Arbitration tribunal’s most useless ruling, and its worst

Last of four parts
THE tribunal’s ruling that was most hailed by the Yellow regime as well by the United States government and media was its judgment that China’s so-called, even infamous “nine-dash line” has no legal basis under the United Nations Convention on the Law of the Sea (Unclos). Benigno Aquino 3rd’s Foreign Affairs secretary, Albert del Rosario, claimed, and continues to claim, that the Chinese therefore have no right to be occupying features within that line, which includes eight reefs in our Kalayaan Island Group (KIG) and Bajo de Masinloc, off Zambales.

The tribunal did rule that the line has no justification under Unclos. However, that was really one of its most useless rulings: China’s claims in the South China Sea are not based on maritime entitlements specified by the Unclos.

Even the official Chinese documents (among these, the Declaration of the Government of the People’s Republic of China on the Territorial Sea of 1958 and the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone of 1992) in the post-war era that declared that the Nansha Islands (Spratlys), Xisha (Paracels), and Zhongsha (Macclesfield Bank, which it claims includes our Bajo de Masinloc) are part of its sovereign territory, do not even mention the nine-dash line.

Also referred to as the U-shaped or tongue-shaped line, the markings appear on official Chinese maps and has been widely interpreted to demarcate what China claims as its sovereign territory in the South China Sea, which would be over 70 percent of the area. The Spratlys and other island groups in the area claimed by China and other countries, including the Philippines, are within that nine-dash line.

The line was the creation of the Chinese Nationalist (Kuomintang) Party that had ruled China when its Ministry of the Interior published a “Map Showing the Location of the Various Islands in the South Sea” in 1948. The succeeding People’s Republic of China might have decided in the 1960s and 1970s to maintain that line in its maps, fearful that the Nationalist Party could allege, if it dropped those markings, that the Communist Party of China was proving to be less of a nationalist party than its arch enemy, the Kuomintang.

As the disputes in the South China Sea heated up though the 1990s, the Communist Party of China has used the line to strengthen visually in its maps its claims over the South China Sea. This is so since China to this day has not defined the territorial seas and exclusive economic zones (EEZs) it claims its Nansha and Zongsha regimes of islands are entitled to.

While not an official statement of the Chinese government, Wu Shicun, the president of the National Institute for South China Sea Studies, has claimed that “the U-shaped line is based on the theory of ‘sovereignty + Unclos + historic rights.’” According to this theory, China enjoys sovereignty over all the features within this line, and enjoys sovereign right and jurisdiction, defined by the Unclos, for instance, the exclusive economic zone or EEZ and continental shelf when certain features fulfill the legal definition of island regime under Unclos. In addition to that, China enjoys certain historic rights within this line, such as fishing rights, navigation rights and priority rights of resource development.”*

However China officially has so far not explained what the nine-dash line means, nor even its exact coordinates. In its arbitration suit against China, the Aquino 3rd government’s lawyers interpreted it as the area in the South China Sea which China claims it has “historic rights to living and non-living resources” established since ancient times.

The tribunal did uphold the Philippine submission, asserting that the Unclos “supersedes earlier rights and agreements to the extent of any incompatibility.” It explained: “The Convention is comprehensive in setting out the nature of the exclusive economic zone and continental shelf and the rights of other States within those zones. China’s claim to historic rights is not compatible with these provisions.”

While that ruling on the issue of “historic rights” has been questioned by not a few international law scholars, more important is the fact that the features within the nine-dash line are claimed by China as their sovereign territory, and not just an area it claims because of its historic rights.

That is, even if the nine-dash line had not existed, China still claims the three disputed island groups in the South China Sea as part of its sovereign territory, declared since 1947 in the modern era. To use Wu’s explanation that the nine-dash line represents “sovereignty + Unclos + historic rights,” the tribunal’s award struck down only “Unclos” and “sovereign rights” but not the all-important “sovereignty.”

Aquino and del Rosario were chasing a phantom issue that didn’t have a bearing on our territorial dispute with China.

However, the worst ruling of the Tribunal in terms of our national interest probably is this: The tribunal made us vulnerable to Chinese or Vietnamese military operations for China to control the Spratlys, which their laws have declared is part of their sovereign territory.

The Aquino-del Rosario lawyers had asked the tribunal to rule as illegal Chinese government vessels’ attempts in May 2013 to block Philippine vessels from providing supplies to our 12-man Marine detachment in Second Thomas (Ayungin) Shoal living in the BRP Sierra Madre wreck. The vessel was deliberately grounded there in 1999 by our Navy in a pathetic attempt to establish physical control of what the Philippines claimed was part of its Kalayaan Island Group. China had insisted it was part of its Nansha islands and that the GOP had promised to remove the wreck several years back.

The tribunal’s ruling shocked Aquino-del Rosario out of their wits:

“In the Tribunal’s view, this represents a quintessentially military situation, involving the military forces of one side and a combination of military and paramilitary forces on the other, arrayed in opposition to one another… Accordingly, the Tribunal finds that it lacks jurisdiction to consider the Philippines’ Submissions No. 14(a) to (c). (page 473 of Award).”

Devastating

The implication of this ruling is devastating to us. It means that any Chinese (or Vietnamese) attempt to use some kind of force — such as a blockade of, say, our Pag-asa Island to starve our contingent there — falls outside the jurisdiction of Unclos. Can we ask the US to intervene? Well, Aquino and del Rosario did during the Scarborough stand-off in 2012: then President Barack Obama outrightly refused to even have US ships escort our fisheries bureau’s vessel and our fishermen’s boats into the shoal.

If President Duterte had pursued Aquino’s belligerent stance against China, we would have lost all of our Kalayaan Island Group through some military or paramilitary maneuvers by Chinese forces, emboldened by the tribunal ruling that such moves were outside its jurisdiction. After all, the Scarborough standoff in 2012 proved the US will not lift a finger to help us in such territorial disputes.

That is one of the disasters of the Yellow regime’s belligerent stance against China which Duterte steered us away from.

*Observer Research Foundation, “ORF South China Sea Interview,” South China Sea Monitor, Vol. 2 (1) (January 2013), 9. As cited in Zou, K. and Liu, Xinchang “The Legal Status of the U-shaped Line in the South China Sea and Its Legal Implications for Sovereignty, Sovereign Rights and Maritime Jurisdiction,” Chinese Journal of International Law, Volume 14 Issue.

 

 


 

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