By Adolfo Quizon Paglinawan

 

Part Two of 3: The Philippines’ Failing Foreign Policy

By Adolfo Quizon Paglinawan

China has lodged solemn démarches to Department of Foreign Affairs as it opposes attempts by the Philippines to solidify the illegal ruling of the South China Sea arbitration through domestic legislation through Senate Bill 2492 or the Philippine Maritime Zones Bill. 

The Philippine Senate recently approved the bill on the third and final reading; it goes to the lower house of Congress, and if confirmed, goes to the President for signature into a domestic law.

The Chinese position argues the move has unlawfully included China’s Huangyan Island (Scarborough) and most of the islands and reefs in the Nansha Islands (Spratlys) in its maritime jurisdiction.

Mao Ning, spokesperson of China’s Ministry of Foreign Affairs, said “The move has severely violated China’s territorial sovereignty and maritime rights and interests in the South China Sea.”

While the legislation increases the internal legitimacy of Philippine claims, it hardens the Philippine position in its disputes with China, making diplomacy harder to achieve a win-win solution to our problems in the South China Sea.

Once enacted, the Philippine propaganda says the Filipinos can expect the bill’s designation of maritime zones “to better suit the standards set by the UN Convention on the Law of the Sea (UNCLOS)”.

But that does not seem to be forthcoming, in fact, it is misleading.

In its Section 3, it alleges that Philippine archipelagic baselines have already been determined by Republic Act 9522 when it amended earlier RA 3046 and RA 5446? There is nothing in SB 2492 that corrects the incompleteness of RA 9522, as pointed out by former associate justice of the Supreme Court Francis Jardeleza and international law and conflict resolution expert Melissa Loja.

It also attempts to codify the 2016 Arbitral Ruling, a move that rendered the “nine-dash line” as having no legal basis only insofar as a single treaty, the United Nations Convention of the Laws of Sea, is concerned.

UNCLOS is not the entirety of international law.

 This puts wool over our eyes as there are pressing concerns that many of the ruling’s provisions are actually adversarial to our interests.

 The ruling did not rule out China’s historic claims at all.

 In Paragraph 272 the tribunal ruled: “In particular, the Tribunal emphasizes that nothing in this Award should be understood to comment in any way on China’s historic claim to the islands of the South China Sea.”

It was not even dismissive of China’s entitlements under UNCLOS:  

“Nor does the Tribunal’s decision that a claim of historic rights to living and non-living resources is not compatible with the Convention limit China’s ability to claim maritime zones in accordance with the Convention, on the basis of such islands.”

The ruling also denied our claim in the Spratlys for a regime of islands:

In Paragraph 574, it concluded that “…even the Philippines could not declare archipelagic baselines surrounding the Spratly islands” which is a rejection of the polygon delimited by President Marcos’ Presidential Decree 1596 for the Kalayaan Island Group.

In this regard Jardeleza said, “The baselines law is only a law which measures the 200 nautical miles that we have from our baselines that is the extent of the sea over which we have so-called sovereign rights.”

Two things here. First when the tribunal award classified some of our “claimed” features in the Spratlys not as islands but “rocks” or high-tide elevation entitled to 12 nm of territorial sea around it, “the present law (RA 9522) did not stipulate baselines measure to the territorial sea of Pagasa and other rocks that we claim,” he added.

Second, SB 2492 incorrectly affirms RA 9522’s reduction of the polygon created by Marcos PD 1596, giving up 70,000 square kilometers of our claims. As a result, Parola and Pagasa (Thitu), the second largest island in the SCS after Itu Aba, are now outside the claimed EEZ of the Philippines 200nm from Palawan.

In Paragraph 805, “the tribunal is of the view that Scarborough Shoal has been a traditional fishing ground for fishermen of many nationalities, including the Philippines, China (including from Taiwan), and Viet Nam”, negating the exclusivity of any Philippine claims to An economic zone in Scarborough Shoal.

Worse, in Paragraph 809, “the tribunal notes, however, that traditional fishing rights are not absolute or impervious to regulation…(that) may be necessary for conservation and to restrict environmentally harmful practices. We have a big problem there because the claimant state in charge of regulation of fishing rights in and around the Shoal is China, as its law enforcement agencies exercise effective control of the area after we defaulted it to them after the Scarborough standoff of 2012.

