Tuesday, December 31, 2019
By Rigoberto D. Tiglao December 30, 2019
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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Monday, December 30, 2019
Sunday, December 29, 2019
Saturday, December 28, 2019
Friday, December 27, 2019
By Rigoberto D. Tiglao December 27, 2019
Second of 4 parts
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Second of 4 parts
AT the core of the arbitral tribunal’s errors in its ruling was its refusal to recognize that the dispute between China and the Philippines involved sovereign claims over territory. The Philippines’ lawyers though deviously tried to package the suit as involving which country has the right maritime entitlements such as exclusive economic zones (EEZ) if such exist in the South China Sea (SCS) under the provisions of the United Nations Convention on the Law of the Sea (Unclos).
They did so because they knew full well that neither the tribunal nor any international panel nor the Unclos has the authority to rule on territorial disputes between nations.
“The tribunal should have got below the surface of the Philippines’ claims, but it did not,” Chris Womersley, an international law expert who has been an adviser to the British government on territorial issues pointed out. (In “The South China Sea: The Award of the Tribunal in the Case Brought by Philippines Against China — A Critique.”)
Similarly, Oxford University professor on public international law Antonios Tzanakopoulos pointed out: “The dispute between the Philippines and China is obviously over sovereignty over… features in the SCS, and only relatedly over maritime zones and the entitlements that the relevant features generate.”
Tzanakopoulos explained: “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.”
“The tribunal failed to recognize that the fundamental dispute is about the sovereignty over the features in the South China Sea, and that the status of the features, such as whether they are low-tide elevations or ‘rocks,’ is a question which can only logically be answered once the sovereignty dispute has been resolved,” the professor pointed out.
The Republicans’ legal strategy for getting the tribunal to rule that China had no legal basis in its occupation of eight reefs in the Spratlys and of Scarborough was to have it rule on the maritime entitlements of these features according to Unclos provisions.
The tribunal declared that four out of the eight features occupied by China in the Spratlys are “low-tide elevations,” or features, which are out of the water only at low tide.
These, under Unclos, therefore “do not generate entitlements to a territorial sea, exclusive economic zone, or continental shelf and are not features that are capable of appropriation.” These are Subi Reef, Gaven Reef (South), Hughes Reef and Mischief Reef. If these are not capable of appropriation, the implication is that China cannot claim them.
The tribunal, however, pointed out that Subi Reef, Gaven Reef (South) and Hughes Reef lie within 12 nautical miles of the high-tide feature of Sandy Cay (Son Ca for the Vietnamese), Namyit Island; and Sin Cowe Island, respectively. The tribunal therefore withheld judgment on whether the Philippine EEZ covers these three features, since they are within the 12-mile territorial sea of the three islands, which are claimed and occupied by Vietnam who is not a party to the arbitration suit.
As a result, the tribunal could declare only the Chinese-occupied Mischief Reef as within the EEZ, and that China has no right to it under Unclos. (It also declared Second Thomas Shoal, which we call Ayungin as such, but this feature has been controlled by the Philippines since 1999 when it grounded a World War 2 vintage ship to serve as outpost for a dozen Navy men.)
As to the remaining five Chinese-occupied features in the Spratlys — Gaven Reef (North), McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef — as well as Scarborough Shoal, the tribunal declared that while these are high-tide elevations, or out of the water even during high tide, these are classified as “rocks” under Unclos provision 121(3), which do not generate an economic zone or continental shelf.
Strangely though, the tribunal did not rule that these Chinese-occupied features are within the Philippines EEZ, and therefore was silent on the Philippines’ — and the US’ — protest that China built huge artificial islands with installations on reefs, that could be converted into military facilities.
The tribunal merely ruled that based on its finding land reclamation and construction of artificial islands, installations and structure resulted in severe, irreparable harm to the coral reef ecosystem in those areas.
But in its 748-page rebuttal of the tribunal’s award issued in December 2017, the Chinese Society of International Law claimed that its conclusion on environmental damage was based on faulty data. It pointed that the “research” was done within only 17 days and was not based on an actual investigation of the reefs China had built installations on but on other geographical sites such as the Great Barrier Reef and the Port of Miami. The research was also based on satellite images posed at the website of an American think-tank.
The Philippine victory therefore involved only Mischief Reef, which the tribunal claimed as within its EEZ, and which China cannot claim sovereignty over since it is a low-tide elevation “incapable of appropriation.”
But Mischief Reef and the other seven features China occupies in the Spratlys were determined only as located within the Philippines’ EEZ only in March 2009, through Republic Act 9022, called the “Baselines Law,” passed in March 2009.
