REPUBLIC OF THE PHILIPPINES

POLYTECHNIC UNIVERSITY OF THE PHILIPPINES

MARAGONDON ANNEX
ALFONSO CAMPUS

Politics, Governance and Citizenship

“West Philippine Sea”

Ansay, Allyson Charissa T.

BSA – 1

February 24, 2020

 GOING INTO THE HEART OF THE MATTER: THE WEST PHILIPPINE SEA
DISPUTE AND WHAT WE CAN DO

A.  INTRODUCTION

Aggressive is an understatement to describe how persistent China is in its pursuit over disputed
territory in the West Philippine Sea. These includes islands and land masses which the
Philippines also claims to be within its own territory. In this battle for sovereignty, does a small
Asian country like the Philippines stand a slim chance against a gargantuan state like China?

This paper aims to look into the remedies that the Philippines may take, and, finally, my two
cents on what the most realistic move our country can make in this situation to preserve its
sovereignty. But first, allow me to discuss the facts of this dispute in order for us to get a clearer
view of the problem.

B.  FACTUAL BACKGROUND

I.  History

The Spratly Islands is a constellation of small islands and coral reefs, existing just above or
below water that comprise the peaks of undersea mountains rising from the deep ocean floor.
Long known principally as a hazard to navigation and identified on nautical charts as the
“dangerous ground”, the Spratly Islands are the site of longstanding territorial disputes among
some of the littoral States of the South China Sea.

China is the biggest country claiming the islands under what they call the “nine-dashed line.”
The geographical extent of the claimed area has variously been represented by 9, 10, and 11-
dashed lines indicating the area China considers it has sovereignty over. The lines, somehow,
reflects what China foresees as their own version of history. Basically, the claims are really
rooted in its understanding that the territorial features of the South China Sea constitute territory
over which China has historically held sovereign jurisdiction – that is, “ancestral properties”
passed down from previous generations. In their position papers, China expresses that “Chinese
activities in the South China Sea date back over 2000 years ago” with China being “the first
country to discover, name, explore and exploit the resources of the South China Sea islands and
the first to continuously exercise sovereign powers over them.” 

Nevertheless, China has not precisely articulated – in terms familiar to sea lawyers or diplomats
– what its nine-dash line means. That ambiguity leaves plenty of room for possible over-
interpretation, particularly when coupled with some of the actions that China has taken in
response to perceived incursions within the area bounded by that line.

One of the earliest treaties used by a nation to assert a claim over the Spratlys is the Convention
Respecting the Delimitation of the Frontier Between China and Tonkin (Vietnam), signed by
China and France in 1887. The actual dispute over ownership of the Spratlys began 46 years
after the signing of the treaty, when France announced it had occupied a number of islands in the
South China Sea, including a number of the Spratlys. China was quick to react to the occupation
and lodged diplomatic protests in both 1933 and 1934. These protests were based on China’s
claim to “historic ties” to the islands and on the provisions of the 1887 treaty.’ However, the
Chinese government carried the dispute no further, as it was at this time becoming embroiled in a
much larger and catastrophic dispute with Japan, the Asian beginnings of what would become
the Second World War. An increasingly assertive Imperial Japan recognized and sought to utilize
the strategic value of the Nansha Islands (Spratlys) in particular. Japan occupied parts of the
archipelago in an attempt to control Southeast Asia and prepare for an invasion of Australia.
Upon Japan’s defeat in 1945, it was stripped of the area it had occupied in the South China Sea.

On December 1947 when Chiang Kai Shek’s Kuomintang Government adopted the nine-dashed
lines claim, which they embodied in the “Location Map of the South Sea Islands” two months
later. It showed a map with 11 dashes forming a U-shaped line covering almost the entire South
China Sea.

The Philippines entered the picture at roughly the same time as this. Tomas Cloma, a Filipino
lawyer, “discovered” the said island group. During the periods of 1947 and 1950, fishing boats
belonging to Tomas Cloma & Associates visited the said group of islands with the original
intention of putting up an ice plant and cannery and to explore the guano deposits in the islands
inhabited by birds.
In 1956, after another expedition on board PMI-IV, Atty. Cloma addressed a letter to then
Secretary of Foreign Affairs, Hon. Carlos P. Garcia, informing him that about 20 Filipino
citizens were undertaking survey and occupation work in the South China Sea outside of
Philippine waters and not within the jurisdiction of any country, and that the territory being
occupied was being claimed by him and his associates as citizens of the Philippines, based on the
rights of discovery and/or occupation, “open, public and adverse as against the whole world.” He
named the claimed area “Free Territory of Freedomland.”

By 1957, the Philippine government, through a letter from Vice President and Secretary of
Foreign Affairs Carlos P. Garcia addressed to Atty. Tomas Cloma expressed a “willingness of
the Philippine Government to extend diplomatic protection to the fullest extent to Tomas Cloma”
on the matter of Freedomland.”

But it took almost two decades before Cloma ceded, in favor of the Republic of the Philippines,
whatever rights his government had over Freedomland. Then, through P.D. 1596 (11 June 1978),
President Marcos created the Kalayaan Island Group as a municipality of the Province of
Palawan. But, Beijing already assumed that the status of the islands was seemingly
acknowledged as Chinese territory through U.S. requests to the Taiwanese authorities for
permission to perform aerial surveys in the region between 1957 and 1961.

II. The Start of the Issue

The dispute arose in 2013, when China released a new map adding a 10th dash on the eastern
side of Taiwan. In this new map, China calls the 10-dashed lines as its “national boundaries,”
indicating that all the islands and waters within the lines are its territory. In 2014, China’s Hainan
Province began enforcing regulations interpreting the “adjacent” and “relevant” waters as those
enclosed by the 10-dashed lines.

This move meant that the Philippines would lose about 80% of its EEZ facing the West
Philippine Sea, including part of the Malampaya gas field. This prompted our government to
initiate arbitration proceedings against China. 
 III.  Post-arbitration Situation

While the pronouncement is said to have been favorable to the Philippines, China continues its
advances. Just recently, news outlet CNBC reported that China has installed anti-ship cruise
missiles and surface-to-air missiles on three fortified outposts in the Spratly Islands. This
deployment follows the installation in April of jamming equipment that disrupts military
communications and radar systems – also on outposts in the Spratlys.

Today, six Asian nations, including the Philippines, assert claims of sovereignty over all or parts
of the Spratlys. Based on these assertions, journalists are using new and more ominous phrases to
describe the Spratlys: “the eye of a political typhoon” and “a potential Falklands.” With so much
at stake, the claimants to the Spratlys have pursued the sovereignty issue in various ways. All
except Brunei have taken steps to physically occupy numbers of islands.

Aside from this, China is currently building structures in Scarborough or Panatag

Shoal. Scarborough Shoal is a small ring of reefs that lies about 230 kilometres (140 miles) from
the Philippines and 650 kilometres from the nearest major Chinese land mass, the southern island
province of Hainan. China has built islands and airstrips on reefs and islets in the Spratlys
archipelago, a strategic location in the southern part of the sea.

This leads us to another question: What should be our next course of action?

C.  THE ARBITRAL AWARD: OUR LAW, OUR LEVERAGE

Before tackling the enforcement of the award, we must first know the mound that the Philippines
is standing on and how much ground it covers.

The arbitral award is strong evidence that may be utilized in our transactions. But, contrary to the
belief of many, the Philippines did not get an express award of ownership over the Spratly
Islands, mainly because of two reasons:

a.  First, to acquire jurisdiction, the arbitral tribunal had to avoid giving an award of such
tenor so that the rights of other claiming countries like Vietnam and Malaysia would not
be prejudiced; and
 b. Second, the language of our position paper shows that Philippines asked for the
declaration of the nine-dashed lines as invalid.

And we did get just that. The arbitral tribunal ruled that maritime areas of the South China Sea
encompassed by the relevant part of the ‘nine-dash line’ are contrary to the Convention and
without lawful effect. They exceed the geographic and substantive limits of China’s maritime
entitlements under the United Nations Convention on the Laws of the Seas (UNCLOS). They
further declared that the Convention superseded any historic rights, or other sovereign rights or
jurisdiction, in excess of the limits imposed therein.

Most of our submissions were also given due course and credence by the tribunal. The tribunal
ruled that no maritime feature claimed by China within 200 nautical miles of Mischief Reef or
Second Thomas Shoal constitutes a fully entitled island for the purposes of Article 121 of the
Convention and therefore, no maritime feature claimed by China within 200 nautical miles of
Mischief Reef or Second Thomas Shoal has the capacity to generate an entitlement to an
exclusive economic zone or continental shelf.

They also ruled that the Mischief Reef and Second Thomas Shoal are low-tide elevations which
does not generate entitlement to maritime zones of their own, hence, there are no overlapping
entitlements to an exclusive economic zone or continental shelf in the areas of Mischief Reef or
Second Thomas Shoal. There was also a declaration that Chinese fishermen violated the
sovereign rights of Filipinos to fish in the EEZ. Apart from that, they found these fishermen
violating a few conventions due to the capturing of endangered species.

The arbitral tribunal went to the extent of declaring that China has breached its obligations
pursuant to Articles 279, 296, and 300 of the Convention, as well as pursuant to general
international law, to from any measure capable of exercising a prejudicial effect in regard to the
execution of the decisions to be given and in general, not to allow any step of any kind to be
taken which might aggravate or extend the dispute during such time as dispute resolution
proceedings were ongoing.

Everything has been said and done, and while it may be true that the Philippines won the
arbitration case before the Permanent Court of Arbitration, the victory was pyrrhic. China lost
something, but we did not gain anything. As long as the dredging, land reclamation and
installation of alleged military settlements by China in these islands continue exponentially, we
have not won the case.

So how can we make the best out of the arbitral tribunal award? Here are my recommendations. 

D.  REMEDIES THAT THE PHILIPPINES MAY TAKE TO ENFORCE THE AWARD

I.  Request Other Claimants to Recognize the Award

I believe that, before spending our resources by appearing before the Internationcal Court of
Justice for any violation committed by China, we must adopt a diplomatic position by
encouraging talks. This implies talking with nearby countries asserting claims over the subject
matter. We cannot believe in Atty. Harry Roque’s remarks that the arbitral award is “self-
executory” and that the Philippines does not need to do anything to enforce it. Actions must be
taken to ensure that the award is given full effect. We can achieve this by asking neighboring
countries to recognize the award.

