By Adolfo Quizon Paglinawan

 

Part Three: A nation with many strange voices

The geopolitical significance of the South China Sea to its coastal states is the unfathomable wealth of natural resources, from abundant fisheries and marine life to prospects of natural gas and hydrocarbon reserves.

To the world, it is a crucial link connecting the Pacific to the Indian Ocean, Persian Gulf and Europe, and where estimates up to $5 trillion in global trade flow each year.

The Chinese are the primary beneficiaries and user of this vital waterway, accounting for roughly 40% of its total trade and a major share of its energy imports (around 80% of oil), making it crucial for China’s economic security and global supply chains whose backbone is its Belt and Road Initiative.

US lobby

The United States is still strongly hued by its cold war reflexes. This is why it has been consistently lobbying, diplomatically and militarily, to widen the space for unhampered freedom of navigation west of the Philippines that would substantially cut to near half the erstwhile nine-dash line starting from its Malaysian limits.

On the diplomatic front, we traced this back to 1961 at the Second Conference for the Law of the Sea (LOS), when the US blocked Philippine submissions to consider as “inland waters by virtue of a convention” which was the very treaty limits it bought from Spain for $20 million dollars and bequeathed to the Philippines.

The US did not succeed then as deliberations never occurred but US again protested this same provision in the declarations entered by the Philippines when we ratified UNCLOS in 1986. But the protest was merely put on record.

In 2004, while the US did not lodge a strong protest when President Gloria Macapagal-Arroyo entered into a Joint Marine Seismic Undertaking (JMSU) with China and Vietnam, Washington closely monitored it sowing unease and intrigues along the narrative that it bypasses Philippine sovereignty and legitimizes China’s expansive claims in the South China Sea.

Instead of public condemnation, the U.S. used State Assistant Secretary Kurt Campbell and the US Embassy in Manila to employ lawfare, engaging with allies, subtly clashing with the bilateral, resource-focused JMSU’s spirit and secrecy, and ultimately pushing and promoting instead multilateral options and collaborative, rules-based processes.

JMSU eventually ended in 2008 better remembered not for its tangible benefits but highly politicized debates.

Reeling from her public relations and seeming policy defeat, Arroyo faced another test – meeting a critical deadline on May 2009, set by a UN Commission for submission  of compliant baselines for claims for an “extended continental shelf” (ECS) beyond the standard 200 nautical mile “exclusive economic zone” (EEZ).

Geopolitical pressure, aggravated by the lack of historical insight and shallowness of our diplomats and legislators, led to the rushing of the Philippine Archipelagic Baselines Law (RA9522) on March 2009, with the Senate Bill 2699 filed only as recent as November 2008, with no sufficient safety nets or alternative language protecting our historic treaty limits.

The late Juan Ponce Enrile and Antonio Trillanes IV were two of its sponsors.

Subsequently the updated Baselines Law was challenged in the Supreme Court, to wit:

“Petitioners, professors of law, law students and a legislator, in their respective capacities as “citizens, taxpayers or xxx legislators,”xxx assail the constitutionality of RA 9522 on two principal grounds, namely:

(1) RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine state’s sovereign power, in violation of Article 1 of the 1987 Constitution,embodying the terms of the Treaty of Parisand ancillary treaties,and

(2) RA 9522 opens the country’s waters landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and national security, contravening the country’s nuclear-free policy, and damaging marine resources, in violation of relevant constitutional provisions.^”

The Supreme Court, however, ruled that the law was constitutional. (GR187157 on August 2011.) The ponente was Antonio Carpio.

A new opportunity for remedial legislation to fine tune the shortcomings of Republic Act 9522 came in 13 years after when a Senate Bill was filed by Francis Tolentino, but only to step on the same rake twice by incorporating the 2009 national baselines law into the 2004 National Maritime Zones Act, verbatim.

Ergo, our historical treaty limits are still superseded by our ambitions for a greater grab at 200 nautical miles of potential exclusive economic zone, disregarding the asymmetry between sovereignty and sovereign rights.

We have boxed ourselves as the United States lawfare proxies west of the country, not just a treaty ally but a manifestation of a canine devotion overtaking  all cares for our bottom-line national interests.

Ghost ‘West Philippine Sea’

As a consequence, our high government “ignorami” exchanged our established territorial sea of 940,250 to only 32,106 square kilometers and a potential EEZ of 1,106,723 square kilometers.

