Asian Century Journal

An Asian Century Philippines Publication

Vital info on SCS China claims vs. Sec. Enrique Manalo’s misunderstanding of UNCLOS, the arbitration ruling revealing ignorance and Amboy mentality

(With thanks to the super-constitutional and international law luminary Cong. Rodante Marcoleta)

Sec. Manalo: Of course, we have an Office of Treaties and Legal Affairs in the Department and their primary function is to look at all treaties, especially those that do require Senate ratification. I apologize for any lapses that we have made and certainly, we will look to see if there are treaties that we failed to submit and will require ratification. We shall look into that and we will submit that as soon as possible and certainly, in time for the next session of the Senate. And I think that one that going to probably come first is the RCEP which will be up for ratification. Certainly, we will look into that and we would submit a list of any treaties that would require ratification, and maybe where we have failed to do so in the past, we will rectify that.

Cong. Rodante Marcoleta: When we speak about territory, in the context of the South China Sea arbitration, is our territorial sea and Exclusive Economic Zone part of our territory?

Sec. Manalo: We consider the Exclusive Economic Zone well within our sovereign human rights and in accordance to –

Cong. Marcoleta: I’m not talking about sovereign rights. I’m asking you about territory. Are our territorial sea and Exclusive Economic Zone part of our territory?

Sec. Manalo: In the strict legal sense, the Exclusive Economic Zone would not be part of our territory but we exercise the right of exploitation which in effect makes it, consider it part of our territory.

Cong. Marcoleta: We have a problem with your answer Mr. Secretary. What do you mean by straight legal sense? The territorial sea is 12 miles away from our shoreline, and EEZ is 200 nautical miles. But under Public International Law, these features, these seas, are not a territory of the state. But I’m asking you this because you made the statement that you will appoint the landmark ruling that found most of the claims of China invalid. That was your declaration. Was it the claims of China that were invalidated by the arbitral ruling?

Sec. Manalo: Well, the main claim of China that was invalidated was the nine-dash line.

Cong. Marcoleta: Yes that’s one. But what are the others? Because you said the various claims of China in the South China Sea.

Sec. Manalo: Well, China was claiming, when it occupied certain islands or rocks, that they were entitled to EEZs of 200nm which were invalidated by the ruling.

Cong. Marcoleta: You are not telling us the correct answer Mr. Secretary. The arbitral ruling did not invalidate the territorial claims of China in the Spratlys. Do you know that Mr. Secretary?

Sec. Manalo: I think what the ruling did was it definitely said that artificial islands or rocks were not entitled to any –

Cong. Marcoleta: That is correct Mr. Secretary. I’m asking you about the arbitral tribunal only confining to 8 features out of more than 100 in Spratlys. And I talked about maritime zones, and we talked about rocks, not islands. Because an island will entitle itself to 200nm. And there are islands occupied by China there. If it’s a rock, it only takes 12nm. The question is, did the arbitral ruling invalidate the possessions, and the territorial claims of China in those features?

Sec. Manalo: The ruling itself did not address the claims.

Cong. Marcoleta: Let’s get straight to the point. They did not invalidate the claims. That is the problem because there is limited jurisdiction in the Hague Arbitral. They have no jurisdiction over territories. Their jurisdiction is only to consider a declaration of whether or not the nine-dash line is consistent with the UNCLOS. But during the 6th anniversary of the arbitral award, you said this arbitral award on the South China Sea and the UNCLOS anchors the Philippines’ position in the West Philippines Sea. What do you mean by that?

Sec. Manalo: What I meant is that we will follow, first of all, the UNCLOS, the basic rule on maritime law. Therefore, there are many aspects of the UNCLOS which we feel should be the basis of the way countries behave. For example, on the South China Sea, on freedom of navigation, the arbitral award should be enforced.

Cong. Marcoleta: Mr. Secretary, the arbitral award is a declaration that the nine-dash line is inconsistent with the UNCLOS because China is unable to prove that those lines were supported by historic rights. China is okay with historic rights not supporting the nine-dash line. The problem is that China’s territory wasn’t revoked. They still own the areas they conquer, despite our EEZ. That is something that is not understood by our common folks. As I told you last time, shouldn’t you have considered – as another provision of the UNCLOS – that the South China Sea is a semi-enclosed sea? What do you understand by a semi-enclosed sea within the UNCLOS?

Sec. Manalo: Within the meaning of UNCLOS, as I said, there is the freedom of navigation and entitlement –

Cong. Marcoleta: What is the significance of the fact that the South China Sea is a semi-enclosed sea?

Sec. Manalo: In the perspective of the Philippines, because of the UNCLOS, we are entitled to the EEZ which stretches 200nm within the semi-enclosed sea, the South China Sea, and that is the exclusive right of the Philippines which is why we feel that our rights should be respected and in terms of the exploitation of the resources within the 200nm of the EEZ.

Cong. Marcoleta: Mr. Chair, the answers are uncomforting. He does not understand the question.