In Paragraph 1192, it declared that Ayungin Shoal is a “quintessentially militarized situation” debunking the application of any Philippine claims to an exclusive economic zone of 200 nautical miles.

There are many more and these are not reassuring to any unilateral legislation because the tribunal itself confirms that our side acknowledges good faith in behalf of China in Paragraph 1198, “the root of the disputes presented by the Philippines in this arbitration lies not in any intention on the part of China or the Philippines to infringe on the legal rights of the other, but rather…in fundamentally different understandings of the respective rights under the Convention in the waters of the South China Sea.”

China has slammed that the “victory” often asserted by the Philippine side “a political farce concocted by the US.”

The denial of this asymmetry peddled by American propaganda and lawfare, indeed, has muddled the issues idiotizing the Filipino debate through loaded definitions demonizing China.

As it stands, enforcement is already difficult. SB 2492 will only stonewall our position and reduce our flexibility to achieve the cooperation of China.

Bottomline, there are only two ways China can allow us to function in the waters and land (or rocks) they have effective control. Wrest actual occupation of features through a shooting war, or be allowed by China through bilateral negotiations.

The second had already successfully navigated in the past through arragements on fishing and resupply missions. Since February 2023, however, the Marcos administration, started disregarding protocol as it appears to misconstrue “consultations and exchange of information” as compromising rights to the Chinese side.

The President himself has often repeated that he will not “surrender an inch of territory.” But at the risk of redundancy, with SB 2492, he will be throwing away 70,000 square kilometers of what his father claimed.

Codification

The Department of Foreign Affairs of Philippines said the bill would “codify the status and regime of the waters inside the archipelagic baselines and redefine the extent of Philippine territorial sea, including the contiguous zone.” What a mouthful – only UNCLOS can do this, any domestic legislation will only be tantamount to unilateral interpretation that will further confuse the debate. A classic penchant of the Filipino to create a problem for every solution!

China’s above-mentioned sovereignty, rights and interests in the South China Sea were established in the long course of history, and are solidly grounded in history and the law, which are in compliance with the UN Charter and international law, including the UNCLOS, said China’s spokesperson.

Indeed, the most recent of this is the statutory construction from the Cairo Conference of 1943 reinforced by the Potsdam Declaration of 1945, the Treaty of San Francisco of 1951 completed by the Treaty of Taipei of 1952, with the Peoples Republic of China as successor-in-interest by virtue of the United Nations One-China Resolution 2758, and finally recognized by the Philippines in its Joint Communique with PROC in 1975.

The territory of the Philippines has also been defined by a series of international treaties, specifically the Treaty of Paris of 1898, the Treaty of Washington of 1900 and lastly the 1930 Convention Treaty of the US and UK defining its southern boundary.

Contrary to what Philippines implies, the 2016 Arbitral Ruling did not award any “land territory and territorial sea” to the Philippines insofar as the “Kalayaan Island Group” and “Scarborough Shoal” are concerned. The only legal basis for the Kalayaan Island Group is PD 1596. Our claim to Scarborough Shoal has no legal basis on record.

UNCLOS has no jurisdiction over land territory.

China maintains that PD 1596 constitute an illegal occupation of a number of islands in the Nansha Islands has seriously violated international law, including the UN Charter.

What’s more, without the Chinese government’s prior consent, the Philippines unilaterally initiated an international arbitration, including UNCLOS, the spokesperson said. 

The arbitral tribunal in the South China Sea arbitration handled the case ultra vires and made an illegitimate ruling. The rendered award is illegal, null and void. China neither accepts nor participates in that arbitration, neither accepts nor recognizes the award, and will never accept any claim or action arising from the award, Mao said. 

Land territory determines maritime rights

China’s territorial sovereignty and maritime rights and interests in the South China Sea will not be affected by the award in any way, she added. 

Stressing that territorial sovereignty is the precondition and foundation for the generation of maritime rights and interests, Mao said the Philippines, under the pretext of implementing UNCLOS, has advanced the legislation of the “Maritime Zones Act” in an attempt to put a legal veneer on its illegal claims and actions in the South China Sea.

Such “Act” goes against the provisions of international law, including the UN Charter and UNCLOS, and against the spirit of the Declaration on the Conduct of Parties in the South China Sea.

“This completely horrendous act will inevitably make the situation in the South China Sea more complex,” Mao warned. 

So complex, it may court economic sanctions and limitation of access, maybe even war.#

TO BE CONTINUED.

   

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