At face value, this presents a gain of 276,583 square kilometers, but in substance, devalued to only sovereign rights in a 200 nautical miles economic zone west of the Philippines, that cannot be exclusive because five parties have disputed it, namely Malaysia, China, Vietnam, Taiwan and Brunei.

Contradictory to repeated propaganda by Defense Secretary Gibo Teodoro, National Security Adviser Eduardo Ano, Rear Admiral Roy Vincent Trinidad, PCG Commodore Jay Tarriela, NSC spox Jonathan Malaya, their uninformed allies in Congress, paid US agents in the Stratbase Albert del Rosario Institute and dubious thinktanks, mainstream press and social media trolls, UNCLOS requires other states to have due regard for a coastal states’ rights when exploiting resources in the EEZ.

• Article 56: Grants the coastal State/s sovereign rights over resources (living and non-living) and jurisdiction over marine research and environment.
• Article 58:Establishes freedoms (navigation, overflight, cables and pipelines) for all States but requires them to exercise these with “due regard” for the coastal State/s rights.

In essence, while the coastal States have economic rights, other nations retain freedoms of the sea but must act with due consideration for the coastal State’s sovereign rights and jurisdiction ensuring a balance between exploitation and freedom of the seas.

But most importantly, as South China Sea claims involve five coastal parties:

• Article 59: Provides a framework for resolving conflicts when rights and jurisdictions overlap, stressing the need to balance competing interests. 

This is reinforced by other UNCLOS provisions:

• Article 86: Specifies that all parts of the sea that are not included in the exclusive economic zone (such as the surface of the water and the aerospace above it), territorial sea, or internal waters of a State and are considered high seas.
• Article 87: Lists freedoms, including freedom of navigation, overflight, fishing, scientific research, and laying submarine cables and pipelines.
• Article 88: States that the high seas shall be reserved for peaceful purposes, prohibiting military activities and weapon testing.
• Article 89: Prohibits any State from attempting to subject any part of the high seas to its sovereignty. 

In essence, these articles form the bedrock of high seas governance, emphasizing freedom, peaceful use, and non-appropriation.

But apples to apples, we have therefore incurred  a loss of 830,140 square kilometers of clean, uncontested and historic title of territorial sea bestowed by three treaties, and the sovereignty and full ownership of the airspace, the water column, the sea bed  and everything under it

Sovereign Rights under UNCLOS

• Limited Scope: The basic rule is sovereign rights grant specific privileges, not outright ownership. Focuses on economic activities and resource management, of what is under the surface of the waters up to the seabed.
• Resource Focus: Includes exploring, exploiting, conserving, and managing marine resources (fish, oil, gas) and renewable energy (currents, wind).
• EEZ Application: Extending from the baseline to 200 nautical miles from the coast.
• Jurisdiction: In the absence of any counterclaim by any other state,  or the resolution of disputes between states, sovereign rights expand jurisdiction over artificial islands, marine scientific research, and marine environment protection within the EEZ.

Without contest, this applies to everything east of our archipelago at starting at Benham Rise, where the United Nations has even recognized 118 nautical miles of extended continental shelf (ECS) on top of 200 nautical miles of uncontested and exclusive economic zone.

This clarity is also applicable to the Philippine Sea south of the Benham Rise and the Celebes Sea south of Mindanao.

Kalayaan Island Group

Lastly, the KIG “archipelagic baselines” that was carved on the basis of terra nullius by President Ferdinand Marcos Sr which he legislated as Presidential Decree 1596 in 1978, no longer exists.

The final language of UNCLOS, adopted in 1982 and became effective in 1994, came with a new definition of an archipelago.

• Article 46: A group of islands and interconnecting waters forming an intrinsic geographical, economic, and political entity. Article 47 provides the technical specifications:

• Straight Baselines: An archipelagic state draws straight lines to link the outermost points of its islands and drying reefs.
• Water-to-Land Ratio: The area enclosed must have a water-to-land ratio between 1:1 and 9:1.
• Baseline Length:These baselines generally can’t exceed 100 nautical miles, with exceptions for up to 3% of baselines reaching 125 nautical miles.

This has been confirmed by Paragraph 574 of the 2016 Arbitral Award:

“In any event, however, even the Philippines could not declare archipelagic baselines surrounding the Spratly Islands.”