We will solicit cooperation from the national governments of claimants like Vietnam and
Malaysia, among others, to uphold the decision of the arbitral tribunal through external acts and
entering into treaties with the Philippines.  They can perform severance of diplomatic ties with
China, retortion, and reprisal. international law is a law of cooperation.

It sounds absurd at first, but this becomes an afterthought considering that the award does not
prejudice the rights of indispensable state-parties. All it said was that China cannot extend its
territory and exclusive-economic-zone on the basis of a void concept called the nine-dashed line.

Asking these countries to enforce the decision may work some magic not only for the Philippines
but also for these countries, as they may use the said decision should they decide to go toe-to-toe
with China before the ICJ.

However, this remedy is not my personal favorite. Tensions may escalate between China and
these countries. War may not be apparent. But when it happens, we will be at a disadvantage
against China’s military might, being the second placer in terms of military spending, even
posing a serious challenge to the forces of the United States of America.
Also, during a meeting of the Association of South East Asian Countries (ASEAN), where the
Philippines and China participated, movements to raise the ruling of the arbitral tribunal in
Philippines vs China in the communiqué was blocked out by Cambodia. This only shows the
political disarray and lack of unity in the Southeast Asian Region to support the arbitral award.
This leads me to my next suggestion.

II.  Further the Bilateral Talks with China on Joint Exploration

Of all the teachings that the great General Sun Tzu imparted, the art of the sheathed sword that
struck me the most. He said, “the skillful leader subdues the enemy’s troops without any
fighting; he captures their cities without laying siege to them; he overthrows their kingdom
without lengthy operations in the field. With his forces intact he disputes the mastery of the
empire, and thus, without losing a man, his triumph is complete.” This is the thrust of this next
humble suggestion.

We must continue our talks of joint exploration in the Spratly Islands with China, as suggested
by our President Rodrigo R. Duterte. During Duterte’s visit to Vietnam for the Asia-Pacific
Economic Cooperation, President Duterte brought up the territorial issue to President Xi which
led to an agreement between both parties to have a “safe passage for all” in the South China Sea. 

Just this year, officials from both countries announced that they will carry out several joint
initiatives in the disputed waters. This will include oil and gas research. Foreign Affairs
Secretary Alan Peter S. Cayetano even told the media that China was willing to enter into joint
explorations with the Philippines, but is focusing more on the research to know what resources
may be exploited therein. Despite concerns on its constitutionality, such move is constitutional
based on two things. First, economic rights within the Exclusive Economic Zones are divisible.
This means, we can give licenses and enter into joint ventures with other countries.

The second concept would the doctrine of sovereignty as an auto-limitation. Sovereignty,

according to Jellinek, “is the property of a state-force due to which it has the exclusive capacity
of legal self-determination and self-restriction.” This implies that sovereignty may be practiced
by a state in such a way that the state exercises little to no sovereignty over a certain territory.
By allowing the bilateral talks and joint ventures to prosper, we are actually beating the Chinese,
using their resources and technology in exploiting the Spratly Islands. In this sense, we assert
and exercise sovereignty over the Spratly Islands without rubbing this fact in Beijing’s face. Sun
Tzu quoted, “to fight and conquer in all your battles is not supreme excellence; supreme
excellence consists in breaking the enemy’s resistance without fighting. In the practical art of
war, the best thing of all is to take the enemy’s country whole and intact; to shatter and destroy it
is not so good. So, too, it is better to capture an army entire than to destroy it, to capture a
regiment, a detachment, or a company entire than to destroy them.” Besides, as established
earlier, the Chinese Army is far too big and strong compared to our armed forces. Applying the
the Neoliberalist theory of International Relations, states are geared towards gains and profit,
thus, relations are often dependent on whether the same would be profitable or not. Another
theory, the democratic peace theory, suggests that democratic states are generally hesitant to go
to war. These theories echo the tune that China will avoid going into war, especially if it sees that
it gains something out of the bilateral talks.

III. Ask the Assistance of the United Nations

We can seek the United Nations’ help to enforce the award where none of both the peaceful and
legally hostile methods are effective to give effect thereto. It may decide on its own authority to
take a hand in the settlement.

Generally, the task is principally addressed by the Security Council, but may be taken over by
the General Assembly under certain conditions.

The Security Council has jurisdiction to intervene in all disputes affecting international peace
and security, including disputes which, although coming under the domestic jurisdiction clause,
have been submitted to it by the parties to the settlement. Such disputes may be brought to it by
the Security Council itself, the General Assembly, the Secretary General, any member of the UN,
or any party to the dispute, such as the Philippines.

The Security Council will then recommend the appropriate measures, considering any amicable
measures already adopted by the parties, or that the dispute be referred to the ICJ. If these prove
to be unsuccessful, the Security Council may recommend such terms of settlement it deems
appropriate.
If the terms of settlement are rejected, then the Security Council may take either preventive or
enforcement action. Preventive actions are measures not involving the use of armed forces, such
as complete or partial interruption of economic relations, and of rail, sea, air, postal, telegraphic,
radio or other means of communications, and severance of diplomatic relations.

Enforcement actions are action by air, sea, or land forces necessary to maintain or restore
international peace and security, including demonstrations, blockades, and other operations by
air, sea, or land forces of the UN Members.

A caveat, however, is that China is one of the permanent members of the Security Council,
which means that they may stand in the way of the body taking cognizance of our cause. 

In a scenario where the Security Council, because of lack of unanimity, fails to exercise its
primary responsibility to maintain peace and security, the General Assembly shall consider the
matter immediately, with a view to making recommendations to the members for collective
measures, including the use of the states’ armed forces when necessary.

IV. Lobby a Case Before the International Court of Justice

When all else fail, the best action we can take diplomatically is to file a case before the ICJ. The
International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). It
was established in June 1945 by the Charter of the United Nations and began work in April 1946.

The ICJ may acquire jurisdiction over the dispute, especially if we frame it to be a violation of
the United Nations Convention on the Laws of the Seas (UNCLOS), Convention on Biological
diversity (CBD), and Convention on International Trade of Endangered Species (CITES).

This may place us in a good position to negotiate.In line with the  neoliberalists’ theory in
international relations, if there is a way to settle the dispute peacefully, China would most likely
take it. In this scenario, we can file a case before the ICJ but at the same time corner China to
consider settlement with the Philippines.

Before the ICJ, we can pray for the halting of the dredging and reclamation activities in the West
Philippine Sea, as well as enforcement of the award by virtue of the UNCLOS and CBD.
The United Nations Convention on the Law of the Sea (UNCLOS), also known as the Law of the
Sea Treaty, is the international agreement that defined the limits of the territorial seas of nations
and the areas in which they could exploit marine resources.

It also established the rules for the use of the high seas for international navigation, and outlined
the rights and responsibilities of nations in the protection of the marine environment, as well as
pave the way for the so-called Exclusive Economic Zones.

Apart from asking the ICJ to honor the award by the Permanent Court of Arbitration, we can also
ask that the ICJ do something about possible activities of China in Scarborough or Panatag
Shoal. “The Chinese have built the bunkers, the shelters, the radar and signalling systems,
intelligence facilities so it’s a matter of when they would decide to send in fighter aircraft, not if.
It will be beyond naive to think they’re not going to do it. They did not build all of this so they
can leave it empty,” Gregory Poling, Director of the Asia Maritime Transparency Initiative, said
in an interview with the ABSCBN News Center’s Early Edition.

But we must take note that Scarborough shoal was considered rocks that cannot sustain human
habitation or economic life of their own and accordingly shall have no exclusive economic zone
or continental shelf. Apart from that, the shoal, which the Philippines pertain to as Panatag
Shoal, is within its EEZ. And with the arbitral award voiding the nine-dashed line, China should
not be building there. But it is. This is clear breach of obligation to respect the exclusive
economic zone of the Philippines.

Meanwhile, we can also ask the ICJ to sanction China based on the Convention on Biological
Diversity, or CBD. The Convention on Biological Diversity (CBD) is an agreement between
countries based on natural and biological resources. The CBD has three main goals: to protect
biodiversity; to use biodiversity without destroying it; and, to share any benefits from genetic
diversity equally.

According to experts James Borton and Nguyen Chu Hoi, Beijing’s land reclamation poses a
catastrophic impact on the environment particularly the marine biodiversity and fishery in the
South China Sea.
Borton and Hoi emphasized that China’s activities are endangering fish stocks and threatening
some of the world’s most spectacular sea life over the long-term. They also noted that the
Chinese government is rapidly destroying thousands of coral reefs, seagrass beds, and other
shallow-water ecosystems.

Additionally, the authors pointed out that China’s aggressive action and “undefined ownership of
the region and its fish stocks” resulted to “destructive overfishing.” Its actions are also degrading
the marine ecosystem and threatening endangered species including sea turtles, sharks, and giant
clams. They noted that the fishery reserves in the South China Sea declined by 16% since 2010.

 If this is true, this is clear violation of the CBD. And this would be on top of the violation that
Chinese fishermen have already committed. 

All these factors and conventions may be useful to the Philippines in the long run before the
International Court of Justice.

E.  RECOMMENDATION

Of all the reliefs that were mentioned here, I opine that the best course of action to take is still to
further our talks with China. The repercussions of all the other reliefs that we may take are
disastrous.

First, it will affect the Association of Southeast Asian Nations (ASEAN). The ASEAN is
becoming an inter-regional institution filled with integrity because of the amount of respect,
effort, and trust that the member-states have exerted over the past few years. Former Foreign
Affairs Secretary Perfecto Yasay, despite criticism over why he did not insist on including the
discussion on the arbitral award in the recent communiqué, believes it was better than to
compromise the ASEAN. If we request these states to practice hostile methods in coercing China
to recognize the award and stop its activities in the West Philippine Sea, it may result in the
disintegration of the ASEAN.  Another issue would be China’s grip hold on trade relations with
ASEAN countries. In 2015 alone, China established its reputation as the region’s top trade
partner. Any retortion or reprisal may work against the state exercising the same against China.

The same logic may also apply in a situation where we raise the issue before the United Nations
or the ICJ. It can be remembered that Nicaragua won a case against UN Security Council
permanent member United States of America. The ruling is as old as our current constitution,
and yet no reparations have been shelved out by the US in favor of Nicaragua.