Sen. Tolentino: May we know from Cong. Marcoleta what answer he’s trying to secure from the good Secretary?

Cong. Marcoleta: He [Sec. Manalo] made a declaration that the UNCLOS and the award are the anchors of the Philippines’ position in the West Philippine Sea so we would like to know what he would do from there. Because if he understood that the South China Sea is a semi-enclosed sea.

Because a semi-enclosed sea is defined under Sec. 123 of the UNCLOS and stipulates that semi-enclosed sea coastal states need to go there in coordination, management, exploration, and even exploitation of both living and non-living resources. And we can further explore their additional fishing rights which then, we can protect our fishermen.

And I don’t hear him answer that. He keeps pushing for jurisdiction. We already said that we won insofar that the nine-dash line doesn’t exist. But China is just laughing at us because it doesn’t involve possession. The arbitral ruling does not eject China from possessing and occupying these territories, particularly the Spratlys. That’s why we’d like you to explore not only our rights, look at bilateral talks and maneuver there. Because you’d see that in the arbitration, Scarborough shoal is a traditional fishing ground. From there, we can convince China, just like what they did with Vietnam, to have a fishing agreement. If Vietnam can do that, we can also do that.

Sec. Manalo: Yes. In fact, it’s a little bit clearer now. They respected Scarborough Shoal’s traditional fishing rights and are in fact essential elements. And I think when it comes to our sovereign rights in the EEZ, that is what we are trying to protect, including our fishermen. If our fishermen are trying to exploit those resources in that area or whatever resources are available. Those are the things that we wish to protect or at least assert our rights on.

So, it’s in that respect that we feel that the arbitral award made it very clear on those certain points and we feel that we are obligated to see how we protect it. Now if other countries seek to prevent us from exploiting our rights, then that’s when we have to challenge their attempts to deprive us of those rights. So, in that sense, that’s how we view the implementation of the award. That’s why I said it’s an essential part of our approach to the South China Sea.

Now, how do we defend it? We try to talk to the countries who try to deprive us of those rights and we do have regular talks with them, in addition to other methods, for example in regional fora or international fora. So, it’s exactly those rights contained in the arbitral award and UNCLOS that we are trying to defend.

Cong. Marcoleta: Mr. Secretary, we will have a problem there because until and unless we clarify that China’s possession of those islands, they can enjoy also their maritime rights in their territorial seas and in their EEZ. Let us explain to our people that we cannot just eject China because it has the perfect rights to enjoy the territorial sea and EEZ that they are entitled to those rocks or islands that they occupy That issue should be stated clearly since they enjoy the territorial as occupants of those territories which happens to intersect in our own EEZ. They are perfectly supported by UNCLOS also. They are the occupant. They are the owners of those territories and there is no world court that will adjudicate this.

Sen. Jinggoy Estrada: Sec. Manalo are you willing to protect our sovereign territory against any foreign intrusions?

Sec. Manalo: Yes, your Honor. Of course.

Cong. Jose Gay Padiernos: We know that there have been a lot of incidents in the West Philippine Sea involving our fishermen being bullied by Chinese vessels. During the past administration, the DFA’s action to protest these incursions has been limited to Notes Verbales. May I please know from the good Secretary what further action can the DFA take from these concerns besides Notes Verbales?

Sec. Manalo: The first line of protest is through the Notes Verbales which we have been sending quite regularly to the Chinese side but that’s not the only approach we use.

At a bilateral level, we have regular meetings with China at a Foreign Ministry Level and even below that where we discuss problems and issues on the West Philippines Sea. We raise our concerns at that level. We also establish another forum called the Bilateral Consultation Mechanism on the South China Sea/West Philippine Sea with China and that is where we focus particularly on the issues or events in the South China Sea. That is also where the Philippines raises all the concerns that we raise in our Notes Verbales.

On a regional level, we also work with the ASEAN and at the moment we are negotiating with China a Code of Conduct on the South China Sea where these issues are reflected. So, in other words, the Notes Verbales are not the only thing we use to protest or assert whatever rights or positions we have vis-a-vis China’s actions in the South China Sea.

Cong. Padiernos: Do we have a definite foreign policy with regard to the war in Ukraine? If so, how has this manifested?

Sec. Manalo: On that war in Ukraine, the Philippines join most of the international community in expressing our opposition to what Russia did in terms of the fact that it violated the principles of the UN which is respect for the sovereignty of countries and in that respect, to refrain from the use of force to settle any disputes. And in that sense, the Philippines will be supporting the bulk of the international community in upholding the basic principles of the UN. The Philippines has also expressed on many occasions our concern with the humanitarian situation in Ukraine and we also call for steps to reach some kind of a ceasefire.

So, the Philippines has been fairly consistent with that approach. We are also concerned with some of the effects of the conflict on our economy, for example, which other countries have also experienced because of that. So, the Philippines has been very much supportive of the UN principles and in terms of the conflict in Ukraine.

The Secretary was confirmed for the position of DFA Secretary with no objections     –

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