Until recently, this name was buried in the dustbin of Philippine bureaucracy. That is until he staged his one-man war against China, carelessly feigning he is the world’s chief arbiter when it comes to international law, a feat Roilo Golez, Albert del Rosario, Antonio Carpio, Richard Heydarian, Jay Batongbacal, Dindo Manhit et al have failed to achieve.
The Philippine Coast Guard spokesman for the West Philippine Sea Commodore Jay Tarriela said, “China continues to ignore the Philippines’ legal ownership of our EEZ over Ayungin Shoal; they continue to assert ownership of the area. Ayungin Shoal is ours. “
Let us start our analysis from there.
Tariella claims the Philippines’ legal ownership of our EEZ over Ayungin Shoal. Now this is a mouthful. “By international law, the Philippines has jurisdiction over all natural resources within its 200-mile EEZ.”
Two things. First let me clarify that no country can have “ownership” over an exclusive economic zone. EEZ’s are not subject to ownership, which denotes sovereignty.
We have to distinguish between sovereignty or ownership, and sovereign rights. Ownership applies territorial waters within 12 nautical miles from the shores while sovereign rights that the United Nations Convention on the Laws of the Seas (UNCLOS) extends to 200 nautical miles from a country’s shores.
The right nomenclature is jurisdiction, not ownership.
What are these sovereign rights over EEZ? UNCLOS defines these in Part V Article 56 Section 1 Subsections a and b:
(a) sovereign rights for the purpose of exploring and exploiting,
conserving and managing the natural resources, whether living
or non-living, of the waters superjacent to the seabed and of the
seabed and its subsoil, and with regard to other activities for the
economic exploitation and exploration of the zone, such as the
production of energy from the water, currents and winds;
(b) jurisdiction as provided for in the relevant provisions of this
Convention with regard to: (i) the establishment and use of artificial
islands, installations and structures; (ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
Second, the term “exclusive” can be confusing so UNCLOS submits a caveat in cases where countries have conflicting claims.
Part V, Article 56 Section 2 of UNCLOS stipulates “
“In exercising its rights and performing its duties under this
Convention in the exclusive economic zone, the coastal State shall have due
regard to the rights and duties of other States and shall act in a manner
compatible with the provisions of this Convention.”
In case of overlap, therefore, the operative mandate is not to insist on exclusivity but finding common ground on how to share the area, amicably at best. Failing that, UNCLOS provides for mechanisms for resolving disputes.
Beware of Minions Talking Big
Moving forward, there is a deeper issue involved here, which Tarriela cannot oversimplify by insisting that Ayungin Shoal is ours.
As the Manila Times article reads, “China rejects this claim, saying practically all of the South China Sea is part of its territory.”
There are three schools of thought here.
First, if our claim is that Ayungin shoal is part of our EEZ subject to sovereign rights, that is automatically defaulted because EEZs do not protrude the territory of another country and its territorial waters because the latter is subject to the higher principle of sovereignty or ownership.
This renders Tarriela’s statement, “We are not competing, this is not disputed as far as the Philippine government is concerned. It’s ours.” This simply idiotic grandstanding.
By simply controlling the area, China is already enforcing its sovereignty. Carl Thayer, an Australian maritime and international law expert defines sovereignty as the occupation of a given territory, sustained administration and control, and defense, if necessary.
This is why Digong Duterte said, if we want to argue at this level, we have to go to war against China. We cannot do this because first our Constitution prohibits war as an instrument of national policy, and second, we cannot win a war at all!
Second, this leaves us with no choice but to invoke our claims for sovereignty on the basis of the principle surrounding the Kalayaan Island Group, of which consists of islands, and shoals or reefs, one of which is the Second Thomas Shoal, or Ayungin in the vernacular. This puts claim on Ayungin on an even-steven with that of China, a matter of sovereignty.
President Ferdinand E. Marcos created the Municipality of Kalayaan by signing Presidential Decree No. 1596 into law on June 11, 1978, consisting of the Kalayaan Island Group. His three basic justifications for the Philippines’ legitimate rights to the territory – contiguity with the Philippine archipelago, historical title, and the lapsing of others’ claims.
The Philippines claims the Kalayaan Island Group on the assumption that after Japan renounced its title to the islands in the San Francisco Treaty of Peace of 1951, they reverted to being terra nullius because title was not explicitly passed to another state. Therefore, when a Filipino explorer named Tomas Cloma declared ownership over 33 maritime features in the Spratly Islands in 1956, no other country had a valid claim to them.
A subsequent law, Republic Act No. 9522, defined the archipelagic baselines of the Philippines, claimed sovereignty over the Kalayaan Island Group under Section 2, sub-paragraph A which described the territory as a “Regime of Islands”—a concept defined in the United Nation Convention on Law of the Sea for similar bodies of land.
However, there is a third conundrum.
President Benigno Simeon Aquino abandoned our caveat for bilateral resolution of issues when we signed and ratified UNCLOS, and proceeded to put China under voluntary arbitration in the Permanent Court of Arbitration at Hague.
Voluntary arbitration, however, limits the applicability of any ruling and its enforcement between the parties participating.
The fact that China did not participate is already damning as to the viability of the arbitral tribunal’s fiat invalidating the nine-dash line marking China’s sovereignty in the South China Seas. The nine-dash line is a claim by the Republic of China that is now limited to Taiwan. The Peoples Republic of China basis its ownership of the entirety of the South China Seas to historical and legal facts.
Further, the PCA ruling marked the Kalayaan Island Group as mere rocks.
While rocks could acquire sovereignty and territorial waters of 12 nautical miles, Part VIII, Article 121, Section 3 of UNCLOS says
“Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”
This is the reason it would be outrightly dumb to support Aquino’s much vaunted but empty PCA victory. We will weaken, if not altogether lose our claim for the Kalayaan Island Group as a regime of islands under UNCLOS, if we insist on this silly arbitral ruling.
The Aquino administration spent over a billion pesos for the PCA ruling but what did it get us? Nothing, nada, zilch. We were taken for a ride by American lawyers we hired on taxpayers money amounting to $7 million, and instead of tangible benefits for the Filipino people, the only thing being touted is the use of the illegality of the nine-dash line by American hegemonic lawfare and information war against China.
So how do you solve a problem like Jay Tarriela?
In the same was that you did today, getting the testosterone down and the facts straight.
Now that the air is clear, let us be thankful that China only uses only megaphones, water cannons and green lasers to get our side out of harm’s way.
All we have is that junk of the BRP Sierra Madre at the Ayungin Shoal and a few marines. I am willing to concede minimally that represents occupation.
But I guess it is quite obvious we do not have control of the area. What an imperfect sovereignty!
That Ayungin is 105 nautical miles from Palawan also does not constitute an indisputable EEZ, as we have already explained earlier.
Presidents Estrada and Macapagal already had a modus vivendi with the Chinese on how those poor soldiers ought to be resupplied their needs. The only requirement is informing the Chinese of any intentions to go into the disputed waters.
Note that China has already categorically told our side that they will not allow any permanent structure built in the shoal. That ship is by no means permanent, so they are just allowing it to rot and eventually be washed away.
But if Tarriela-types continue to argue those waters are not disputed because it is ours, and insist on not notifying the Chinese before they dig in, maybe the Philippine Coast Guard can ask the Americans if a civilian balloon would work.
Now who is bullying, the intruding or the flagging-down party?