1. What are the background facts?
The South China Sea (SCS) dispute involves both territorial and maritime claims.[1] The claimants include Brunei, China, Indonesia, Malaysia, Philippines, Taiwan (China), and Vietnam.[2] The dispute relates to islands, reefs, banks, other features, and waters.[3]
In pursuit of their respective claims, the claimants
have occupied various maritime features,[4]
shown in the following map:[5]
See also the following map.[6]
Incidentally, a major party to the dispute is a nuclear-weapon State, China.[7] Aside from the SCS issue, China is also involved in other territorial disputes.[8]
2. What are the applicable laws?
From the Philippine perspective, the applicable laws include the following:
a. (a) 1987 Constitution, Article I, National Territory,[9]
b. (b) Pres. Dec. No. 1596, Declaring the Kalayaan Island Group as Philippine Territory (1978),
c. (c) Pres. Dec. No. 1599, Establishing the Exclusive Economic Zone of the Philippines (1978),
d. (d) Rep. Act No. 9522, Defining the Baselines of the Philippine Territorial Sea (2009),
e. (e) United Nations Convention on the Law of the Sea (UNCLOS), Establishing the Exclusive Economic Zone (EEZ) of coastal States and for other purposes (1982),[10]
f. (f) Award, In the Matter of the South China Sea Arbitration, PCA Case No. 2013-19, lodged by the Philippines against China (2016).[11]
UNCLOS as international law affirms that maritime resources beyond national jurisdiction are the “common heritage of mankind.” UNCLOS, Sixth Recital. It recognizes sovereignty only over archipelagic waters and the territorial sea (12 miles from baseline). UNCLOS, Articles 2 & 3. It mandates that the coastal State has the sovereign right to exploit and manage natural resources, living and non-living, in its EEZ (200 miles from baseline). UNCLOS, Articles 56 & 57. It provides that the coastal State has the sovereign right to construct or authorize construction of artificial islands, installations, structures in its EEZ. UNCLOS, Article 60. It states that the coastal State has the sovereign right to determine allowable catch of living resources in its EEZ. UNCLOS, Article 61. No State may subject any part of the high seas to its sovereignty. UNCLOS, Article 89.
Strictly speaking, to classify PCA Case No. 2013-19 as an arbitration award may be of doubtful legality. This is because only one party to the dispute participated, the Philippines. The other party to the dispute, China, did not participate.
Instead of classifying the case as an arbitration
award, it may be more reasonable to cite it as an Advisory Opinion, having been
rendered by an arbitration tribunal.[12] Notably,
an advisory opinion adjudicates nothing and is not binding. However, it may
nonetheless be cited as evidence of the law.[13]
3. How do we move forward to resolve the dispute?
For the Philippines, the twin policies of “quiet diplomacy” and a “strong military” are suggested in dealing with other claimants, particularly China.[14]
For “quiet diplomacy,” we may take the following formal and informal actions simultaneously:[15]
a. (a) conduct bilateral negotiations with China (i.e. technical and financial assistance agreement or service contract to develop energy sources [i.e. oil and gas) with 60/40 sharing of revenues; turn-over of possession of artificial islands inside PH EEZ [i.e. Mischief Reef] not later than the expiry of the service agreement; fisheries access agreement),
b. (b) conduct multi-lateral negotiations with ASEAN plus China (i.e. Code of Conduct based on UNCLOS; zone of peace, freedom and neutrality; non-aggression pact; fisheries access agreement),
c. (c) seek and establish relations with political / military / civil society groups in China and Taiwan (China), open to adopting UNCLOS, instead of the Nine-Dash Line, to the extent possible,
d. (d) seek and communicate directly with the Chinese people (in Chinese language) through social media and mainstream media, to promote respect for international law, specifically UNCLOS, instead of the Nine-Dash Line (i.e. territorial claims refer to land; claims to territorial sea are measured from land; territorial sea is 12 miles only; there is no territorial sea for 1000 miles; there is no territorial claim solely to waters without land; even claims to archipelagic waters refer to the outermost islands).
For a “strong military,” it should be clarified that this is only meant to gain a respectable bargaining position in diplomatic negotiations with other claimants, particularly China. It is certainly not intended to pursue the taking or retaking of maritime features in the SCS through military action.