I am for a policy where we improve ties with China. I believe this would garner a result where
China would voluntarily cede the pieces of territory we are claiming eventually.  A sign of good
things to come when we improve our diplomatic ties with Beijing is the recent reassurance that
Beijing would spare the Panatag Shoal from their operations.

From what we have learned from studying the law, these states are similar to individuals. They
have different personalities and different interests. And I choose to believe that China, despite
being viewed as a beast bullying its way in the Southeast Asian Region, has an innate goodness.
That it is only doing what it is doing in line with its interest, in the same manner that we fight for
our sovereignty. Both China and the Philippines are doing what they are doing for the benefit of
their respective constituents. We must realize that.

Furthermore, I believe in our diplomats’ skills and competence in handling this situation. I know
they are best equipped with the knowledge and capability in developing a strong tie with China
and at the same time achieving the happy ending the Philippines wants to have on the disputed
islands.

In my opinion, the greatest weapon that the Philippines possesses, which may be used in order to
wear China down, is not the arbitral tribunal award we got from the PCA.  For me, the
Philippines’ true leverage is, as what Secretary Cayetano aptly quoted in our own language, our
heart.

Source: http://marlaw.com.ph/essay_writing_contest_2018/going-into-the-heart-of-the-matter-
the-west-philippine-sea-dispute-and-what-we-can-do/#_ftn1
 TIMELINE: The Philippines-China maritime dispute

(UPDATED) A timeline of events, starting from 2011, in the maritime dispute between China
and the Philippines

By RAPPLER.COM

Published 4:35 PM, July 12, 2016

MANILA, Philippines (UPDATED) – For years, the issue on who owns what in the West
Philippine Sea (South China Sea), a major maritime highway and a resource-rich area, has been
disputed by a number of countries.

One of the main issues is China's "historical" claim outlined by a 9-dash line, which gobbles up
large areas of the Exclusive Economic Zones (EEZs) of the Philippines, Vietnam, Malaysia,
Brunei, and Indonesia.

In the past years, China has asserted its sovereignty over islands within the Philippines' EEZ. In
1988, China seized Subi Reef, which lies within the continental shelf of the Philippines, by
erecting a radar structure and military facilities on the reef. In 1995, China seized Mischief
(Panganiban) Reef from the Philippines. Mischief Reef, located 125 nautical miles from
Palawan, is a low-tide elevation (LTE) within the Philippines' EEZ.

The territorial dispute between the Philippines and China flared up again after an incident at the
Quirino (Jackson) Atoll in 2011.

Here is a timeline of events, starting from 2011, in the maritime dispute between the two
countries 2011

February 25 | The Chinese frigate Dongguan fires 3 shots at Philippine fishing boats in the

vicinity of Quirino or Jackson Atoll. The shots are fired after the Chinese instructed the fishing
boats to leave, and one of those boats experienced trouble, its anchor removed.

March 28 | The Philippines bolsters its military presence along its western maritime border
following an incident with two Chinese boats which threatened to ram a survey ship conducting
seismic testing.
May 23 – A News5 report shows that military garrisons and outposts have been built by China in
6 reefs that are part of the Kalayaan Island Group.

June 4 – The Philippines' Department of Foreign Affairs begins referring to the body of water as
the "West Philippine Sea."

July 4 | China protests the Philippines' invitation of bids for the exploration of Area 3 and Area 4
in the Reed Bank and tells the Philippines to "refrain from any action that infringes on China's
sovereignty and sovereign rights."

October 20 | A Philippine naval ship rams a small Chinese fishing boat in disputed waters near
the Reed Bank. The Philippines promptly issues an apology to the Chinese embassy in Manila,
saying it was an accident.

2012

April 8 | 8 Chinese fishing boats venture into Scarborough Shoal and are spotted by a
surveillance plane from the Philippine Navy.

April 11 | Philippine surveillance aircraft identify Chinese fishing vessels at Scarborough Shoal,
causing the Philippine Navy to deploy its largest warship BRP Gregorio Del Pilar – newly
acquired from the United States – to the area. In response, China sends surveillance ships to warn
the Philippine Navy to leave the area, claimed by both countries, prompting a standoff.

April 12 | The Philippines pulls its biggest warship out of a standoff with Chinese vessels, but
the impasse is not resolved, with China sending a third ship to the disputed waters.

April 14 | 7 Chinese fishing vessels and 1 Marine survey ship leave Panatag Shoal allegedly with
an illegal harvest of endangered species

April 16 | The armed forces of the United States and the Philippines begin their annual Balikatan
military exercises on and around the island of Palawan in the South China Sea. Coinciding with
the territorial dispute, the drills prompt protests from China.

May 16 | A fishing ban at Panatag (Scarborough) Shoal by the governments of China and the
Philippines takes effect.
July 18 | China blocks Philippine ships and fishing vessels from the lagoon of the disputed
Panatag (Scarborough) Shoal by setting up barriers to its entry point.

July 13 | China's People's Liberation Army Navy (PLAN) missile frigate Dongguan runs
aground on Hasa Hasa (Half Moon) Shoal, a contested maritime territory just 60 nautical miles
from the Philippine island of Palawan.

June 21 | China's powerful Central Military Commission approves the formal establishment of
Sansha, a military garrison for the disputed South China Sea.

September 12 | Philippine President Benigno Aquino III promulgates Administrative Order No.
29, naming maritime areas on the western side of the Philippine archipelago as the West
Philippine Sea.

September 19 | Senator Antonio Trillanes IV emerges as a negotiator working independently for

Philippine President Benigno Aquino III in Beijing.

November 11 | Following a 3-month standoff between Philippine and Chinese vessels around
Panatag (Scarborough) Shoal, China informs the Philippines that Chinese coast guard
vessels will remain permanently on the shoal by developing Sansha.

November 22 | The Philippines protests the decision of China to print on its new e-passport the
image of the controversial 9-dash line showing its claim over virtually the whole South China
Sea. (2012 Rappler yearend article: PH, China and Scarborough Shoal)

2013

January 22 | The Philippines files an arbitration case against China at the United Nations-
backed Permanent Court of Arbitration (PCA) to settle the maritime dispute. The Philippines
invites China to join the proceedings.
February 19 | China officially rejects a Philippine move to bring the long-running territorial
issues over the South China Sea before the PCA, saying Manila's claim is "legally infirm and
carried unacceptable allegations against Beijing".

May 21 | 30 Chinese fishing vessels, including 3 Chinese government ships, are spotted for more
than a week at Ayungin Shoal, part of the Kalayaan Island Group off Palawan.

May 23 | The Philippines vows to "defend what is ours" as part of a standoff over a Chinese
warship circling a South China Sea reef, which is occupied by Filipino Marines.

June 7 | China releases a new map of China, adding a 10th dash on the eastern side of Taiwan. In
its 2013 map, China claims the 10-dash lines are its "national boundaries," without again
explaining the legal basis or giving the fixed coordinates for the dashes.

July 5 | Chinese ships return to Panatag (Scarborough) Shoal a few days after they left the area
off Zambales in the West Philippine Sea.

November | Super Typhoon Yolanda (Haiyan) sends home Chinese maritime and Navy
vessels at the Ayungin Reef in Palawan, while the half a dozen Filipino Marines on board a
rusting and grounded World War II-era ship are safe.

2014

January 1 | China imposes a fishing permit rule in the West Philippine Sea, defying the
objections of the US, the Philippines, and Vietnam.

January 27 | The Philippines protests the Chinese coast guard's alleged firing of a water
cannon at Filipino fishermen in the Philippines' Bajo de Masinloc.

February 26 | China offers the Philippines incentives such as the mutual withdrawal of ships
from the disputed Panatag (Scarborough) Shoal.

March 10 | The Philippine Department of National Defense confirms that two Philippine ships
are expelled by the Chinese coast guard from Ayungin Shoal in the Spratly Islands.

March | A Philippine government vessel evades two Chinese coast guard ships trying to block
its path to deliver food, water, and other troops to a military outpost on the shoal.
March 29 | The Philippines slams China after two of its ships harassed a Philippine vessel in the
disputed Ayungin Shoal, a day before the Philippines files a pleading at the Permanent Court of
Arbitration in The Hague.

March 30 | The Philippines submits a 4,000-page pleading or memorial to the Permanent Court
of Arbitration in The Hague in its case against China. The tribunal requests China to submit a
counter-memorial, but China rejects this request.

April 28 | The Philippines signs the Enhanced Defense Cooperation Agreement (EDCA) with
the US, which allows for enhanced "rotational presence" of US military forces and for US
supplies to be stationed at military bases in the Philippines for a period of 10 years.

May 6 | The Philippines charges 11 arrested Chinese fishermen for illegal poaching at another
disputed shoal, and publicly accuses China of carrying out reclamation work ostensibly done to
prepare for the construction of an airstrip on Johnson South Reef.

May 15 | The Philippines releases photos of China's "destabilizing" moves in the West

Philippine Sea (South China Sea) showing suspected airstrip construction on the Mabini
(Johnson) Reef.

June 3 | The arbitral tribunal handling the maritime dispute between Manila and Beijing orders
China to respond to the case filed by the Philippines not later than December 15, 2014.

June 25 | The Philippines criticizes China for publishing a new map that expands Beijing's claim
over the West Philippine Sea by using a 10-dash line as demarcation.

August 17 | The Philippines slams China for conducting regular "sovereignty patrols" in the
West Philippine Sea by deploying ships with the sole purpose of staking Beijing's claim in the
disputed waters.

October 7 | Beijing completes a runway for military aircraft on a West Philippine Sea island also
claimed by Vietnam, state-run media report, as it asserts its territorial claims in the area.

December 5 | The United States State Department releases a report concluding that China's 9-
dash-line claim does not follow the international law of the sea.
December 7 | China issues a position paper accusing the Philippines of violating and abusing
international law by filing a legal case it rejected on technical grounds.

2015

April 20 | China reportedly starts reclamation and transforms the Panganiban (Mischief) Reef
into a forward naval station. According to UNCLOS, artificial islands do not afford the
occupying nation territorial waters.

