations occupying features in the Spratlys, and increasing its international waters.

The other, as I discussed in my column last Monday, was its ruling that no feature in the Spratlys (even the biggest island Taiwan’s Taiping and the second biggest our Pag-asa) is entitled to a 200-nautical mile EEZ, and that submerged features aren’t even entitled to a 12-nautical mile territorial sea. Even the artificial islands China built on reefs aren’t entitled to an EEZ and a territorial sea.

Such vast international waters is exactly what the US warships need, so they won’t need permission to enter territorial seas and EEZs.

We probably didn’t unintentionally shoot ourselves in the foot in filing the arbitration case. The Washington-based firm Foley Hoag, which handled the case — our solicitor general and his lawyers were really just office boys in this case — knew exactly what they were doing, who they really were working for.

The suit didn’t, and won’t, help us in our territorial dispute over the Spratlys with China, Vietnam, Taiwan and Malaysia. It wasn’t intended to do that anyway. It was intended to demonize China and expand the US’ freedom of navigation area for its warships’ patrols in the South China, so it could continue to project its power in restricting the emerging superpower in the region. Aquino and del Rosario were simply the Americans’ stooges.

*See my column last Monday, “Arbitral award vs China: We shot ourselves in the foot” (Manila Times, Sept. 2, 2019).




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