Aquino-Del Rosario betrayed our national interest in arbitration suit vs China

FORMER President Aquino, his foreign secretary Albert del Rosario, and his Solicitor General Florin Hilbay patently betrayed our national interest in the arbitration suit they filed against China:

They asked the tribunal to degrade our islands in the Kalayaan Island Group, especially our Pag-Asa Island — the second biggest in the disputed area — to mere “rocks,” telling the arbitral tribunal that, as such, these therefore do not generate a 430,000-square kilometer (sq km) circular exclusive economic zone (EEZ).

The tribunal, of course, upheld their allegation. Why wouldn’t they when it is the representatives themselves who claim their islands are not islands but just rocks? Their allegation in effect lost us at least 430,000 sq km of potential EEZ, an area bigger than the Philippines’ 300,000 sq km land area.

Potential EEZ of Pag-Asa (roughly that of Taiwan’s Taiping island) the suit gave up. Source: Author’s graphics using GoogleEarth.

Since the United Nations Convention on the Law of the Sea (Unclos) became effective in 1994, no nation has had representatives as stupid or just totally servile to US interests (why, I will show below) as Aquino and del Rosario as to have claimed any of their islands no matter how tiny, not to be islands, and therefore not entitled to an EEZ. While the convention indeed had defined an island as a feature above water at high tide, and capable of sustaining human habitation or economic life, this definition had never been invoked in actual situations — until the arbitral tribunal did in the case of the features occupied by China and the Philippines in the Spratly Islands.

Japan therefore has continued to claim that its coral reef, Okinotorishima — originally just 9 sq m, smaller than a dining room, but made larger in the past few years — is an island, and therefore has an EEZ, marked as such in that country’s official maps.

The exclusive economic zone of Japan’s tiny Okinotori-shima (inset). JAPAN TIMES

Taiwan was outraged, and declared that it doesn’t recognize the arbitral ruling, as it reduced Taiping, the biggest island (46 hectares) in the Spratlys with an airport and resort hotel, to a rock, and does not have an EEZ

US exclusive economic zones (circled with fish icons) in the Pacific. US OFFICE OF COAST SURVEY

Even if it did not ratify the Unclos (which “created” the EEZs), even the US claims that its microscopic Pacific atolls — Johnson Atoll, Jarvis Island and Palmyra and Kingman Reef — all have 370- kilometer EEZs which, combined, have an area a third of the South China Sea. That cleverly covers a third of the Pacific within American EEZs. Even France has a 430,000 sq km circular EEZ off the coast of Mexico, radiating from a 6 sq km uninhabited coral reef Île de Clipperton.

In stark contrast, Aquino and del Rosario’s lawyers claimed that our Pag-asa Island (37 has in size), Likas (19 has), and Parola (13 has) are not islands but just rocks, and cannot generate EEZs. Where in the world can you see such representatives of the nation do that?

Reading the Aquino’s lawyers’ presentation (called the “Memorial”) to the tribunal and the transcripts of the oral arguments, I was shocked at how they even disclosed details about them which should have been confidential, referring to them using US nomenclature (Thitu for Pag-asa), as if they were not attorneys representing the Philippines.

The memorial read: “The local population on Thitu, transplanted there and maintained by the Philippine government since 2001, keeps a few animals and grows some vegetables, which is possible only because soil is continually brought from Palawan. The amount of food produced is not enough to sustain even this small community, and supplies are shipped from the mainland by a naval vessel once a month. The Philippines maintains military and civilian administrative personnel on Thitu, also supplied from outside.”

The lead counsel Paul Reichler of the Washington law firm Foley Hoag LLP in the oral arguments said in effect, announcing to the world that the Philippines was merely putting up a show to make Pag-asa look like an island:

“Everyone on Thitu has been transplanted from the Philippine mainland. Human habitation is not naturally sustainable there. Without regular supplies of essentials from Palawan or other major Philippine islands, it would disappear. The conditions are even harsher at much smaller West York Island, which is a sandy cay with more coconut trees than human beings. Only seven Philippine military personnel are stationed there. There are no civilians. All supplies are brought in from outside.”

