We lost our islands with arbitration award

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Third of 4 parts
AS discussed in my last column, the arbitral tribunal declared only one feature occupied by China in the Spratlys, Mischief Reef, as within our exclusive economic zone (EEZ), which the superpower cannot claim since as a “low-tide elevation,” or one which sinks to the sea at high tide, it cannot be appropriated by any country.

Even that victory is doubtful because China argues that it claims Mischief Reef not as a separate feature, but as part of its Nansha islands.

Whether China is right or not, that the tribunal declared Mischief Reef as within our EEZ is dwarfed in significance by what we lost as a result of the award, which prompted not a few scholars to conclude that the arbitration ruling was a pyrrhic victory for the Philippines. The term’s origins refer to King Pyrrhus of Epirus who lost so many of his troops in one victorious battle with the Romans. In this case, the Philippines lost so much in getting the tribunal to rule that Mischief Reef is ours.

The tribunal extended its ruling on the Chinese-occupied features to all of the Spratlys, including the features we claim or occupy. It declared: “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 that none of the high-tide features in the Spratly Islands generate entitlements to an exclusive economic zone or continental shelf.”

The tribunal reduced the status of all islands in the area as mere “rocks,” under the Unclos definition. It’s a huge loss for us since we have, after Taiwan’s Taiping island, the biggest feature in the Spratlys, Pag-Asa (37 hectares in size) and several relatively big islands such as Likas (19 has.) and Parola (13 has), which, as is the practice with most states, are without doubt considered as islands.

But the tribunal declared that these are only “rocks” in its much criticized interpretation of Unclos provisions, and therefore not entitled to a 200-nautical mile EEZ. The flaw of tribunal’s ruling indeed was starkly demonstrated when it declared that the biggest island in the Spratlys, Taiping–47 has. in size and controlled by Taiwan, which has a garrison with an airport that can accommodate even C-130 planes, and is energy self-sufficient because of its huge array of solar panels–is not an island.

We could have claimed in future negotiations for delimitation of EEZs with other countries, that Pag-Asa island as well as the other islands we occupy and claim are each entitled 200-nautical mile EEZs, each of which is an area of 430 sq km, four times bigger than the entire island of Luzon. This vast area may contain oil and gas wells that we would have the right to look for.

But the tribunal we asked to rule on our dispute with China declared that these are not islands but merely “rocks,” and therefore not entitled to EEZs. The Aquino government’s attempt to shoot down China’s claims of sovereignty in the Spratlys backfired in a huge way on the Philippines,

The tribunal’s ruling on what are not islands goes against the current definitions of many countries.

For example, Japan’s Okinotorishima isn’t eroding into the sea only because the Japanese built an embankment around it. Its 10 sq m of land area is 1/37,000 the size of our Pag-Asa island. Yet the Japanese claim it is an island which has a territorial sea and EEZ, which gives it a huge 156,000 sq km of EEZ. Japan rigorously patrols that EEZ, protesting every time any foreign ship not on an innocent passage enters it, such as vessels surveying for hydrocarbon deposits..

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 vigorously exercises its sovereign right. Australia has McDonald Island, and France, Clipperton Island.

It verges on treason that the Aquino government allowed its American lawyers to argue at great length that our Pag-Asa island is not an “island” by Unclos standards, and to disclose to the world details that should have been confidential as it involved matters of national security.

The lawyers’ written statements disclosed, using the island’s American nomenclature, “Thitu” instead of our Pag-Asa: “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, Aquino-del Rosario through their lawyers lied to the tribunal, and misrepresented the Philippines when they claimed: “The Philippines…claims only a 12 [mile] 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 Spratlys 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.

The tragedy here is that it is only the Philippines that is 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 KIG. Taiwan, whose Taiping island was also ruled as a mere “rock,” will definitely 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.




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