THE US Navy last week, in its actions and official statements, in effect revealed what was really one of the real aims of the Philippines’ arbitration suit that President Aquino 3rd and his foreign secretary Albert del Rosario brought against China in 2013.
It wasn’t to win back for the Philippines islands or reefs it claims to own in the Spratly islands, which it alleges China grabbed from it. The arbitration was intended — other than to demonize China as an evil aggressor in the South China Sea — to provide the US Navy with additional legal justification to undertake its so-called freedom of navigation operations (Fonops) in the South China Sea, a major part of the American “Pivot to Asia” program started by President Obama in 2011.
The Fonop has been the US’ way of challenging what it thinks are territorial waters and maritime zones that countries have declared but which it thinks are illegal. It does this by having a warship sail into such waters and zones to challenge the claiming countries to enforce what they claim are their sovereign rights – which of course they don’t, faced with the might of the US navy.
On November 18, the littoral combat ship USS Gabrielle Giffords passed by Mischief Reef in the Spratlys, occupied by China on which it has built an artificial island. China as well as the Philippines and Vietnam claim the reef as part of their sovereign territory. China calls the Spratlys its Nánshā Qúndǎo, the Philippines its Kalayaan Island Group, and Vietnam, Quần đảo Trường Sa.
The US ship deliberately sailed within 12 nautical miles of the artificial island, or within its theoretical territorial sea.
While there has been at least a dozen such Fonops in the Spratlys since 2011, what is significant is how the US navy spokesman, Reann Mommsen, justified it this time:
“USS Gabrielle Giffords demonstrated that Mischief Reef, a low-tide elevation in its natural state, is not entitled to a territorial sea under international law. Under international law as reflected in the United Nations Convention on the Law of the Sea (Unclos), features like Mischief Reef that are submerged at high tide in their naturally formed state are not entitled to a territorial sea. The land reclamation efforts, installations and structures built on Mischief Reef do not change this characterization under international law. By engaging in normal operations within 12 nautical miles of Mischief Reef, the United States demonstrated that vessels may lawfully exercise high-seas freedoms in those areas.”
That justification, the language itself, was practically lifted straight from the Hague arbitration tribunal’s July 2016 ruling. While Unclos does contain the provision that an LTE is not entitled to a territorial sea under international law, no country can unilaterally declare any specific feature as such. There has to be an international court or an arbitration agreed upon by the two contending parties for a specific feature to be declared as an LTE.
For example, Japan’s “Okinotorishima,” the size of a bedroom juts out of the sea only because the Japanese built an embankment around it, and it would be a stretch to claim it has an territorial sea and 200-nautical mile exclusive economic zone. Yet Japan does claim it is an island which has a territorial sea and EEZ, which gives it a huge 156,000 sq km of EEZ. Japan even rigorously defends that EEZ, protesting every time a survey ship enters that EEZ. China claims Okinotorishima does not have an EEZ, but Japan simply ignores that claim.
Not only Japan. Almost all the major powers have “rocks,” which they claim have EEZs. The US claims Howland Island, Baker Island and Kingman Reef have EEZs which gives it huge areas in the Pacific where it has sovereign right. Australia has McDonald Island, while France, Clipperton Island. Why should there be double standards, one for the “imperialist powers” and another for China, I can imagine the Chinese to be asking.
The US — even if it didn’t accede to the Unclos — is now claiming that Mischief Reef doesn’t have maritime entitlements because of the PH v. China arbitration ruling that it, together with six other reefs China occupies, are LTEs or rocks, which under Unclos are not entitled to territorial seas and EEZs. In fact, such declaration that specific features are LTEs or rocks is the first time this was done.
But the ruling backfired on the Philippines, as it not only declared that Mischief Reef and other such formations are not entitled to a territorial sea nor an EEZ. What shocked scholars and international law experts is that the tribunal ruled that no feature in the Spratlys was an island, and could not have territorial seas and EEZ.
The tribunal ruled them all to be either LTEs or “rocks.” It meant that features we possess that are obviously islands — Pag-Asa which is the biggest island there, Likas, Parola, Lawak, and Kota — are merely “rocks.” In effect we lost the Kalayaan Group of Islands.
The tragedy here is that it is only the Philippines which agreed to be bound by the arbitration suit, as China refused to participate in it. Only the Philippines will be losing the right to claim EEZs around its islands in the Kalayaaan Group of Islands. Taiwan, whose Taiping island even has an airport was also ruled as a mere “rock,” can and would obviously ignore the arbitration’s ruling since it is not a part of it. Vietnam which has the biggest number of islands, next to us, will ignore it.
However, the ruling is a big boon for the US, which I have argued in several columns brilliantly manipulated Aquino and del Rosario to file the suit. The US even provided its preferred Washington-based law firm to do all the arguing.
The US Navy’s lawyers who have had sleepless nights justifying the Fonops before, can now claim, as it did recently in the case of the Giffords’ recent sailing by Mischief Reef, that the tribunal has ruled that all waters in Spratlys are high seas, not part of any territorial sea claimed by any country, except for the short 500-meter “safety zone” around a “rock.”
That the US Navy’s worries whether or not its ships are complying with international laws in its Fonops was demonstrated when US Defense Secretary Ash Carter wrote in December 2015 to Sen. John McCain, who had asked for an explanation of the legality of such operations. Ash in his letter noted that one problem is that there were “factual ambiguities” in the Spratlys, among them that the claimants “have not clarified whether they believe a territorial sea surrounds” features they occupy.
The arbitration tribunal, however, ruled that no feature in the Spratly islands can claim a territorial sea nor an EEZ, making almost all of the Spratly islands international waters that US warships can freely sail in and through. That’s a huge load lifted from the shoulders of the US military lawyers.
And it was even the Philippines which paid over P700 million for lawyers’ fees and other expenses for the suit.