July 7 to 13 | The Permanent Court of Arbitration at The Hague hears the Philippines' oral
arguments on whether the tribunal has the right to hear its case against China. During these
hearings, "all Chinese arguments on jurisdiction and admissibility… were properly considered."

September 20 | China completes a 3,125-meter runway on Fiery Cross Reef which is also
claimed by the Philippines as Kagitingan Reef.

October 29 | The PCA rejects China's strongest argument against the Philippines: that the
tribunal has no right to hear the Philippines' case over the West Philippine Sea.

November 24 | China reaffirms that it will "not accept" a judicial arbitration on the West
Philippine Sea.

November 24 to 30 | The tribunal conducts a hearing on the merits of the Philippines' case. The
tribunal gives the Philippines and China until December 9, 2015, "to review and submit
corrections to the transcript of the hearing."

2016

January 7 | China reportedly builds a submarine harbor at Panganiban (Mischief) Reef located
in the West Philippine Sea near Palawan.

January 13 | China finishes construction on a second 10,000-ton China Coast Guard (CCG)
cutter destined for patrols in the South China Sea.

February 19 | The Philippines slams China over reports that Beijing deployed missiles on an
island in the disputed area.
March 18 | The United States said it fears that China is planning to build an artificial island in
the disputed Panatag Shoal (Scarborough Shoal).

March 19 | The Philippines and the United States agree on 5 local bases (Antonio Bautista Air
Base in Palawan, Basa Air Base in Pampanga, Fort Magsaysay in Nueva Ecija, Lumbia Air Base
in Cagayan de Oro, and Mactan-Benito Ebuen Air Base in Cebu) where US troops will be
allowed to build facilities.

April 14 | The US launches joint South China Sea naval patrols with the Philippines, escalating
its presence as it accused Beijing of "militarizing" the region.

May 10 | China's navy launches annual war drills in the South China Sea with one of its most
advanced warships. The exercises include simulations for breaking an enemy blockade and
reconnaissance drills with submarine forces.

May 23 | A Chinese government bureau says it is planning to build a base station in the Spratly
Islands to aid fishing boats in trouble and shorten the distance they need to travel.

June 14 | Countries in Southeast Asia say they have "serious concerns" over recent events in the
disputed South China Sea, an unusually strongly worded communique issued by their foreign
ministers in China. The statement, however, is later retracted due to the alleged withdrawal of
Laos and Cambodia.

June 16 | US fighter planes arrive in the Philippines for a training mission and operations to
ensure access to the disputed South China Sea.

June 29 | The PCA confirms that it will issue its ruling on the Philippines' case against China
on July 12.

June 30 | Beijing says it will reject any ruling by an international tribunal in a contentious case
brought by the Philippines over the West Philippine Sea.

July 12 | The PCA announces that an arbitral tribunal has ruled in favor of the Philippines in its
historic case against China.
Source: https://www.rappler.com/world/regions/asia-pacific/139392-timeline-west-philippine-
sea-dispute

THE RULE OF LAW IN THE WEST PHILIPPINE SEA DISPUTE

(Publication Version)

Speech delivered before the Philippine Bar Association

29 August 2013
 Justice Antonio T. Carpio

In the 17th century, England, Spain and Portugal, the naval superpowers of the day, claimed
ownership of the oceans and seas they discovered, and enforced their claims through the barrel of
the naval cannon. In 1609, Hugo Grotius, the father of international law, argued in his classic
Mare Liberum (The Free Sea) that the oceans and seas belonged to all mankind and no nation
could claim them as its own. After over a century of battle between those who insisted on
ownership of the oceans and seas and those who fought for freedom of the oceans and seas for all
mankind, Grotius’ idea eventually prevailed and became part of international law. It also laid the
foundation for the law of the sea.

In this the 21st century, China, Asia’s rising regional naval power, is claiming ownership by
historical right to almost 90% of the South China Sea. China’s claim, represented by its 9-dashed
line map, echoes the 17th century maritime claims of the naval superpowers of that era. China is
enforcing its claim through its rapidly growing naval fleet. If left to stand, China’s claim will
bring the world back to the turbulent maritime era 400 years ago, when nations claimed the
oceans and seas and maritime claims were settled through the naval cannon, not through the Rule
of Law.

What is the dispute in the West Philippine Sea?

China claims “indisputable sovereignty” over all the waters, islands, reefs, rocks, seabed,
minerals, and living and non-living resources falling within its 9-dashed line claim in the South
China Sea. The 9-dashed line area comprises almost 90% of the total area of the South China
Sea. China’s 9-dashed line claim encroaches on 80% of the Philippines’ 200-nm exclusive
economic zone (EEZ) and 100% of its 150-nm extended continental self (ECS) facing the South
China Sea – what the Philippines calls the West Philippines Sea. China’s 9-dashed line claim has
similar effects on the EEZs and ECSs of Vietnam, Malaysia, Brunei and Indonesia facing the
South China Sea. The countries most adversely affected by China’s 9-dashed line claim, in terms
of the size of the area encroached by the 9-dashed line claim, are the Philippines, Vietnam,
Malaysia, Brunei and Indonesia, in that order.

Is there an international law that governs the resolution of the West Philippine Sea
dispute?
The 1982 United Nations Convention on the Law of the Sea, or UNCLOS, which entered into
force in 1994, governs the conflicting maritime claims in the South China Sea. All the claimant
states in the South China Sea dispute, including the Philippines and China, have ratified
UNCLOS. UNCLOS is the Constitution for the world’s oceans and seas. UNCLOS codified the
then existing customary international law of the sea, created novel entitlements in favor of
coastal and landlocked states, and adopted a compulsory dispute settlement mechanism to insure
that there is a final authoritative body to interpret and apply its provisions.

UNCLOS has been ratified by 165 states, comprising an overwhelming majority of the members
of the United Nations. For this reason, even the novel maritime entitlements under UNCLOS in
favor of coastal and land-locked states, which maritime entitlements have been consistently
affirmed by international tribunals since 1994, now form part of customary international law.
Even non-signatory states, as well as signatory states that later withdraw from UNCLOS, are
bound by these maritime entitlements.

UNCLOS governs only maritime entitlements, maritime space and maritime disputes. The
maritime entitlements of states – the territorial sea, EEZ and ECS and their resources – emanate
and are drawn only from baselines on continental land or islands. UNCLOS provides for a
compulsory dispute settlement mechanism, subject to certain types of disputes that states are
allowed to exclude from compulsory arbitration. All states that ratified UNCLOS bound
themselves in advance to this compulsory dispute settlement mechanism. The Philippines and
China, having ratified UNCLOS, are bound by this compulsory dispute settlement mechanism.

UNCLOS does not govern territorial sovereignty disputes over land or land features in the
oceans and seas. Territorial sovereignty disputes over land or land features – that is, islands, reefs
and rocks above water at high tide – are governed by the rules and principles of general
international law. An international tribunal can acquire jurisdiction over territorial sovereignty
disputes only with the consent of the states that are parties to the particular dispute, in the
absence of a treaty binding them in advance to the jurisdiction of such tribunal. There is no such
treaty between the Philippines and China.

In short, any maritime dispute between the Philippines and China is subject to compulsory
arbitration under UNCLOS, except for the disputes that China has excluded from compulsory
arbitration in accordance with UNCLOS. In contrast, the territorial sovereignty dispute between
the Philippines and China over land and land features is not subject to compulsory arbitration.

What is the right or entitlement of the Philippines under international law that is being
violated by China?

Under UNCLOS, every coastal state is entitled as a matter of international law to a 200-nm EEZ,
plus an additional 150-nm ECS where applicable, drawn from baselines on continental land or
islands. In lieu of this additional 150-nm ECS, a coastal state may adopt an ECS of up to 100-nm
seaward from the 2,500 meter isobath. This legal maritime entitlement is one of the most
important reasons why developing coastal states approved UNCLOS. Without this important
legal maritime entitlement there might have been no UNCLOS. In case of overlapping EEZs or
ECSs, the opposing or adjacent coastal states shall negotiate in good faith an equitable maritime
boundary.

Also, land-locked states joined UNCLOS for two reasons: first, the area of the sea beyond the
EEZ of a coastal state, called the high seas, is open to fishing for all states, whether coastal or
land-locked; and second, the seabed and its minerals beyond the ECS of a coastal state is
declared the common heritage of mankind – belonging to all states, whether coastal or land-
locked.

China’s 9-dashed line claim negates, and thus violates, the Philippines’ legal entitlement under
UNCLOS to an EEZ and ECS. China’s 9-dashed line claim also negates, and thus violates, the
right of all states on this planet, including the Philippines, to fish in the high seas or the area
beyond the EEZ of a coastal state. China’s 9-dashed line claim furthermore negates, and thus
violates, the right of all states on this planet, including the Philippines, to the seabed and its
mineral resources beyond the ECS of a coastal state. Finally, China’s claim of “indisputable
sovereignty” to areas of the South China Sea beyond the EEZs of coastal states violates the
prohibition under UNCLOS against states subjecting the high seas to their sovereignty.

What is the basis of China’s 9-dashed line claim?

China anchors its 9-dashed line claim on so-called “historical rights.” However, China admits
that its 9-dashed line claim was first included in an official Chinese map only in 1947 during the
Kuomintang Government. In 1998, China enacted its Exclusive Economic Zone and Continental
Shelf Law to affirm its sovereign rights and jurisdiction over its EEZ and ECS under UNCLOS.
A provision in this 1998 law states, “this Act shall not affect the historical rights of the People’s
Republic of China.” This 1998 law is the first official reference in a Chinese law to China’s
“historical rights” to maritime areas outside its EEZ and ECS. However, the rights of a state
under international law cannot be enlarged by its domestic legislation, but only by customary
international law or by a convention like UNCLOS.

China’s 9-dashed line claim was originally represented by 11 dashes in the 1947 Chinese map,
then reduced unilaterally in 1950 to 9 dashes without explanation after the Communists ousted
the Kuomintang from the mainland. In January this year China released a new official map
adding a 10th dash on the eastern side of Taiwan. China’s claim was ambiguous from the start as
China failed to explain its scope until January this year. Moreover, until now China has never
revealed the exact coordinates of its 9 or 10-dashed line claim, and neither has China explained
the basis under international law for its claim.

