INPUT ON SENATE HEAARINGS ON THE WEST PHILIPPINE SEA

1. I urge caution on this issue given its politics. The Chair might just want to
facilitate the airing of views and not necessarily resolve the issues.

2. The factual issues should be fairly simple. The Department of National Defense
should be asked hard questions to elicit the necessary answers. I suppose
Senators Trillanes and Aquino would do the heavy helping on this.

3. It would be a big win for the country if the administration is able to recommit to
the Hague decision and explore ways of resuming a diplomatic strategy round
this.

4. It would be good for the Chair to show mastery of the dispute with China,
including what we won in the arbitral award, and that she believes that this is a
good thing for the country and we must preserve its gains.

5. Below is the background on the dispute, award, summary of decision, ideas for
enforcement, and highlights of the marine environment aspects.

BACKGROUND ON DISPUTE

The territorial disputes in the West Philippine/South China Sea are those in the Spratlys,
Paracels, and Scarborough shoal.

In the Spratly Islands, China, Vietnam, the Philippines, Malaysia, and Brunei have
territorial disputes, with China and Vietnam claiming the entire Spratlys, while the
Philippines and Malaysia claiming only certain islands and rocks above water at high
tide. Louisa Reef, within Brunei’s EEZ and about 1 meter above water at high tide, is
claimed by Brunei, and by China as Nantong Reef.

Similarly, China and Vietnam have a territorial dispute over the Paracels.

Likewise, China and the Philippines have a territorial dispute over Scarborough Shoal.
The maritime entitlements of rocks above water at high tide, like Scarborough Shoal,
can be independently determined without deciding which state exercises sovereignty
over the rocks. One does not need to know which state has sovereignty over such rocks
to conclude with certainty that such rocks are not capable of sustaining human
habitation or economic life of their own. Not a single blade of grass grows on the rocks
of Scarborough Shoal, and not a single drop of fresh water can be squeezed from those
rocks. Scarborough Shoal, whose biggest rock is 1.2 meters above water at high tide,
can generate only a 12 NM territorial sea, regardless of which state has sovereignty
over the shoal.

Aside from the territorial dispute, there are also maritime disputes to be dealt with. The
distinction is important to understand the significance of the arbitration case the
Philippines filed against China that Justice Carpio discusses lengthily in the book and
which I will summarize in a later column.

The Exclusive Economic Zones of ASEAN States China, on the one side, and on the
other side, Vietnam, the Philippines, Malaysia, Brunei, and Indonesia have a maritime
dispute with China whose nine-dashed line encroaches on the EEZs of these five
ASEAN states. West Philippine Sea The dispute between the Philippines and China
involves the EEZ and ECS70 of the Philippines in the West Philippine Sea, which forms
part of the South China Sea. Under Administrative Order No. 29 (2012), the West
Philippines Sea refers to the waters covered by the maritime entitlements (territorial sea
and EEZ) of the Philippines in the South China Sea. The West Philippine Sea also
includes the Philippine ECS. Under Article 77 (3) of UNCLOS, the right of the
Philippines to its continental shelf, including its 150 NM extended continental shelf, does
not depend on any occupation or proclamation. Such continental shelf inheres ipso
facto and ab initio to the Philippines by virtue of its sovereignty over its land territory.

The Philippine arbitration case against China actually does not involve a territorial
dispute but exclusively focus on maritime disputes involving the interpretation or
application of UNCLOS. Thus Justice Carpio clarifies that “The Philippines did not ask
the Arbitral Tribunal to rule which state is sovereign over certain islands or rocks above
water at high tide. Rather, the Philippines asked the Arbitral Tribunal to rule on the
extent of the maritime entitlements (0, 12 or 200 NM) of certain geologic features,
regardless of which state, if any, exercises sovereignty over them.”

Justice Carpio’s e-book points out that the Spratlys consist of about 750 geologic
features lying off the coast of Palawan, most of which are submerged at all times while
others are above water only at low tide. Only twenty-eight features remain above water
at high tide.