Melissa Loja, the PhD in international law expert who assisted Francis H. Jardeleza, a retired associate justice of the Supreme Court who served as  State Agent in the 2013-16 SCS Arbitration, submitted this analysis:

“It is the Arbitral Tribunal that nullified the baselines defining the KIG under PD 1596. It had to, because under Article 25 of the rules of procedure of the arbitration, it had the due diligence obligation to “satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.

“Had the Arbitral Tribunal not nullified the KIG definition under PD 1596, the Philippines would have continued to maintain a claim based on it. The Arbitral Tribunal would have lost what scholars call its ‘Kompetenz-Kompetenz’.

“It killed PD 1596 in defense of its legitimacy.”

Vietnam parallels?

My study of Vietnam’s claims placed it on a better promontory because its colonizer France first asserted claims and occupied parts of the Paracels and Spratlys in the 1930s, officially annexing some features into French Indochina by 1933, and its armed occupation in 1938.

But Japan occupied Vietnam and entire South China Seas in World War II. On July 1945, Allied powers agreed to divide Indochina at the 16th parallel for the purpose of accepting the Japanese surrender.

North of the 16^th parallel went to the Chinese nationalist forces and the South was momentarily handed over to the British under Lord Mountbatten pending France’s re-establishing colonial rule. But taking advantage of the interregnum, the Vietnamese declared independence under Ho Chi Minh on September 2, 1945 before the French troops could return.

The entire South China Sea, however, was surrendered by Japan to the Republic of China in 1952, and even if it renewed its claims in 1956,  there is spot in history favoring Vietnam as successor-in-interest for the features that were annexed to French-Indochina.

In the case of the Philippines, we were returned to our colonizer the United States of America and had no presence in the pertinent areas before the global war.

Frankly, I do not think with only “terra nullius” as basis, we can really have any viable grounds in an international court of law or arbitral tribunal. Yet Marcos started occupying islands only in 1971, and decreed an internal law formalizing it in 1978.

In December 2002, sixteen years after he was deposed, Marcos Sr’s wisdom and legal brilliance paid off. A Declaration of Conduct in the South China Seas was signed between China and the member states of the Association of Southeast Asian Nations (ASEAN), with status quo implications.

Section 6 of the Declaration of Conduct (DOC):

“Pending a comprehensive and durable settlement of the disputes, the Parties concerned may explore or undertake cooperative activities.

a. marine environmental protection;

b. marine scientific research;

c. safety of navigation and communication at sea;

d. search and rescue operation; and

e. combating transnational crime, including but not limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms.

This is where Philippine diplomacy starts to fork while the Vietnamese excel – the condicio sine qua non or essential prerequisite that follows:

“The modalities, scope and locations, in respect of bilateral and multilateral cooperation should be agreed upon by the Parties concerned prior to their actual implementation.”

By observing instead the United States zero-sum mentality, we lost 70,000 square kilometers of bargaining chip that Apo Marcos invested for us.

Since the KIG can no longer comply as an archipelago with the new UNCLOS guidelines, Section 2 of Republic Act 9522 reclassified it as a “Regime of Islands”, drawing fuzzy justification under the broad Article 121of the Convention..

Republic Act 12064 or the National Marime Zones Act, reaffirmed this.

To this day and time, we have been lazy. We have not learned to recover from our lack of strategic thinking using instead a phantom “West Philippine Sea” as recoupment for our loses.

The Philippines has not yet submitted new baseline configurations for the affected features or subset of “islands” that we have de facto occupied.

This is important because as rocks accepted by the 2016 Arbitral Award, the former features of the KIG that exhibit hightide elevation (HTE) inside the new regime of islands, are themselves entitled to 12 nm territorial waters.

We can add those to the residual territorial sea of the Philippines extending 12 nautical miles from our coastal baselines and limits of internal waters inside our true archipelago, that the National Maritime Zones Act has reduced to only 32,106 square kilometers (Refer to Chart 1) which we can submit to the UN and the International Hydrographic Organization, that when favorably considered we can legitimately call “West Philippine Sea”.

The foregoing facts speak for themselves.

Do hear a boo in the peanut gallery for those who still claim that we had an Arbitral victory?

Next: The Telephone Game that Lost Scarborough Shoal

   

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