China formally announced to the international community its claim only in 2009 when it
submitted to the United Nations a map depicting its 9-dashed line claim. This map, showing no
coordinates of the 9 dashes, was appended to a note verbale China lodged to protest Vietnam and
Malaysia’s joint submission of their ECSs. With this map, China claimed “indisputable
sovereignty” over the islands and “adjacent waters” within the enclosed area, as well as
sovereign right and jurisdiction over the “relevant waters,” seabed and subsoil within the
enclosed area. China did not explain the meaning of the words “adjacent waters” and “relevant
waters,” which are not used in UNCLOS. China thus failed to clarify the ambiguity of its 9-
dashed line claim. China’s submission of its 9-dashed line claim to the United Nations was, of
course, promptly protested by other claimant states.

China has always been ambiguous about the scope of its 9-dashed line claim – whether it is
claiming only the islands within the 9-dashed line area, or whether it is also claiming all the
waters and resources within the 9-dashed line area beyond the applicable maritime zones. Even
Chinese scholars on the law of the sea are divided as to whether the 9-dashed line claim includes
all the waters within the area, comprising almost 90% of the South China Sea. China’s
incumbent judge in the International Tribunal for the Law of the Sea, Zhiguo Gao, wrote in 1994
that the 9 dashes merely identify the islands owned by China within the enclosed area and do not
represent a claim to all the waters and resources within the enclosed area.

In January this year China appears to have clarified at least the scope of its claim by issuing a
new official map describing 10 dashes on the map as its “national boundaries.” By using the term
“national boundaries,” China is apparently claiming everything within these boundaries as part
of its national territory. If so, China has clarified only this year that it is claiming all the waters,
islands, reefs, rocks, living and non-living resources, the seabed and the minerals found within
the previous 9, now 10-dashed line area. This is consistent with the aggressive actions of Chinese
surveillance ships in harassing survey vessels of Vietnam and the Philippines exploring for oil
and gas in their own EEZs that overlap the waters enclosed by the 9-dashed lines, even if the
waters are outside the maritime zones of any disputed island and outside the EEZ or ECS of
China.

Still, China has not explained the basis under international law of its “historical rights” to the 9-
dashed line claim. China has not released an official paper or document explaining such
“historical rights,” and the justification for such “historical rights” under international law. China
has refused to defend its 9-dashed line claim before an international tribunal on the law of the
sea. However, on its face alone the 9-dashed line claim has absolutely no basis under
international law.

First, UNCLOS extinguished all historical rights of other states within the 200-nm EEZ of the
adjacent coastal state. That is why this 200-nm zone is called “exclusive” – no state other than
the adjacent coastal state can exploit economically its resources. Fishing rights that other states
historically enjoyed within the EEZ of the adjacent coastal state automatically terminated upon
the effectivity of UNCLOS. Moreover, UNCLOS prohibits states from making any reservation
or exception to UNCLOS unless expressly allowed by UNCLOS. Any reservation of claims to
“historical rights” over the EEZ or ECS of another coastal state is prohibited because UNCLOS
does not expressly allow a state to claim “historical rights” to the EEZ or ECS of another state.
In short, UNCLOS does not recognize “historical rights” as basis for claiming the EEZs or ECSs
of other states.
The few cases where the waters beyond the territorial sea were still treated as internal waters
because of “historical rights” all happened before the advent of UNCLOS, when the breadth of
the territorial sea was still three miles. These cases involved deeply indented bays, like the
Chesapeake Bay bordering Maryland and Virginia in the United States, or deeply indented gulfs
like the Gulf of Fonseca in Central America bordering Honduras, Nicaragua, and El Salvador.
These bays and gulfs are adjacent to the coast and have long been accepted by other states as
internal waters. With UNCLOS, the territorial sea has been extended to 12-nm, and a 200-nm
EEZ has been granted to coastal states, removing the need for a coastal state to invoke “historical
rights” to exclude other states from its deeply indented bays or gulfs. In none of these few cases
has “historical rights” been invoked to claim a non-adjacent area beyond 200-nm from the coast,
or to claim an entire or nearly entire sea bordering several states.

Second, under UNCLOS the term “historic bays” refers to internal waters, and the term “historic
titles” refers to territorial seas. A state can claim “historical rights” over waters only as part of its
internal waters or territorial sea. There is no freedom of navigation and no freedom of over-flight
in internal waters or territorial sea. There is a right of innocent passage for ships in the territorial
sea.

The South China Sea, beyond the 12-nm territorial sea of coastal states, has never been
considered as the internal waters or territorial sea of any state. Since time immemorial, ships of
all nations have exercised freedom of navigation in the South China Sea. Likewise, since the
time airplanes flew across the seas, aircraft of all nations have exercised freedom of over-flight
over the South China Sea. If the South China were the internal waters or territorial sea of China,
then no state could have exercised freedom of navigation and freedom of over-flight over the
South China Sea. Indeed, China has stated that there is freedom of navigation and freedom of
over-flight in the South China Sea, an admission that the South China Sea does not constitute its
internal waters or territorial sea.

China’s 1992 Law on Territorial Sea and Contiguous Zone declares a 12-nm territorial sea
measured from its baselines. Since China’s own law limits its territorial sea to 12-nm from its
baselines, China cannot claim the waters within the 9-dashed line map as its territorial sea. The
waters within the 9-dashed line claim cannot also be considered internal waters of any state
because they are in the open sea bordering seven coastal states. The South China Sea falls under
the UNCLOS definition of a semi-enclosed sea because it consists “entirely or primarily of the
territorial seas and EEZs of two or more States.”

Since the time that Grotius’ idea of the free sea became part of international law, no nation could
appropriate or claim “indisputable sovereignty” to any part of the oceans and seas beyond its
territorial sea or beyond what other states recognize as its internal waters. This is reflected in
UNCLOS, which only grants a coastal state specified sovereign rights and jurisdiction over its
EEZ and ECS, and expressly prohibits any coastal state from subjecting the high seas to its
sovereignty.

Thus, the waters enclosed by China’s 9-dashed line claim are neither internal waters nor
territorial sea of China. The waters cannot also form part of China’s EEZ or ECS because they
are not drawn from China’s baselines and are beyond the limits of China’s EEZ and ECS as
drawn from China’s baselines. In short, China’s claim to the waters enclosed by the 9-dashed
line claim does not fall under any of the maritime zones recognized by international law or
UNCLOS – namely, internal waters, territorial sea, EEZ, and ECS – that could be claimed by a
coastal state. Only China seems to know under what maritime zone the 9-dashed line waters fall,
but China is not telling the world except to claim “indisputable sovereignty” over such waters by
“historical rights.”

Third, under the general principles and rules of international law, a claim of “historical rights” to
internal waters or territorial sea must satisfy four conditions. One, the state must formally
announce to the international community such claim to internal waters or territorial sea, clearly
specifying the nature and scope of such claim. Two, the state must exercise effective authority,
that is, sovereignty, over the waters it claims as its own internal waters or territorial sea. Three,
such exercise of effective authority must be continuous over a substantial period of time. Four,
other states must recognize, tolerate or acquiesce in to the exercise of such authority.

China fails to comply with any of these four conditions. China officially notified the world of its
9-dashed line claim only in 2009. Not a single country in the world recognizes, respects, tolerates
or acquiesces in to China’s 9-dashed line claim. China has never effectively enforced its 9-
dashed line claim from 1947 to 1994 when UNCLOS took effect, and even after 1994 up to the
present. Thus, under the general principles and rules of international law, China cannot claim
“historical rights” that pre-dated UNCLOS. Even assuming, for the sake of argument, that China
has such “historical rights,” the entry into force of UNCLOS in 1994 extinguished such rights.
Under UNCLOS, a state cannot claim any “historical right” to the EEZ or ECS of another state.

In the 2002 Asean-China Declaration on the Conduct of Parties in the South China Sea, China
agreed that all claimant states shall resolve their disputes “in accordance with universally
recognized principles of international law, including the 1982 UN Convention on the Law of the
Sea.” China did not state that “historical rights,” or any other circumstance, should be a factor in
resolving the disputes. China thus agreed that only international law, in particular UNCLOS,
should govern the resolution of the disputes in the South China Sea.

Clearly, there is nothing “historical” or “right” about China’s 9-dashed line claim because it is
fairly recent, without fixed coordinates, ambiguous even to its own legal scholars, inconsistent
with its own national law, contrary to the general principles and rules of international law,
contrary to UNCLOS, contrary to the Asean-China DOC, and still evolving as recently as this
year. Not a single state in the world recognizes, tolerates or acquiesces in to China’s 9-dashed
line claim. By asserting their own claims to parts of the waters enclosed by China’s 9-dashed line
claim, the other claimant states actually oppose and contest China’s 9-dashed line claim.

What is China’s offer to jointly develop the disputed areas?

China has been dangling to the Philippines and other claimant states its offer to jointly develop
the disputed areas while shelving the sovereignty issues. This joint development offer originated
from Deng Xiaoping’s three-part guideline: sovereignty belongs to China, shelve the disputes,
and pursue joint development. There are at least three problems to this offer.

First, China wants to jointly develop the EEZ of the Philippines but refuses to jointly develop
China’s own EEZ. In effect, China is saying to the Philippines, what is exclusively your
economic zone belongs to both of us, but what is exclusively our economic zone is ours alone,
and if you do not agree, our warships will be there to prevent you from developing your
exclusive economic zone.

Second, as explained by Chinese officials and scholars, China’s offer of joint development is
subject to the precondition that participating coastal states must first expressly recognize China’s
“indisputable sovereignty” under its 9-dashed line claim. This precondition effectively means
that once a state agrees to joint development, it must not only vacate any island it possesses in
the Spratlys and turn over the same to China, it must also renounce any maritime claim within
the 9-dashed line area. This precondition demanded by China is obviously inconsistent with its
offer to shelve the sovereignty issue.

Third, if the Philippines agrees to China’s joint development offer, the Philippines will in effect
give up its exclusive “sovereign right and jurisdiction” to exploit all the living and non-living
resources in its own EEZ. The Philippines will also give up its exclusive right to exploit the
mineral resources in its own ECS. The bottom line is that China’s joint development offer will
negate the maritime entitlements of the Philippines under UNCLOS. This is constitutionally
impermissible because our 1987 Constitution mandates, “The State shall protect the nation’s
marine wealth in its archipelagic waters, territorial sea and exclusive economic zone, and reserve
its use and enjoyment exclusively to Filipino citizens.”