China’s claims to the Spratlys is based on the supposed award made in the Cairo,
Potsdam and San Francisco Conferences. Again, according to Justice Carpio, these
claims are unfounded. The 1943 Cairo Conference, attended by Roosevelt, Churchill
and Chiang Kaishek, produced a press release that “territories taken from China by
Japan, including Manchuria, Taiwan and the Pescadores, would be returned to the
control of the Republic of China after the conflict ended.” Yet, the Spratlys were never
mentioned because these islands were not taken by Japan from China but from the
French and the Spratlys were then unoccupied when Japan took over these islands.
Same goes with the 1951 San Francisco Peace Conference, when the motion of the
USSR to award the Paracels and the Spratlys to China was defeated by a vote of 46 to
3, with one abstention.
BACKGROUND ON THE ARBITRAL AWARD

The arbitral award handed down in 2016 by a tribunal convened under the
Permanent Court of Arbitration on the South China/West Philippine Sea (SC/WPS)
dispute was a legal slam dunk.

Regardless of what China has said, the awardis legally binding on both the
Philippines and China. And although international law comes with few direct
enforcement mechanisms, the world and our country is not entirely without remedies.
Justice Antonio Carpio believes the arbitral decision is self-enforcing. Now that the legal
status of the SC/WPS maritime zones are clear - high seas for a significant part,
exclusive economic zones for many of the countries with little overlap given the finding
that the region has more rocks than islands - maritime powers can act accordingly
whether is it refusing to abide by no-fly zones imposed by China or using sea passages
allowed in high seas as well as exclusive economic zone.

For the Philippines, the constitutional and legal implications are clear. The areas
of the SC/WPS that are our exclusive economic zone are reserved solely for Filipinos.
Any joint development agreement must bear that in mind. In addition, even if a legal
framing can be found that is constitutionally compliant, such development must be
approached with caution. As Professor Diane Desierto, one of the world’s and the
country top international legal expert and scholar, has observed: “Make no mistake
about "joint development agreements" for petroleum and natural gas resources in the
South China Sea. Those who are most vocal in proposing it for the Philippines, know
exactly that multibillion dollars are at stake - and the big question is whether those
billions actually go to real Philippine development that will be sustainable and
accountable. Entering into these agreements also makes the Philippines vulnerable to
disputes over contract or treaty claims of foreign investors. There is a Philippines-China
bilateral investment treaty with compulsory investor-State arbitration. The Philippines
should be careful that it does not end up being taken to multibillion dollar arbitration by
patriotic Chinese investors.”

SUMMARY OF THE AWARD

On the Scarborough Shoal, the Tribunal ruled that the Shoal is a high-tide elevation
entitled to a 12 NM territorial sea but not to a 200 NM EEZ since obviously it is not
capable of human habitation. The territorial sea of Scarborough Shoal, which includes
the lagoon, is however a traditional fishing ground of Filipino, Chinese, and Vietnamese
fishermen. In any case, China cannot prevent Filipino fishermen from fishing in the
territorial sea of Scarborough Shoal.
 
On China’s claim of the Scarborough Shoal because the shoal was allegedly the
observation point in the South China Sea where Guo Shoujing erected in 1279 CE an
astronomical observatory, this claim is belied because China had already identified
Xisha (the Paracels) as the observation point when China presented its argument
against Vietnam in 1980. As clearly pointed out by Carpio, “The biggest rock on
Scarborough Shoal is just 1.2 meters above water at high tide, and not more than 6 to
10 people can stand on it.  It is physically impossible to erect, or operate, the massive
astronomical observatories of Guo Shoujing on the tiny rocks of Scarborough.”
 
As regard the environment, the Arbitral Tribunal ruled that China violated its obligation
under UNCLOS to “protect and preserve the marine environment” when China: (a)
Dredged and built islands on seven reefs;  (b)Failed to prevent its fishermen from
harvesting endangered species like sea turtles, corals, and giant clams in the Spratlys
and Scarborough Shoal.
 
