CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
13 July 2016
from : Kimball (2001)
Courtesy of the Philippine Daily Inquirer website, we read, with difficulty because of the zoom function’s unwieldiness, (though the next day the website of the Permanent Court of Arbitration was no longer congested) the 501-page ruling of the Permanent Court of Arbitration released at 5pm, Philippine time, on 12 July 2016. For those who are interested in the main ruling, we go straight to the conclusion of the tribunal on the key issues raised by the Philippines and give our opinion on what it will mean for the Philippines.
1. On China’s “9-dash line” and its historic rights arising therefrom
In par. 278 of the Award, the Tribunal held :
xxx… The Tribunal concludes that, as a matter between the Philippines and China, China’s claims to historic rights and other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the “nine-dash line” are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention. The Tribunal concludes that the Convention superseded any historic rights or sovereign rights in excess of the limits imposed therein.
WHAT IT MEANS : The “nine-dash line” which formed the basis for China’s historic rights to the South China Sea is now declared by the Tribunal to have no legal effect whatsoever as it has been superseded by the UN Convention on the Law of the Sea or UNCLOS, the Convention referred to in the ruling. The qualifier “to the extent that they exceed the geographic and substantive limits of China’s entitlements under the Convention” means that China can invoke such rights only up to the limits of China’s exclusive economic zone and continental shelf, which are the maritime entitlements all Parties to the Convention have as a matter of right. This will greatly shrink the claims of China back to its baselines which is what is provided by UNCLOS, at 200 nautical miles maximum. China’s baselines and maritime claims will now be pushed back very far from the islands claimed by the Philippines considering that the nearest island to China is Scarborough Shoal which is 448.2 nautical miles from the nearest Chinese baseline (and a mere 116.2 nautical miles from the Philippine baseline) while the farthest is Second Thomas Shoal which is 616 nautical miles from the nearest Chinese baseline (and a mere 104 nautical miles from the Philippine baseline in Palawan). It will now be very difficult for China to harass other maritime states in the South China Sea based on this discredited “nine-dash line” theory and they can just treat China’s assertions to sovereignty over these islands as empty rhetoric devoid of any legal substance.
2. On the status of Mischief Reef, Second Thomas Shoal and other similar features (Scarborough Shoal, etc.)
In para. 647 of the Award, the Tribunal held:
xxx…The Tribunal concludes that both Mischief Reef and Second Thomas Shoal are located within 200 nautical miles of the Philippines’ coast on the island of Palawan and are located in an area that is not overlapped by the entitlements generated by any maritime feature claimed by China. If follows therefore, that, as between the Philippines and China, Mischief Reef and Second Thomas Shoal form part of the exclusive economic zone and continental shelf of the Philippines.
WHAT THIS MEANS : Given that such maritime features as Mischief Reef (Panganiban Reef) and Second Thomas Shoal (Ayungin Shoal, where an old rusty Philippine ship was run aground) are now considered part of the Philippine exclusive economic zone (EEZ), the Philippines will now have sovereign rights over the natural resources therein including other economic uses and jurisdiction as specified in the Convention regarding marine scientific research, marine environmental protection, and the establishment and use of artificial islands, installations and structures; as part of the Philippines’ continental shelf, which may extend beyond 200 nautical miles but not beyond 350 nautical miles from the baseline (depending on the configuration of the seabed), the Philippines as a coastal state exercises sovereign rights over natural resources and jurisdiction over marine scientific research. (Kimball, 2001)
As to the status of other islands claimed by the Philippines, namely, the Scarborough Shoal (the Panatag Shoal or Bajo de Masinloc), the Johnson Reef, the Cuarteron Reef (Calderon Reef), the Fiery Cross Reef (Kagitingan Reef), the Gaven Reef North (Burgos Reef) and the Mckennan Reef, the Tribunal considered all of them as a “rock” for the purposes of article 121 (3) of UNCLOS, meaning they cannot generate the so-called “maritime entitlements”, thus no exclusive economic zone or continental shelf can be claimed by China on these maritime features, notwithstanding the various construction activities it has already undertaken therein.