Naturally, not a single claimant state has agreed to China’s joint development offer. China’s
response to the negative reaction of other claimant states to its joint development offer is to
harass the ships of other claimant states exploring for oil and gas within their own EEZs. In May
2011, Vietnam protested that Chinese surveillance vessels cut off the cables of a Vietnamese
ship surveying within Vietnam’s own EEZ. In December 2012, the Vietnamese again protested
another cable-cutting act committed by two Chinese vessels on a Vietnamese ship surveying
within Vietnam’s EEZ. In March 2011, the Philippines also protested that Chinese surveillance
vessels menacingly circled a Philippine-commissioned ship surveying in the Reed Bank, which
is within the Philippines’ EEZ.

These harassment tactics by the Chinese have prevented Vietnam and the Philippines from
exploiting the resources within their own EEZs, an exclusive right guaranteed to them under
UNCLOS. These harassment tactics only confirm that in practice China is claiming all the waters
and resources within its 9-dashed line map, even if the waters and resources fall within the EEZ
of other coastal states that have no overlapping EEZs with China.

The only joint development that is feasible in the Spratlys is for all claimant states to respect
each others’ EEZs as guaranteed by UNCLOS, and to jointly develop the disputed areas beyond
these EEZs. In the absence of overlapping EEZs in the Spratlys, the EEZ of a coastal state can
never be a disputed area because UNCLOS, to which all claimant states in the Spratlys are
parties, guarantees such EEZ to every coastal state. Beyond the EEZs, the extended continental
shelves of claimant states in the Spratlys overlap and can be considered disputed areas, and thus
open to joint development. This kind of joint development, with no preconditions, is friendly,
fair, practical and durable because it is in accordance with UNCLOS. There is no bullying in this
kind of joint development, and no state illegally appropriates the EEZ of another state.

Why did the Philippines file an arbitration case against China?

Following the tense standoff in April and May 2012 between Chinese and Philippines vessels in
Scarborough Shoal, the Philippines withdrew in June 2012 its vessels from Scarborough Shoal
on the understanding of a mutual withdrawal of vessels by both China and the Philippines. The
Chinese, however, reneged on their commitment and refused to withdraw their vessels. Then in
November 2012, China informed the Philippines that the Chinese surveillance vessels would
remain permanently stationed in Scarborough Shoal. China was now in permanent occupation of
Scarborough Shoal.

Scarborough Shoal is a submerged reef except for six small rocks that protrude not more than
three meters above water at high tide. The width of the largest rock above water at high tide is
only a few meters. The Philippines built a lighthouse on one of the rocks in 1965, and another
lighthouse in 1991. From the 1960s to the 1980s Scarborough Shoal was a bombing range of
American and Philippine Air force planes practicing bombing runs. Prior to such practice
bombings, American and Philippine authorities would give worldwide notices to mariners to
avoid Scarborough Shoal. No protest was ever heard from China.

Scarborough Shoal appeared in the first map of the Philippines issued under the American
regime in 1899. Earlier during the Spanish regime, Scarborough Shoal, at that time called
Panacot, appeared in several Spanish maps of the Philippines starting at least in the 1734 Murillo
map. While Scarborough Shoal was outside the lines drawn in the 1898 Treaty of Paris, Spain
and the United States two years later entered into the 1900 Treaty of Washington clarifying that
islands to which Spain had “title or claim of title” were also ceded to the United States even
though outside the lines drawn in the Treaty of Paris. Thus, Spain ceded Scarborough Shoal to
the United States under the 1900 Treaty of Washington. Under the 1935 Constitution, the
territories ceded by Spain to the United States under the Treaty of Paris and the Treaty of
Washington form part of the Philippine national territory. Under the 2009 amendment to the
Philippine Baselines Law, Scarborough Shoal is declared as a Regime of Islands for purposes of
determining its baselines.

The Philippines had five options in responding to the Chinese occupation of Scarborough Shoal.
First was to send naval vessels and marines to retake Scarborough Shoal. This was not feasible
because of the superior Chinese naval forces. Second was to file a diplomatic protest with China.
This was useless because China would simply ignore the protest – as it ignored the protest of the
Philippines after China seized Mischief Reef 17 years earlier in 1995. Third was to ask Asean to
lobby China to withdraw from Scarborough Shoal. This was not realistic because some Asean
countries are hesitant to offend China. Besides, Asean countries do not take sides on territorial
disputes. Fourth was to take the matter to the United Nations Security Council. This was also
futile since China has a veto power in the Security Council. The fifth and only viable option was
to bring the matter to an international tribunal for arbitration, where the playing field would be
level and military power would not count, but only the rule of law would govern. Incidentally,
the Philippines could also not invoke the Phil-U.S. Mutual Defense Treaty since the U.S. has
made it clear that the islands, reefs and rocks in the South China Sea are outside the scope of the
treaty.

With China’s occupation of Scarborough Shoal, the Philippines had no other recourse but to go
to an Annex VII arbitral tribunal under UNCLOS. It was the only sensible and effective response
that the Philippines could offer. Otherwise, nothing would stop China from occupying another
rock, reef, or shoal within its 9-dashed line claim even if within the EEZ of the Philippines.

The Chinese occupation of Scarborough Shoal is an invasion of Philippine territory, giving rise
to a territorial sovereignty dispute. However, the Philippines could not bring China to
compulsory arbitration on a territorial sovereignty dispute without China’s consent. That is why
the Philippines decided to do the next best thing – bring China to compulsory arbitration on the
maritime aspect of China’s 9-dashed line claim. If China’s 9-dashed line claim is invalidated,
then China will lose its excessive claim to the waters of the South China Sea. More significantly,
China’s basis for claiming territorial sovereignty over the islands within its 9-dashed line claim
will weaken considerably since the 9-dashed line claim is central to China’s historical claim to
territorial sovereignty over the islands within the enclosed area.

Is China’s consent required for the compulsory arbitration?

When a state ratifies UNCLOS, the state consents in advance to be bound by the compulsory
dispute settlement mechanism under UNCLOS on “any dispute concerning the interpretation or
application” of the provisions of UNCLOS. However, a state is allowed to opt out of compulsory
arbitration for certain matters, like disputes on maritime boundary delimitation. In 1996, ten
years after ratifying UNCLOS, China opted out of compulsory arbitration for certain types of
disputes, including any dispute on maritime boundary delimitation. A state remains bound to
compulsory arbitration with respect to the interpretation or application of UNCLOS on disputes
that the state has not excluded, or cannot exclude, from compulsory arbitration.

Thus, when an actual dispute arises involving the interpretation or application of UNCLOS, a
signatory state is already deemed to have given its consent to compulsory arbitration, unless the
dispute is one that is properly excluded from compulsory arbitration under UNCLOS.

The Philippines’ arbitration case against China involves the interpretation or application of
UNCLOS on three main issues. The first issue is whether China’s 9-dashed line claim can negate
the grant under UNCLOS of an EEZ to the Philippines. This issue does not involve any maritime
boundary delimitation because there are no overlapping EEZs between China and the
Philippines, certainly not in the island of Luzon facing the West Philippine Sea. Scarborough
Shoal, whatever state may have sovereignty over it, does not generate an EEZ because only
small rocks are found there. Admittedly, those rocks are not islands capable of sustaining human
habitation or economic life of their own, which is the condition for an island to have an EEZ.

In the Spratlys there is no island capable of sustaining human habitation or economic life of its
own. This is the position of the Philippines, Vietnam, Malaysia and Brunei. Thus, there are also
no overlapping EEZs between the Philippines and other claimant states in the Spratlys. However,
since China claims that islands in the Spratlys generate EEZs, the second issue is whether an
island in the Spratlys actually generates an EEZ. The resolution of this issue does not involve
any maritime boundary delimitation. This issue is an inquiry into whether an island in the
Spratlys satisfies the UNCLOS requirement of being able to “sustain human habitation or
economic life of [its] own.” If none of the islands satisfies this requirement, then there are no
overlapping EEZs in the Spratlys and hence no maritime boundary delimitation is involved. If an
island satisfies this requirement, and thus generates an EEZ, then the tribunal will so declare but
will proceed no further without the consent of China because the issue will then involve
overlapping EEZs requiring maritime boundary delimitation for its resolution.

In the event that the arbitral tribunal rules that an island in the Spratlys generates an EEZ, the
Philippines can bring China to compulsory conciliation under an UNCLOS conciliation
commission. Under UNCLOS, a state that opts out of compulsory arbitration involving maritime
boundary delimitation shall nevertheless submit to compulsory conciliation. The conciliation
commission will adjust the median line of the overlapping EEZs, taking into account Palawan’s
more than 600-nm coastline as against the less than 1-nm coastline of the biggest island in the
Spratlys. Under prevailing law of the sea jurisprudence, such huge disproportion in the opposing
coastlines will entitle the island in the Spratlys to an EEZ either only seaward away from
Palawan, or to a proportionally minuscule EEZ facing Palawan, if at all. Although the report of
the conciliation commission is not binding on China, China is obligated under UNCLOS to
negotiate in good faith with the Philippines based on the report of the conciliation commission.

The third issue is whether China can appropriate and construct artificial islands on low-tide
elevations (LTEs) within the Philippines’ EEZ, like the massive structure China built on
Mischief Reef, which China officially describes as a shelter for Chinese fishermen. LTEs are
rocks above water at low tide but under water at high tide. LTEs beyond the territorial sea of a
coastal state do not generate any maritime zone, not even a territorial sea. LTEs beyond the
territorial sea are not subject to appropriation and to claims of territorial sovereignty because
they are not land but part of the maritime zone. Under UNCLOS, only the adjacent coastal state
can build artificial islands within its EEZ.

A corollary issue raised by the Philippines is whether China can subject the high seas in the
South China Sea to its sovereignty. The high seas refer to the area beyond the EEZs of coastal
states. China’s 9-dashed line claim subjects the high seas in the South China Sea to China’s
“indisputable sovereignty.” UNCLOS expressly provides that no state shall subject the high seas
to its sovereignty. This UNCLOS provision is a codification of centuries’ old customary
international law.
Under UNCLOS, the refusal of a party to participate in a dispute settlement proceedings, where
such participation is compulsory, “shall not constitute a bar to the proceedings” and the tribunal
can still decide the case on the merits.