Other issues raised to which The Arbitral Tribunal made a ruling are:
 
China violated the exclusive right of the Philippines to its EEZ when China: (a)
Interfered with fishing activities of Filipino fishermen within Philippine EEZ, including
imposing a fishing moratorium within Philippine EEZ; (b) Interfered with petroleum
activities of Philippine-commissioned vessels within Philippine EEZ; (c) Failed to
prevent Chinese fishermen from fishing within Philippine EEZ; and (d)Constructed an
artificial island and structures on an LTE (Mischief Reef) within Philippine EEZ.
 
China alsoi violated its obligation not to aggravate the dispute during the arbitration
when China: (a) Dredged the reefs, reclaimed and built the islands while the
proceedings were ongoing, and; Destroyed the evidence of the natural condition of the
geologic features at issue when China dredged and reclaimed them while the
proceedings were ongoing.
 
Finally,  China violated its obligation to observe maritime safety when Chinese coast
guard vessels crossed the path of Philippine vessels at high speed. 

ENFORCING THE AWARD

 
Justice Carpio has suggested ways forward in the enforcement of the Arbitral Award,
namely: (a) Enforcement of the Award by the world’s naval powers with respect to
freedom of navigation and overflight for military vessels and aircraft; and, (b)  
Enforcement of the Award by the Philippines with respect to its exclusive right to exploit
the resources of its EEZ in the South China Sea.
 
On the first enforcement method, Justice Carpio observed that naval powers such as
the United States, France and Great Britain can enforce the Award by sailing and flying,
and conducting military activities, in the high seas and EEZs of the South China Sea. 
 
On the second method of enforcement, the Philippines can do several things, such as
suing in a jurisdiction that ratified UNCLOS, move before the International Seabed
Authority for the suspension of China’s exploration permits in the Area, move before the
U.N. Commission on the Limits of the Continental Shelf (CLCS) for the suspension of
China’s application for an ECS in the East China Sea, can negotiate its maritime
boundaries with Malaysia (EEZ and ECS) and Vietnam (ECS), applying the Arbitral
Tribunal’s ruling that no geologic feature in the Spratlys generates an EEZ and that the
nine-dashed line has no legal effect on maritime entitlements, can delineate its ECS
from Luzon and file its claim with the CLCS, there being no legal impediment from the
nine-dashed line, and the Philippine navy and coast guard vessels and aircraft can
continue to patrol  Philippine EEZ in the West Philippine Sea.  
 
Justice Carpio has emphasized that the leaders of our nation must exercise utmost
deliberation, consistency, and perseverance in seeking ways to enforce what the
Arbitral Tribunal has finally awarded to the Philippines as its own EEZ in the West
Philippine Sea.  Silence or inaction is no way to go as this can be interpreted as a
state’s acceptance of a factual or legal situation. 

China’s failure on the marine environment

One major issue raised by the Philippine government panel before the
Permanent Court of Arbitration arbitral tribunal on the South China/West Philippine Sea
dispute was China’s failure to live up to its obligations to conserve and protect the
marine environment under the United Nations Convention on the Law of the Sea. It was
a master stroke that the Philippines, among others, hired Philippe Sands, a Bristish
lawyer from London, to advocate for us in this issue. Philippe, whom I have met several
tomes, is one of the world’s top environmental lawyers. He is also fond of the
Philippines, being a friend among others of the late Justice Florentino Feliciano whom
sands considered as responsible for laying down a pro-environment jurisprudence in the
World Trade Organisation when the latter was a member of its Appellate Body.

As noted by the tribunal: “The South China Sea includes highly productive
fisheries and extensive coral reef ecosystems, which are among the most biodiverse in
the world. The marine environment around Scarborough Shoal and the Spratly Islands
has an extremely high level of biodiversity of species, including fishes, corals,
echinoderms, mangroves, seagrasses, giant clams, and marine turtles, some of which
are recognized as vulnerable or endangered . . . While coral reefs are amongst the most
biodiverse and socioeconomically important ecosystems, they are also fragile and
degrade under human pressures. Threats to coral reefs include overfishing, destructive
fishing, pollution, human habitation, and construction.”

In this regard, the Philippines alleged that China failed to protect the marine
environment due to harmful fishing practices and harmful construction activities. The
Philippine panel during hearing adduced evidence showing these Chinese fishing
vessels engaged in destructive practices by harvesting corals, endangered “sharks,
eels, turtles and corals, giant clams, among others. Some were caught carrying
cyanide, blasting caps, detonating cord, and dynamite.