China’s claim on these low-tide elevations and rocks is based not on claims for each feature but its claim declared even before World War 2 — and even before the modern era — and that the entire Spratlys as a unit, an archipelago that includes all the features there, is part of its sovereign territory it calls Nansha Qúndǎo, administratively under its Hunan province since 1958.
The reefs were all occupied by China in 1988 and then, in the case of Mischief Reef, in 1995 — many years before the Philippines claimed in 2009 that these were within its EEZ.
The Chinese though are to blame for many people’s failure to understand that China claims Nansha as a unit, or as, to use the Unclos term, a regime of islands. This is because Nansha Qúndǎo isn’t drawn in their maps as a clearly defined area but shown in Chinese maps as islands and reefs with Chinese names which with its adjacent waters are, in particular, shaded to mark its extent. China did announce the boundaries of Xisha, or the Paracel Islands, but only in 1996 when it defined the archipelago’s baselines. China in that year also announced it would soon declare the baselines around its Qúndǎo but so far hasn’t done so.
Even as it stated in several parts of the ruling that it cannot rule on issues of sovereignty, the tribunal nevertheless did so, and denied China’s sovereignty over those four low-tide elevations in the Spratlys, disguising such rule by using the words “not capable of appropriation.”
Womersley emphasized: “It is noteworthy that there seems to be 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, [tribunal] Judge 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 Philippines’ team promised to revert on this point, but there is no sign in the award that they were able to discover a precedent.”
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Thursday, December 26, 2019
Wednesday, December 25, 2019
By Rigoberto D. Tiglao December 25, 2019
First of 4 parts
IT is a colossal deception that the Philippines in 2016 won the arbitration suit against China involving our disputes in the South China Sea and that the country should pursue the “enforcement” of the arbitral tribunal’s “award.”
If it was a victory at all, it was a pyrrhic one, not a few international law scholars have concluded, That means that the damage to Philippine interests, and to the integrity of arbitration based on the provisions of the UN Convention on the Law of Sea (Unclos), made it tantamount to defeat.
(Salako, S. E. in “Entitlement to Islands, Rocks and Low-tide Elevations in the South China Sea: Geoeconomics versus Rule of Law” and Nordquist, Myron, “Unclos Article 121 and Itu Aba in the South China Sea Final Award: A Correct Interpretation”)
President Benigno Aquino 3rd and his foreign secretary Albert del Rosario told the country when it filed the suit in January 2013 that it would recover Scarborough Shoal (Bajo de Masinloc), which Aquino and del Rosario lost to China in June 2012 because of their bungling of the two-month-long stand-off between Philippine and Chinese vessels in the area, as extensively discussed in previous columns. Aquino’s plea for the US to intervene for us to get back Bajo de Masinloc, through American warships escorting our ships back into its lagoon, was also rejected by President Obama.
Del Rosario also claimed that the arbitration would resolve the country’s other disputes with the Chinese in the Spratlys area, specifically its occupation of seven reefs it claims China has no sovereignty nor sovereign rights over, but are within the Philippines’ exclusive economic zone (EEZ). “The Philippine choice of arbitration under Unclos is the last resort for a peaceful resolution of disputes in the West Philippine Sea after exhaustion of political and diplomatic approaches,” he said in his press statement.
But the Philippines failed to recover Scarborough through that arbitration suit. The tribunal ruled that it had no jurisdiction on this Philippine claim and that it was not an issue of maritime entitlements under Unclos, but of sovereignty over an island. The tribunal merely admonished China that it must allow Filipino fishermen, as well as those from other nationalities, to “engage in traditional fishing at Scarborough Shoal.”
The arbitration tribunal did not rule that Bajo de Masinloc was part of Philippine territory, nor that the Chinese occupation of it was illegal under the Unclos or any international law. The tribunal merely ruled:
“Scarborough Shoal has been a traditional fishing ground for fishermen of many nationalities and declares that China has, through the operation of its official vessels at Scarborough Shoal from May 2012 onwards, unlawfully prevented fishermen from the Philippines from engaging in traditional fishing at Scarborough Shoal.”(page 475 of arbitral tribunal’s award, July 2016)
However, the tribunal emphasized that it was not in any way deciding, nor could it decide on which country has sovereignty over Bajo de Masinloc. It had no jurisdiction on the Philippine demand since it was not an issue of maritime entitlements under Unclos — that is, exclusive rights over an area in the sea that extends from a land territory such as the EEZ — but of sovereignty over an area. This was not within the authority of Unclos.