How long will it take for the arbitral tribunal to decide the case?

The 5-man Annex VII arbitral tribunal met for the first time last July 11, 2013 and designated
The Hague as seat of the arbitration and the Permanent Court of Arbitration as the Registry of
the proceedings. Although China has refused to participate in the proceedings, it is still being
notified, and requested to comment, at every stage of the proceedings. Last Tuesday, August 27,
2013, the Tribunal issued an Order approving its Rules of Procedure and directing the
Philippines to submit its Memorial not later than March 30, 2014. The Order states that the
Memorial shall “fully address all issues, including matters relating to the jurisdiction of the
Arbitral Tribunal, the admissibility of the Philippines’ claim, as well as the merits of the
dispute.” The Order further states, “The Arbitral Tribunal will determine the further course of the
proceedings, including the need for and scheduling of any other written submissions and
hearings, at an appropriate later stage, after seeking the views of the Parties.” Based on the
Tribunal’s Order requiring all issues to be addressed in the Memorial of the Philippines, it is
possible that the Tribunal may decide the jurisdictional issue together with merits of the dispute.
Arbitrations under Annex VII may take two to three years before a decision is reached.

What are the ramifications of this case on international law?

China’s 9-dashed line claim simply cannot co-exist with UNCLOS. Upholding one means killing
the other. If China’s 9-dashed line claim is upheld or allowed to stand, UNCLOS will cease to be
the law of the sea in the South China Sea. China will appropriate for itself not only the EEZs and
ECSs of other coastal states but also the high seas and all the living and non-living resources
found there. This will be the beginning of the end for UNCLOS. Other naval powers will
likewise claim other oceans and seas, taking away the EEZs and ECSs of weak or defenseless
coastal states. The oceans and seas of the planet will be governed by the rule of the naval canon.

Indeed, the maritime dispute between the Philippines and China is an acid test to the very
survival of UNCLOS – whether the Rule of Law will govern the oceans and seas of our planet,
or whether the rule of the naval cannon will prevail, as it did in the time of Grotius. Legal
scholars on the law of the sea all over the world are keenly watching the outcome of the
Philippines’ arbitration case.

What are the ramifications of this case on the Philippines?

The Philippines has wisely chosen to bring its maritime dispute with China to a forum where
warships, fighter planes and missiles do not count, eliminating the military advantage of China
and insuring that the outcome of the dispute will be decided only in accordance with the Rule of
Law. It was a wise decision, but one borne out of necessity because it was actually the only
viable option open to the Philippines.

We have to admit that as a nation we have neglected to maintain a credible self-defense force,
particularly in our naval assets despite our being an archipelagic country with extensive
coastlines and a vast EEZ. We are paying dearly for this neglect, by losing Mischief Reef in
1995, Scarborough Shoal in 2012, and most likely Ayungin Shoal in the near future. To remain a
sovereign and independent nation, to maintain our territorial integrity, to avoid further
humiliation, and to maintain our self-respect as a nation, we must build and maintain a credible
self-defense force. There is simply no alternative to this. No nation can remain sovereign,
independent and free for long without maintaining a credible self-defense force, even if
international law and world opinion are on its side.

As a nation we must also understand that the maritime and territorial dispute with China in the
West Philippine Sea is an inter-generational struggle to maintain our sovereignty and territorial
integrity. Our generation may win the legal battle in the UNCLOS arbitration case, but for sure
China will not simply abandon its massive structure in Mischief Reef or withdraw its
surveillance vessels in Scarborough Shoal.

After securing a favorable ruling from the arbitral tribunal, our generation must still win over
world opinion and convince the Chinese people that they will become a rogue nation if their
Government continues to violate international law. he Chinese leaders may not survive
politically if they simply abandon the 9-dashed line claim without the Chinese people being
convinced that their 9-dashed line claim is against international law. The present generation of
Chinese have been taught from the time they entered school that the South China Sea belongs to
them. The next generation of Filipinos, and even the generation after them, must continue to
wage a worldwide campaign to convince the Chinese people that the 9-dashed line claim has no
basis in international law.

UNCLOS does not provide for a world policeman or sheriff to execute decisions of international
arbitral tribunals. Member states of UNCLOS are expected to voluntarily self-execute decisions
of arbitral tribunals. For a losing party, this will happen only if the Government of the day can
survive politically even if it complies with a decision against its own state. A Government will
survive politically if its people understand that the decision is mandated by international law.
The world must explain to the Chinese people that the 9-dashed line claim is contrary to
international law. No nation can claim the oceans and seas as its own. That is why it is necessary
for the Philippines to first secure a ruling from an international tribunal that the 9-dashed line
claim is contrary to international law.

The West Philippine Sea dispute can, and must be resolved, through the Rule of Law because it
is the only fair, just and durable solution to a situation where the opposing states are vastly
unequal in terms of military, economic and political strength. Any resolution of the dispute
outside of the Rule of Law will only result in unequal treaties and plant the seeds of conflict for
future generations.

The Rule of Law in the West Philippine Sea dispute is UNCLOS. All the claimant states to the
dispute are parties to UNCLOS and are bound to comply with their treaty obligations under
UNCLOS in good faith. If the West Philippine Sea dispute is settled in accordance with
UNCLOS, then the world can be assured that there will be a just, permanent and lasting peace in
the West Philippine Sea.

Source: https://www.imoa.ph/speech-the-rule-of-law-in-the-west-philippine-sea-dispute/

The Philippines and the West Philippine Sea

By Lucio Blanco Pitlo III

October 08, 2013

Contrary to the thinking in certain quarters, the Philippines does not lay claim to the entire South
China Sea (SCS), but rather to that smaller area of the SCS off the country’s western seaboard
that is well within its Exclusive Economic Zone (EEZ) and continental shelf and is known as the
West Philippine Sea (WPS). The Philippine government spelled out this difference when
President Benigno Aquino Jr. issued Administrative Order 29 on September 5, 2012, which
renamed the maritime areas to the country’s west. The Philippines is an archipelagic, maritime
state, which makes the WPS a matter of serious national importance given its strategic location,
security implications and resources.

The WPS would include the Kalayaan Island Group (part of the larger Spratlys group of features
in the SCS), and Bajo de Masinloc, also locally called the Panatag Shoal and internationally
known as Scarborough Shoal. But the Kalayaan Island Group and Bajo de Masinloc are actually
distinct and quite distant from one other. Moreover, while the Kalayaan Island Group hosts
features that are above water, with some large enough to be considered islands, Bajo de Masinloc
is an entirely submerged feature. As such, their maritime entitlements differ, as does the basis for
Manila’s claims. The tendency in some media reporting to lump all these features and waters
together often leads to confusion and creates the impression of parity in terms of the extent of
claims made by Philippines with that of other SCS disputants. Hence, the official clarification
was timely.

The WPS is critical for the Philippines for strategic, security and economic reasons, not to
mention national patrimony and territorial integrity. The WPS is the source of most of the
country’s indigenous oil and gas, with the potential to meet the country’s fuel demand in the next
20 years, while also hosting a wide array of seabed minerals. While other SCS claimants like
China, for instance, can boast onshore and offshore producing basins outside the SCS, the
Philippines’ present oil and gas production are clustered around offshore northwest Palawan and
the Recto (Reed) Bank in the WPS. Seismic studies suggest that these two areas possess the
greatest potential for a country long dependent on oil imports. As the Philippines continues to
develop its offshore hydrocarbons exploration and development capabilities, while attracting
local and foreign investors in harnessing these resources, the WPS promises to figure in the
country’s quest for future energy security and self-sufficiency.

This may help to explain why the trilateral Joint Marine Seismic Undertaking (2005-2008) was
publicly criticized after news emerged that the coverage area includes 75-80 percent of the
Philippines’ western EEZ, including the gas-rich Recto Bank. The notion of sharing scarce finite
resources with other states led many to reject the proposed continuation of the deal. It was also
said that JMSU gave China a window to claim previously undisputed maritime areas, such as
Recto Bank and other waters very close to Palawan.

The WPS is also home to 20% of the country’s fisheries catch. Its rich coral formations serve as
spawning grounds that replenish depleted stocks in waters adjacent to the Philippines. It is also a
transit area for migratory species. The development of the local commercial fishing industry will,
therefore, hinge on a sustainably managed use of these living marine resources in the WPS,
which is under threat from poaching and use of illegal and destructive fishing practices. Local
fishermen visiting certain parts of the WPS have also been harassed and chased away by armed
troops and paramilitary ships of other occupants. The need to develop the country’s naval and
maritime law enforcement assets is thus essential, both to protect local fishermen and to conserve
the fisheries resources of the WPS for future Filipino generations.

The WPS is also important from a national security standpoint. In fact, during World War II,
Japanese invaders used an island in the Spratlys to stage attacks against Philippine positions. The
fear of the Kalayaan Island Group falling into the hands of another state thus has echoes of the
past. Indeed, as early as 1933, long before the country attained self-rule from the U.S., Filipino
leaders had already expressed the importance of incorporating the features of the WPS as an
integral and indispensable part of their nation.

The WPS also lies along major Philippine trading channels, and control of these waters by an
unfriendly state could cripple the country’s improving economy. To this concern add the close
proximity of many foreign-occupied features. Hence, China’s 1995 occupation of Panganiban
(Mischief) Reef, its alleged effective occupation of Bajo de Masinloc since last year and recent
moves in Ayungin (Second Thomas) Shoal have all been met with concern and even outrage in
the Philippines. These developments lend credence to the idea of a creeping westward push by
China towards poorly defended Philippine posts. This, in turn, prompts calls for the
modernization of the Philippine Navy and the Philippine Air Force to deter further intrusions and
occupation of new features and to guard against unfriendly moves by other claimants. The
increasing assertiveness of other claimants also pushes the Philippines closer to its mutual
defense treaty ally, the U.S., whose forces have been allowed a rotational presence in the country
since 1999, eight years after the termination of the U.S. bases agreement.
All of this demonstrates the significance of the WPS for the Philippines. Allegations that Manila
is making a mountain out of a molehill should be reconsidered in light of these legitimate
interests. Emphasis on adherence to diplomacy and international law and a commitment to
maintaining good relations with neighbors have long prevented the Philippines from fortifying
and enhancing military facilities in its administered features, but further erosion of its defensive
position may encourage a rethink. Moreover, because of the proximity access and potential
transformative impact on Philippine economic development of WPS resources, any cooperative
undertaking (namely, joint development) with other claimants may need to entail significant
concessions to assuage Philippine fears that it is being disadvantaged.

