I CONTINUE to be amazed at how even former ambassadors and professors of international law demonstrate inexcusable ignorance over our disputes with China (and Vietnam) over the Spratlys.
I was particularly annoyed that in one issue (December 4) of this newspaper, two opinion writers demonstrated a level of incomprehension that only matched their pomposity. Worse, they are writing in the very newspaper in which I have written over 110 columns on the issue since 2016.
Opinion writers often differ with the opinion of others. But if they miss crucial information, deliberately or not, it is not opinion but misinformation.
If supposedly knowledgeable people show such lack of information on the South China Sea disputes, the nation will never be able reach a compromise with other claimants, prodding China, in particular, to ignore our claims and instead flex their military and economic muscles, on grounds that we refuse anyway to negotiate for a settlement.
These two supposedly learned men simply repeat the late president Benigno Simeon Aquino 3rd’s infantile statement, “What is ours, is ours.” Because of the mentality that statement represented, the Philippines lost Scarborough and Ayungin Shoals, and spent P1 billion for the arbitration suit which, among other blowbacks, is what prodded China to build their artificial islands.
The two writers writing on the same day were former ambassador Amado Tolentino and San Beda law professor Saul Hofileña. In their columns, they demonstrate a very serious cluelessness over the crux of our dispute with China and Vietnam in the South China Sea.
China’s claims in the South China Sea (for example Ayungin Shoal) are not based on any claim of an exclusive economic zone (EEZ) but that the Spratlys are their sovereign archipelagic territories. That is, the Chinese claim sovereignty over it, just as for instance, they claim sovereignty over Hainan island or the Paracels. The two don’t seem to know this as they did not mention this at all.
In contrast, while we originally claimed the Kalayaan Island Group (which occupies most of the Spratlys) through the Marcos Presidential Decree 1596 of 1998, the Aquino 3rd regime in effect abandoned this claim in the arbitration suit, alleging only that because our EEZs encompasses the Spratlys, we have “sovereign rights” over the area.
In his piece, Tolentino (“Revisiting ‘Kalayaan’ in the WPS”) does not say a word at all about the nature and features of the Chinese claims of sovereignty over the Spratlys, which is that this was made even before World War 2 and does not have anything to do with the notorious nine-dash line.
Similarly, Hofileña (“The Philippine maritime zones”) lectures us on the United Nations Convention on the Law of the Sea, which became a treaty in effect in 1994 establishing EEZs and other maritime zones. He says absolutely nothing about China’s claims. He therefore concludes that since Ayungin Shoal is within our EEZ, the Chinese undertook illegal and unauthorized actions when it blocked our supply vessels from going to the dilapidated BRP Sierra Madre, the vessel that was deliberately grounded there in 1999. That is wrong as China claims the shoal as part of the sovereign archipelago it calls Nansha.
It asserted this claim in 1994 when it occupied Mischief Reef – 40 kilometers from Ayungin — and no international body nor even the US could do anything about it, even if China was at that time still militarily and economically weak.
This issue and how the arbitral panel dealt with it is discussed in detail in my forthcoming book Debacle: The Aquino Regime’s Scarborough Fiasco and the South China Sea Arbitration, scheduled to be out this month. What follows are excerpts (less the footnotes, which are in the book) from its Chapter 8, “Sovereignty is not sovereign rights”:
Excerpts from book
“China as well as Vietnam do not claim the Spratly archipelago because of any EEZs of theirs encompassing it. They assert that the archipelago is their sovereign territory, an outlying archipelago, a claim which is superior to maritime entitlement claims, which an EEZ is, based on the UN Convention on the Law of the Sea (Unclos). (An outlying archipelago is one distant from the state owning it, such as the Faroe Islands of Denmark, Ecuador’s Galápagos Islands and Spain’s Canary Islands.)
The arbitral panel was silent on this as if this territorial claim didn’t exist. Why so? Since it was an arbitral panel based on Unclos, it could only deliberate on provisions of this treaty, which does not deal with sovereign claims.
Aquino’s lawyers were well aware that because of Unclos (which was the basis for the arbitration), the panel had no authority to settle sovereignty disputes. The panel would have immediately dismissed the Philippine complaints if they had been formulated as sovereign disputes.
After all, all they needed really was an international body of whatever type to uphold the Philippine claim that it has sovereign rights over the Reed Bank and most of the Spratlys because its EEZ encompasses these areas.
Such a ruling they thought would be enough to get international public opinion to pressure China to give up, at least its claims in the Reed Bank. That would constitute the half-truth for a massive propaganda campaign that China has no valid claims in the Spratlys and that it ignores a “rules-based order.”
As even the US defense department in its 2017 annual report to Congress tersely put its analysis of the award: “The tribunal did not rule on sovereignty claims.”
“Questions of sovereignty over land [and insular] territory do not fall within the scope of the Unclos and could thus never constitute disputes concerning the interpretation or application of the Convention… The Philippines was, of course, acutely aware of this and so was at pains to ‘package’ the dispute as one concerning the interpretation of Article 121 of the Convention on the Regime of islands,” Oxford University professor of public international law Antonios Tzanakopoulos pointed out.
As Chris Womersley, another international law expert explained: “The tribunal failed to recognize that the fundamental dispute is about the sovereignty over the features in the South China Sea and not the status of the features, nor their maritime entitlements.”
Because of this fundamental dispute, Womersley pointed out that the arbitration suit should not have proceeded:
“There is no precedent for an international tribunal to consider the status of a feature when the territorial sovereignty over that feature is disputed, indeed hotly contested. During the hearing, [panel member Stanislaw] Pawlak asked the Philippines’ legal team whether they could quote any precedent ‘when entitlements to maritime features were decided separately from sovereignty over them.’ The Philippine team promised to revert on this point, but there is no sign in the award that they were able to discover a precedent.”
Even the arbitral panel itself emphasized in the very first of its award that it was not deciding on sovereignty issues:
“The Convention, however, does not address the sovereignty of States over land territory. Accordingly, this Tribunal… does not purport to make any ruling as to which State enjoys sovereignty over any land territory in the South China Sea, in particular with respect to the disputes concerning sovereignty over the Spratly Islands or Scarborough Shoal. None of the Tribunal’s decisions in this Award are dependent on a finding of sovereignty, nor should anything in this Award be understood to imply a view with respect to questions of land sovereignty.”
Sovereignty refers to a state’s absolute authority over its landmass, internal waters and its territorial sea. Sovereign rights refer to, and were formulated and defined by Unclos, as the coastal state’s exclusive rights to explore, exploit, conserve and manage an EEZ’s ‘natural resources, whether living or non-living, of the waters as well as of its seabed and its subsoil.”
Unclos is a treaty to settle disputes among themselves on the legitimacy of their maritime entitlements, not sovereign claims. The latter can be settled only through voluntary agreements of the claimant countries, not through an international law in the form of a treaty.
The arbitration panel ruled that the Philippines’ EEZ emanating from Palawan is legitimate and encompasses Reed Bank and Mischief Reef (and the nearby Ayungin Shoal), while China had no such EEZ covering that area. But it did not, and could not, rule over China’s as well as Vietnam’s claims that these areas are within their sovereign territories, which the former calls Nánshā Qúndǎo and the latter Quần đảo Trường Sa.”
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