In the very first pages of the “award,” the tribunal pointed out:
“The Convention, however, does not address the sovereignty of States over land territory. Accordingly, this Tribunal has not been asked to, and 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.” (pages 1 and 2 of the Award)
The tribunal indeed repeated this important point several times in its award:
— “The question of sovereignty over Scarborough Shoal will remain entirely unaffected by the Tribunal’s determination.” (page 176)
— “The Tribunal records that this decision is entirely without prejudice to the question of sovereignty over Scarborough Shoal.” (page 318)
— “The Tribunal has not addressed — and will not address — the question of which State has sovereignty over Sandy Cay, Thitu, or Scarborough Shoal and would thus have an entitlement to the surrounding territorial sea.” (page 296)
The tribunal’s decision on Bajo de Masinloc even indirectly strengthened China’s occupation of the shoal: China could now argue that even the ruling on the Philippine suit against China had not declared its occupation of the shoal illegal or violative of international law, even if the Philippines also claims that it is.
The tribunal merely admonished China that since it was traditional fishing grounds, it must allow Filipino fishermen and those from other countries to fish there. But that has been what China claims it was doing until the Philippines arrested its fishermen there in April 2012 and even sent a warship there to assist such an operation by is Coast Guard.
A November 2014 report of the Center for Naval Analyses — a private think tank for the US military — in November 2014, that is, two years before the tribunal handed down it ruling, pointed out:
“From its perspective, China resolved the sovereignty dispute with the Philippines over Scarborough Shoal in 2012 when it established control over the shoal. Again, it is unlikely to relinquish it. The government of the Philippines is in no position to even begin to contemplate the use of force to recover Scarborough, and the United States is not going to become involved in any attempt to expel the Chinese.”
The tribunal’s ruling in effect totally closed down arbitration, or any suit brought in an international court, as venues for the Philippines to recover it by means other than force.
The tribunal in its decision even mentioned China’s modern sovereignty claims over Bajo de Masinloc as well over the Spratlys:
“China claims sovereignty over Scarborough Shoal, which in China is known as ‘Huangyan Dao’ and treated as part of the Zhongsha Islands. In China’s 1958 Declaration of the Government of the People’s Republic of China on China’s Territorial Sea, China declared a twelve mile nautical sea from “all territories . . . including . . . the Zhongsha Islands.” China’s 1992 Law on the Territorial Sea and the Contiguous Zone also included the Zhongsha Islands in China’s territorial land which generated a 12-nautical- mile territorial sea.” (pages 199 to 200)
The tribunal added:
“On 27 November 2012, the Standing Committee of Hainan Provincial People’s Congress revised “The Hainan Provincial Regulation on the Control of Coastal Border Security” (“the Hainan Regulation 697”). As an administrative matter, China considers the Spratly and Paracel Islands, as well as Scarborough Shoal to form part of Hainan Province, since 2012 as part of the city of Sansha.” (page 271)
What many scholars found strange in the award was that while it purported to be aware of the Chinese claims of sovereignty, it facetiously dismissed these as irrelevant to the Philippine suit. “There is, indeed, much interesting evidence—from all sides—that could be considered by a tribunal empowered to address the question of sovereignty over the Spratly Islands and Scarborough Shoal. This Tribunal, however, is not empowered to address that question,” the tribunal merely said. (page 112)
Nevertheless, in the other rulings made by the tribunal, it actually — without saying so — ruled on the sovereignty issue even if it had no authority to do so, as many international law scholars have pointed out.
“The dispute between the Philippines and China is obviously over sovereignty over maritime features in the SCS, and only relatedly over maritime zones and the entitlements that the relevant features generate,” an Oxford University professor on public international law Antonios Tzanakopoulos pointed out. (In “Resolving Disputes over the South China Sea under the Compulsory Dispute Settlement System of the UN Convention on the Law of the Sea”)
Similarly, Chris Womersley, an international law expert who has been an adviser to the British government on territorial issues pointed out: “The tribunal failed to recognize that the fundamental dispute is about the sovereignty over the features in the South China Sea, and that the status of the features, such as whether they are low-tide elevations or ‘rocks,’ is a question which can only logically be answered once the sovereignty dispute has been resolved.” (In “The South China Sea: The Award of the Tribunal in the Case Brought by Philippines against China — A Critique”)
That it ruled against China’s sovereignty claims in its award and recognized Philippine EEZ entitlements is the huge flaw in the tribunal’s decision.
Part 2 on Friday:
“PH shot itself in the foot”
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