The Philippines expressed its concerns to ASEAN Member States on 21 May

2012 and sent a Note Verbale to the Chinese Embassy in Manila. But in its dismissive
response China urged the Philippines to withdraw all Philippine ships immediately, and
once again urged that the Philippines “immediately pull out” all remaining ships and
“desist from disturbing the operation of Chinese fishing boats and law enforcement
activities by China’s public service ships.”

The second aspect of the Philippines’ environmental submissions relates to

Chinese construction activities on seven features in the Spratly Islands. Typically
starting with basic aluminum, wooden, or fibreglass structures supported by steel bars
with cement bases, over time, China installed more sophisticated structures, including
concrete multi-storey buildings, wharves, helipads, and weather and communications
instruments. According to the Tribunal’s experts, construction and dredging activities
can impact reef systems in three ways: (a) direct destruction of reef habitat through
burial under sand, gravel and rubble; (b) indirect impacts on benthic organisms such as
corals and seagrasses via altered hydrodynamics, increased sedimentation, turbidity,
and nutrient enrichment; and (c) indirect impacts on organisms in the water column,
such as fishes and larvae, from sediments, chemical and nutrient release, and noise. As
was typical, China only ignored the Philippines’ protests. China maintains that its
island-building project “had gone through science-based evaluation and assessment
with equal importance given to construction and protection” and that it had taken “full
account of issues of ecological preservation and fishery protection” and “followed strict
environmental protection standards.”

By way of conclusion, the Tribunal found that China has, through its toleration
and protection of, and failure to prevent Chinese fishing vessels engaging in harmful
harvesting activities of endangered species at Scarborough Shoal, Second Thomas
Shoal and other features in the Spratly Islands, breached Articles 192 and 194(5) of the
Convention.

Among others, the Philippines charged China with failing to prevent its fishermen
to fish within the Philippines’ exclusive economic zone at Second Thomas Shoal or
Mischief Reef, an issue that China did not address. In its contemporaneous statements,
China merely insisted that the Philippines did not exercise jurisdiction over Second
Thomas Shoal or Mischief Reef. On these marine features, The Tribunal has held that
Mischief Reef and Second Thomas Shoal are low-tide elevations located within areas
where only the Philippines possesses possible entitlements to maritime zones under the
Convention. These areas can only constitute the exclusive economic zone of the
Philippines.

As such, according to the Tribunal, Chinese nationals are bound to comply with
the licensing and other access procedures of the Philippines within any area forming
part of the exclusive economic zone of the Philippines. With respect to the illegal fishing
activities by Chinese fishermen, the tribunal noted that China’s de facto control over the
waters surrounding both features effectively limits the information available to the
Philippines and to the Tribunal. Despite these limitations the Tribunal gave credence to
the accounts by the Philippines armed forces that Chinese fishing vessels,
accompanied by the ships of CMS, were engaged in fishing at both Mischief Reef and
Second Thomas Shoal in May 2013. That Chinese fishing vessels have been closely
escorted by government CMS vessels makes these actions of official acts of China and
are all attributable to China as such.

Regarding the Scarborough shoal, the tribunal subscribe to the submission that
the surrounding waters have continued to serve as traditional fishing grounds for
fishermen, including those from the Philippines, Viet Nam, and China (including from
Taiwan). Records show that the atoll was a traditional fishing ground for exotic fishes
such“[b]onito, talakitok, tanguige and other species of fish found beneath or near rocks.”
Beginning in April 2012, the Philippine Coast guard reported increased presence of
Chinese vessels in the area. While Chinese vessels were physically blockading the
entrance to Scarborough Shoal, and driving away Filipino fishermen with water cannon,
Chinese fishing vessels have continued to fish at Scarborough Shoal.

Finally, China’s island-building activities also violate specific provisions of the

Convention, the Tribunal added. The final column of this series on the arbitral decision
on the South China/West Philippine Sea dispute will be discussed in the next and final
article.