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Friday, June 14, 2024

‘Drop that grand ambition of a Code of Conduct for navigation in the SCS’

US commitment to Taiwan will not bind the Philippines under EDCA nor such is allowed by the Constitution to have the bases leased or rented to foreign countries

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Only countries littoral to the South China Sea (SCS) should be allowed to participate, navigate and exercise in the area in the proposed Code of Conduct for navigation.

This should be the basis upon which countries could be made members.

While the Association of Southeast Asian Nations (ASEAN) appears willing to accept as members countries alien or intruder to the region, such cannot be made a criteria.

They are not littoral states to the SCS to rightfully allow them to have a legitimate claim; they being not members of the ASEAN, much that not all ASEAN countries have littoral access to the SCS, and are given access of innocent passage in the SCS.

The members of the ASEAN today are: Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam.

On September 16, 1963, the so-called Federation of Malaysia was formed.

The membership of Sabah and Sarawak located in the island of Borneo made these portions of the federation littoral states to the SCS.

Legally, these two federated countries have pending claims in the SCS, and claims that began in 1963.

Prior to that, they cannot be considered legitimate claimants to any of the islands, they not being littoral states or have direct access to the SCS.

Prior to the ratification of the United Nations Convention on the Law of the Seas (UNCLOS) on December 10, 1982, all countries littoral to the SCS observed the normal and traditional waterline of 12-mile limit from their outermost baseline.

There was confusion on our part because the Philippines adopted the “archipelagic doctrine” understood as the Tolentino Doctrine.

This is found in the 2nd sentence of Article 1 of the 1987 Constitution.

The Archipelagic Doctrine states that “all waters, around between and connecting different islands belonging to the Philippine Archipelago, irrespective of their width or dimension, are necessary appurtenances of its land territory, forming an integral part of the national or inland waters, subject to the exclusive sovereignty of the Philippines.”

The provision emphasizes the unity of the land and waters by defining an archipelago as group of islands surrounded by waters or a body of waters studded with islands.

To emphasize unity, an imaginary single baseline is drawn around the islands by joining appropriate points of the outermost islands of the archipelago with straight lines and all islands and waters enclosed within the baseline to form part of its territory.

As stated, the approval of UNCLOS expanded the country’s exclusive economic zone (EEZ) to 200-mile from the country’s outermost base.

Generally, a state’s exclusive economic zone (EEZ) is an area beyond and adjacent to the territorial sea, extending seaward to a distance of no more than 200 nautical miles, 370 km out from its coastal baseline.

The exception to this rule occurs when EEZ would overlap; that is, state coastal baselines are less than 400 nmi (740 km) apart.

When an overlap occurs, it is up to the states to delineate the actual maritime boundary.

Generally, any point within an overlapping area defaults to the nearest state.

A state’s EEZ starts at the seaward edge of its territorial sea and extends outward to a distance of 200 nmi (370 km) from the baseline.

The EEZ stretches much farther into sea than the territorial waters, which end at 12 nmi (22 km) from the coastal baseline (if following the rules set out in the UNCLOS.

Thus, the EEZ includes the contiguous zone.

States also have rights to the seabed of what is called the continental shelf up to 350 nmi (650 km) from the coastal baseline, beyond the EEZ but such areas are not part of their EEZ.

The legal definition of the continental shelf does not directly correspond to the geological meaning of the term, as it also includes the continental rise and slope, and the entire seabed within the EEZ.

Countries that have no littoral right in the SCS should not be accorded the right/privilege to be a member or conduct navigation in the identified area.

They are considered geographically alien or intruder to the SCS. They have no littoral right to the sea, so to speak.

The insistence by the Philippines to ratify the Code of Conduct is rather misplaced.

First, the US is not a member of the ASEAN or is geographically located in the SCS.

Second, its claim of securing the territorial integrity and security of Taiwan is rather a political act of the US or an exercise of hegemony in this part of the globe.

Third, the Philippines has long become independent and is not obligated or duty-bound to defend a foreign county.

The Philippines’ position of insisting in giving equal rights and privileges to countries and foreign ships to exercise its code of conduct for navigation right inside the heartland of South China Sea is akin to giving them right authority to conduct, guide, and give direction to their navies to enjoy such right to enforce its own rules of navigation within the SCS.

Such would only intensity competition and exacerbate conflict among navies allowed to operate in the SCS.

Surely, the US navy or even of its allies from the West would never submit themselves to jurisdiction and be placed under the command of foreign navies indigenously allowed to operate in the SCS.

Our President is therefore advised to drop his grand ambition for a greater Code of Conduct for navies operating in the SCS.

Such ambition might just qualitatively be developed to one of a rules-based principle wholly advantageous to the US which many countries see as rather suspicious and laden with selfish motivations.

The young Marcos should never allow himself as subaltern promoting US hegemonism and unilateralism in guise of promoting peace, freedom and democracy.

The US, as it insists, conducts its foreign relations based on what it calls rules-based principles of international law.

US commitment to Taiwan will not bind the Philippines under EDCA nor such is allowed by the Constitution to have the bases leased or rented to foreign countries.

Moreover, our country’s seemingly closer ties with the US now may destabilize the ASEAN as it could lead to polarization, and the pitting of US and China against each other.

The objective of ASEAN is to remain non-aligned.

BBM’s leaning on the US foreign policy will cause harm to the relationship between the Philippines and other ASEAN countries.

(rpkapunan@gmail.com)

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