To this end, a “strong military” should be one that is
capable not only of defending the Philippine EEZ, but a force also capable of
projecting power beyond the EEZ. In realpolitik, this may be only way to
persuade the other claimants, particularly China, to conclude a fair, just and
equitable working arrangement with smaller States, like the Philippines.[16]
Atty. Dindo B. Donato
General Counsel
Tanggulang Demokrasya (Tan Dem), Inc.
14 April 2022. Makati City, Philippines.
Disclaimer: The views and
opinions expressed in this material are those of the author and do not
necessarily reflect the official policy or position of TanDem.
[1]
https://en.wikipedia.org/wiki/Territorial_disputes_in_the_South_China_Sea
[2] Id.
[3] Id.
[4] https://en.wikipedia.org/wiki/List_of_maritime_features_in_the_Spratly_Islands#Occupied_features
[5]
https://en.wikipedia.org/wiki/Territorial_disputes_in_the_South_China_Sea#/media/File:Spratly_with_flags.jpg
CIA.
Cropped and Flags added by Estarapapax., Public domain, via Wikimedia Commons
[6] https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdfhttps://upload.wikimedia.org/wikipedia/commons/1/1a/Spratly_Islands_in_the_South_China_Sea_Department_of_State_map_2016587286_%282015%29.jpg
United States, Department of State, cartographer, Public domain, via Wikimedia Commons
[7] See Treaty on the
Non-Proliferation of Nuclear Weapons (NPT) (1968).
https://www.un.org/disarmament/wmd/nuclear/npt/text
https://en.wikipedia.org/wiki/Treaty_on_the_Non-Proliferation_of_Nuclear_Weapon
[8] See Realpolitik in the South China Sea, D.B.Donato, 19 April 2020, that refers to contemporary history from approximately 1945 through the present, and reads in part as follows:
“At the end of the Chinese Civil War (1945-1949), when the communists gained control of the mainland, and the nationalists retreated to Taiwan, the People’s Liberation Army (PLA) took Uyghur in 1949, Eastern Kashmir in 1950, and Tibet also in 1950. These regions had long histories of self-rule, but the PLA forced their annexation.
“The civil war in China resulted in the establishment of two de facto states on opposite sides of the Taiwan Strait. The mainland adopted command economy, while the island embraced free-market economy.
“However, instead of accepting co-existence, like in North and South Korea and East and West Germany, the mainland pursued a One-China policy, isolating the island from the rest of the world, and reserving its “right to use force” for reunification.
“China also claims practically the entire South China Sea, with all the islands and waters covered by its Nine-Dash Line of demarcation. This is so even without any historical evidence showing human settlements in the area.
“Realistically speaking, Chinese junk cargo ships that sailed only 5 knots, could not have exercised effective jurisdiction over islands, islets, cays and reefs 800 miles away. The Austronesian karakoa outrigger warships from the much nearer Southeast Asian archipelago sailed much faster at 15 knots.
“In 1982, China along with the coastal states of Asean, signed the United Nations Convention on the Law of the Sea (UNCLOS). Among others, UNCLOS established an Exclusive Economic Zone (EEZ) for coastal states.
“However, in violation of UNCLOS, the PLA constructed artificial islands and military installations right within the EEZ of the Philippines, i.e. Mischief Reef (1995).”
https://mainews.ph/features2/category/3-politics.html?download=62:realpolitik-in-the-south-china-sea
[9] Article I on National Territory of the 1987 Constitution reads as follows:
“The national territory comprises
the Philippine archipelago, with
all the islands and waters embraced
therein, and all other
territories over which the
Philippines has sovereignty or
jurisdiction, consisting of its terrestrial,
fluvial and aerial
domains, including its territorial
sea, the seabed, the subsoil, the
insular shelves, and other
submarine areas. The waters around
between, the connecting the islands
of the archipelago, regardless
of their breadth and dimensions,
from part of the internal waters of
the Philippines.”
[10]
https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
[11]
https://www.pcacases.com/pcadocs/PH-CN%20-%2020160712%20-%20Award.pdf
[12]
https://www.britannica.com/topic/advisory-opinion
[13] Id.
[14] COMMENTS on “Resolving PH-China
maritime dispute,” D.B.Donato, 31 October 2019.
https://mainews.ph/features2/category/3-politics.html?download=56:comments-on-resolving-ph-china-maritime-dispute
[15] Id.
[16] Id.