3. On China’s activities in the South China Sea, i.e., (a) in respect of traditional fishing in Scarborough Shoal, (b) failure to protect and preserve the marine environment and (c) occupation and construction activities on Mischief Reef
There are actually two more items that we are leaving out here, as they are more concerned with diplomacy and law enforcement concerns, but these three things – traditional fishing in Scarborough Shoal (or Bajo de Masinloc), which figured prominently in the last Presidential debate in University of Pangasinan, the destruction of the marine environment that was documented by scientists affiliated with the University of the Philippines’ Marine Sciences Institute and the Chinese build-up that was tested by US ships and warplanes would be very relevant to the general public’s appreciation of the extent of China’s willful disregard of Philippine sovereign rights to its marine resources.
On the traditional fishing activities in Scarborough Shoal, the Tribunal has this finding in para. 814 of the Award :
xxx….the Tribunal finds that China has, through the operation of its official vessels at Scarborough Shoal from May 2012 onwards, unlawfully prevented Filipino fishermen from engaging in traditional fishing in Scarborough Shoal. The Tribunal records that this decision is entirely without prejudice to the question of sovereignty over Scarborough Shoal.
WHAT THIS MEANS : This is the only part of the Award which is considered a draw and is not completely against the Chinese position. The tribunal has recognized that the Scarborough Shoal has been the traditional fishing grounds not only of Filipino and Chinese fishermen, but also of other countries, like Vietnam and Taiwan. The Tribunal has therefore ruled that any and all fishermen from both Philippines and China and from all nearby countries that have historically fished in Scarborough Shoal may do so, but these should only be artisanal, or small or in the Philippine case, municipal fishermen, and not those who do fishing in an industrial manner. The ultimate question of which country has sovereignty over the Scarborough Shoal is a different matter that will need to be dealt with in another legal proceeding. In the meantime, no one country can exclude another country from fishing in this area.
On the destruction of the marine environment, the Tribunal has this finding in para. 992 of the Award:
xxx… the Tribunal finds that China has, through its toleration and protection of, and failure to prevent Chinese fishing vessels engaging in harmful harvesting activities of endangered species at Scarborough Shoal, Second Thomas Shoal and other features in the Spratlys Islands, breached articles 192 and 194 (5) of the Convention.
WHAT THIS MEANS : Article 192 refers to a general obligation of UNCLOS state-Parties, like China, to protect and preserve the marine environment, while article 194 (5) would refer to measures that would have been taken by the Parties to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life. This clear finding of a breach by the Tribunal activates article 235 of UNCLOS on responsibility and liability in this part of the Treaty on the protection of the marine environment which means China is liable under international law for its actions and in effect, the Philippines may take recourse within its legal system for prompt and adequate compensation or for other relief in respect of damage caused by pollution of the marine environment by these Chinese nationals or juridical entities that have committed the destruction of the marine environment.
On the various construction activities of China in the South China Sea, the Tribunal has this to say in para. 993 of the Award:
The Tribunal further finds that China has, through its island-building activities at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, Subi Reef and Mischief Reef, breached articles 192, 194(1), 194(5), 197, 123 and 206 of the Convention.
WHAT THIS MEANS : The multiple breaches held by the Tribunal subjects China to multiple avenues for liability under the Convention thus strengthening the hands of the Duterte Administration, if only DFA Secretary Yasay holds his tongue and will not sound too appeasing of Chinese concerns. These numerous violations of the provisions of the Convention can also be pursued by the Philippines at the regular meeting of the Parties to the UNCLOS, as part of any multi-pronged strategy to hold China into account for its egregious acts of disregarding its international obligations and in violating the sovereign rights of the Philippines under the Convention.
There were other findings of the Tribunal particularly in para. 1181 of the award which an ordinary reader may consider a multiple slap in the face made by the Tribunal for China’s intransigence in aggravating the tension in the South China Sea. The message that the Tribunal seems to be sending to China on its series of rebukes in this paragraph is that China is put on notice that if it continues on its bellicose attitude to the Tribunal, this will reflect badly in how the Tribunal will treat China’s stance in the expected multiplicity of suits that other countries in around South China Sea will surely initiate against China that takes off from the key points of this ruling, which is a landmark ruling in the interpretation of the key provisions of UNCLOS in this part of the world.
REFERENCE CITED :
Lee A. Kimball, (2001), International Ocean Governance: Using International Law and Organizations to Manage Marine Resources Sustainably. IUCN, Gland, Switzerland and Cambridge, UK xii+124pp