The Philippines had been seeking to align its position in the WPS with international law. In
2009, the country passed its baselines law, wherein the Kalayaan Island Group and Bajo de
Masinloc were placed under a “regime of islands” consistent with UNCLOS, signaling that
Manila has no interest in drawing EEZs and ECSs for its WPS features, which would excessively
expand the country’s maritime entitlements and cause it to overlap with the maritime claims of
other SCS disputants. The Philippines is also advocating a rules-based approach that calls for the
delineation of areas under dispute from those that are undisputed, to facilitate talks on functional
cooperation or joint development in disputed areas. This position had been communicated at
regional meetings and summits on the SCS issue. The recent filing of a legal challenge against
China’s claims in the WPS can also be understood as resorting to international law to encourage
a rival claimant to clarify the extent, nature and bases of its claims.

Source: https://thediplomat.com/2013/10/the-philippines-and-the-west-philippine-sea/

EXPLAINER: Philippines' 5 arguments vs China

Paterno Esmaquel II

Published 1:54 PM, July 09, 2015

Updated 11:57 AM, July 10, 2015

MANILA, Philippines – The Philippines' case against China over the West Philippine Sea (South
China Sea) boils down to 5 basic arguments.

Philippine Foreign Secretary Albert del Rosario outlined these claims on Tuesday, July 7, the
first day of arguments at The Hague.

For the oral hearings that run until July 13, we've listed these 5 arguments, quoted verbatim from
Del Rosario.

Below each argument, we've added our own notes to explain things in a nutshell. We've also
included links to other stories for further reading and reference.

The Philippines' arguments revolve around the right to fish, as well as to exploit other resources,
in the West Philippine Sea. (READ: PH vs China at The Hague: '80% of fish' at stake)

This right is based on the so-called Constitution for the Oceans, the United Nations Convention
on the Law of the Sea (UNCLOS).

Under UNCLOS, a coastal state has the exclusive right to fish within its exclusive economic
zone (EEZ), an area 200 nautical miles from the coastal state's baselines or edges.

1. China's 'historical rights'

ARGUMENT: "First, that China is not entitled to exercise what it refers to as 'historic rights'
over the waters, seabed, and subsoil beyond the limits of its entitlements under the Convention."

EXPLANATION: China says the South China Sea has belonged to it for centuries. This is why it
claims "historical rights" over the disputed sea.

Senior Associate Justice Antonio Carpio of the Philippine Supreme Court, however, says that
"even if true," these historical rights have no bearing on sea disputes under UNCLOS. Carpio
explains that UNCLOS "extinguished all historical rights of other states." This UN convention
instead gives each coastal state an EEZ. (READ: Top Philippine judge uses Chinese maps vs
China)

2. China's 9-dash line

ARGUMENT: "Second, that the so-called 9-dash line has no basis whatsoever under
international law insofar as it purports to define the limits of China’s claim to 'historic rights.'"

EXPLANATION: The 9-dash line is China's demarcation to claim virtually the entire South
China Sea. China says this is based on its "historical rights."

The Philippines, however, asserts that the 9-dash line is baseless under UNCLOS. This UN
convention allows an EEZ, not a 9-dash line. (READ: No such thing as 9-dash line – US envoy)

Other Stories

China bans 'custody and education' punishment for sex workers

'Sex workers are subjected to police violence – forced labour, compulsory testing for sexually
transmitted disease... [and] humiliation and physical violence at these centers,' says Shen
Tingting of non-government organization Asia Catalyst

Malacañang: Morales, Del Rosario tapped 'ineffective process' for propaganda value

Presidential Spokesperson Salvador Panelo says the ICC Prosecutor's conclusion that it has no
jurisdiction over alleged crimes committed in the West Philippine Sea by China is in line with
the Duterte government's stand

China's wrong approach to its strategic dilemma

China has valid strategic concerns in the South China Sea, but its way of addressing them has
involved violating the territorial and resource rights of its neighbors

3. Rocks vs islands

ARGUMENT: "Third, that the various maritime features relied upon by China as a basis upon
which to assert its claims in the South China Sea are not islands that generate entitlement to an
exclusive economic zone or continental shelf. Rather, some are 'rocks' within the meaning of
Article 121, paragraph 3; others are low-tide elevations; and still others are permanently
submerged. As a result, none are capable of generating entitlements beyond 12NM (nautical
miles), and some generate no entitlements at all. China’s recent massive reclamation activities
cannot lawfully change the original nature and character of these features."

EXPLANATION: Under UNCLOS, habitable islands can generate a 200-nautical-mile EEZ.

Rocks cannot.

China describes some features in the South China Sea as islands. One of these is Panatag Shoal
(Scarborough Shoal), a rocky sandbar. China claims these supposed islands.

China also says these "islands" generate an EEZ, which could overlap with the EEZ of the
Philippines. The problem for the Philippines is, China declared in 2006 that it "does not accept"
arbitral jurisdiction when it comes to overlapping EEZs. UNCLOS allows this exception.

This is partly why China says the tribunal at The Hague has no right to hear the Philippine case –
because it supposedly involves overlapping EEZs.

"The maritime dispute between the Philippines and China boils down to whether there are
overlapping EEZs between the Philippines and China in the West Philippine Sea," Senior
Associate Justice Carpio says.

Carpio, however, explains that "China has no EEZ that overlaps with the Philippines' EEZ in the
Scarborough area." Carpio also believes an international tribunal "will deny Itu Aba," the largest
island in the Spratlys, an EEZ. (READ: Why China calls it Huangyan Island)

The Philippines adds that China's reclamation activities cannot "lawfully change" rocks into
islands.

4. Breach of the law of the sea

ARGUMENT: "Fourth, that China has breached the Convention by interfering with the
Philippines’ exercise of its sovereign rights and jurisdiction."

EXPLANATION: China prevents Filipinos from fishing in the West Philippine Sea. UNCLOS,
on the other hand, gives Filipinos the exclusive rights to fish within the Philippines' EEZ in the
disputed waters. (READ: PH fisherfolk: Living with Chinese coast guard's hostility)
5. Damage to environment

ARGUMENT: "China has irreversibly damaged the regional marine environment, in breach of
UNCLOS, by its destruction of coral reefs in the South China Sea, including areas within the
Philippines’ EEZ, by its destructive and hazardous fishing practices, and by its harvesting of
endangered species."

EXPLANATION: China is building artificial islands in the West Philippine Sea. The Philippines
says China's reclamation activities have buried 311 hectares of coral reefs – around 7 times the
size of Vatican City. This can mean P4.8 billion ($106.29 million) in lost economic benefits. At
the same time, China is accused of poaching. (READ: PH: China 'irreversibly damaged'
environment)

China, for its part, refuses to answer the Philippines' arguments in arbitration proceedings. It has
instead published a position paper debunking the Philippines' claims.

In the end, the Philippines says, the case at The Hague is set to provide a long-term solution to
the sea dispute. (READ: FULL TEXT: The Philippines' opening salvo at The Hague)

For Del Rosario, UNCLOS provisions "allow the weak to challenge the powerful on an
equal footing, confident in the conviction that principles trump power; that law triumphs
over force; and that right prevails over might." – Rappler.com

Source: https://www.rappler.com/newsbreak/iq/98839-philippines-china-hague-arguments-
explanation

'No such thing as 9-dash line' – US envoy

Ambassador Philip Goldberg reiterates the US stand that China's basis for claiming parts of
South China Sea does not pass the legal test for resolving disputes

Carmela Fonbuena

Published 8:07 PM, February 24, 2014

 Updated 12:59 AM, August 26, 2014

MANILA, Philippines – "There is no such thing as 9-dash line," United States ambassador to the
Philippines Philip Goldberg told reporters on Monday, February 24, reiterating his country's
rejection of China's basis for claiming portions of the South China Sea that are closer to the
Philippines.

"We do not believe that the 9-dash line claim passes the legal test for determining or resolving
disputes over South China Sea matters," Goldberg said during the annual prospects forum of the
Foreign Correspondents Association of the Philippines in Makati City.

The ambassador was reiterating the statement of US Assistant Secretary of State for East Asian
and Pacific Affairs Daniel Russel before the US Congress earlier in February.

Russel's statement is considered the first time that the US publicly rejected China's 9-dash line
claim in the South China Sea. More US policymakers and military officers have since issued
strong statements against China's aggressiveness.

The US supports the move of the Philippines to bring the maritime disputes to the United
Nations body, the International Tribunal for the Law of the Sea (ITLOS).

The US maintains it is not taking sides on the maritime disputes but it has taken a position
against any unilateral move to change the status quo. The US also opposes the establishment of
the Air Defense Identification Zone (ADIZ) over the East China Sea and similar attempts to do
the same over the West Philippines Sea.

Treaty allies, the US and the Philippines are finalizing a military-to-military agreement that will
increase the presence of American troops in the Philippines. The Philippines sought the help of
the US against the backdrop of escalating sea tensions.

"We want to conclude the agreement as soon as we can. There are still some details to work out.
We have made progress in the agreement. We want to conclude it as quickly as possible but I
won't set the date," said Goldberg.

Goldberg said the US military commits to continue helping the Philippines in terms of disaster
relief, maritime security, peacekeeping, defense reform, and human rights.
"The Philippines has embarked on a program to build a minimum credible defense as is the right
of sovereign nations. The US supports that effort. Nations need to be able to protect their borders
and defend their people not just from traditional aggression but from transnational crime,
smuggling, and international terrorism," Goldberg said.

The request of the Philippines coincides with the US strategy to rebalance to the Asia Pacific.
Goldberg said the US wants to deepen alliance with the Philippines for the following interests:
commercial, people to people, military and strategic ties.

"Note the order in which I put those priorities. If you think about the genesis of the rebalance, it
starts on the recognition of the rise of Asia – the rise of China and Southeast Asia in terms of
economic growth, population growth, and trade," he explained. – Rappler.com

Source: https://www.rappler.com/nation/51422-goldberg-china-claim