Worse really is that Aquino-del Rosario through their lawyers lied to the tribunal, and misrepresented the Philippines when they claimed: “The Philippines…claims only a 12 M territorial sea from it. The Philippines considers the feature a ‘rock’ governed by Article 121(3).”

The Philippines has not officially declared after Unclos took effect in 1994, whether Pag-Asa island and the other islands in the Spratys generate a 430 sq km EEZ. The Aquino-del Rosario suit has in effect deprived, forever as it were, our government — without consulting with Congress — the right to do so: The tribunal’s ruling is final and cannot be appealed.

Guess what, since China opted out of the arbitration, and since it is an arbitration between two parties, only the Philippines is bound by its ruling that our islands in the Spratlys are not entitled to EEZs. Japan Taiwan, the US, Vietnam all retain their claimed EEZs around reefs and atolls, much smaller than our Pag-asa, Likas and Parola.

The suit’s declaration that none of our islands generate the 430 sq km EEZ was made in its argument that the only existing entitlement covering two features occupied by the Chinese in the Spratly Iislands — Mischief Reef and Second Thomas Shoal — is the EEZ generated from the baselines along Palawan island.

The two, the Philippines asserted, are “low-tide” elevations which become submerged at high tide. They therefore cannot be subject to a sovereign claim, only to sovereign rights through the EEZ that covers them — and in this case it is only the Philippines EEZ that does.

Why on earth did the Aquino-del Rosario lawyers have to claim that our Pag-asa and Likas Islands are not islands but just “rock”?

Because one main goal of the arbitration suit was for the tribunal to rule that Taiwan’s Taiping Island (Itu Aba) does not generate an EEZ. And Itu Aba and Thitu (Pag-asa) are almost similar in size, 46 has. and 37 has, respectively, with similar histories and features like an airstrip and with military personnel. This bolsters my suspicion that Aquino-del Rosario’s American lawyers were really working for another nation, not ours: They didn’t care if our islands were deprived of their EEZs with their arguments as long as Taiwan’s Taiping island and the China-occupied reefs in the Spratlys were declared by the tribunal as mere rocks.

But why did the Philippine suit want the tribunal to rule that Taiwan’s Taiping (Itu Aba) does not generate an EEZ?

Because even if it is a rogue territory of China at present, Taiwan in the future could conceivably be part again of that emerging superpower that challenges American hegemony in the region. Taiping is at the center of the Spratlys, and its EEZ would cover most of it.

Indeed, in a book obviously funded by del Rosario’s gang, the author unwittingly revealed: “After they received the tribunal’s ruling, one of the first questions Supreme Court Justice Antonio Carpio asked was how the tribunal ruled on Itu Aba. When he learned that it was also declared just a ‘rock,’ the usually phlegmatic Caprio was ecstatic. Del Rosario’s face shone with happiness…”

That disclosure reveals the real goal of the arbitration suit. Why is Taiwan’s Taiping Carpio’s main interest?

Taiping’s EEZ practically encloses almost all of the southern part of the South China Sea, drastically reducing the international waters there, and within the sovereign rights of an entity that could be integrated into, or even just became an ally of China. Indeed, there already was talk of Taiwan agreeing to be integrated into China, but retain its autonomy like Hong Kong, with Beijing’s authority only over foreign policy and defense.

Taiwan’s losing its EEZ opens up America’s euphemistically termed “freedom of navigation operations” there, which is in reality intended to continue to project its power in an area where a new superpower, China, is emerging. Even if Taiwan and Vietnam reject the tribunal’s ruling, US navy lawyers can at least point to it as a basis for American warships’ Freedom of Navigation Operations.

But perhaps we shouldn’t be too harsh towards Aquino and del Rosario. Most probably they didn’t even know what the American lawyers were presenting to the tribunal. I bet that they hadn’t even read the 300-page “Memorial,” or pleading to the tribunal, that betrayed our country’s interests. After all, both aren’t known to be readers.

 

 


 

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