By Rep. Harry L. Roque
On July 12, the Permanent Court of Arbitration based in The Hague is expected to give its verdict on the arbitration case brought by the Philippines against China. The case challenges the latter’s claim to virtually the entirety of the West Philippine Sea.
The arbitration was commenced by the Philippines under the compulsory and binding dispute settlement mechanism of the United Nations Convention on the Law of the Sea. Both the Philippines and China are parties to the Convention.
Specifically, the tribunal will rule on whether the so-called nine-dash lines, on the basis of which China claims “undisputed sovereignty and sovereign rights” over the disputed territory, is consistent with the Unclos. The world community to be bound by the Constitution of the seas envisioned the provisions of this treaty. This is evident in the manner by which the treaty was adopted: its provisions were adopted on the basis of consensus and were not made subject to reservations by any state party.
Furthermore, the Tribunal will also rule on the issue of whether the “islands” reclaimed by China, including Fiery Cross and Mischief Reef, where it has built military bases, are indeed “islands” within the meaning of the Convention. Under Article 121 of the Unclos, an island is permanently above water and can generate an Exclusive Economic Zone (EEZ) of up to 200 nautical miles if it is “capable of human habitation.” A rock, in turn, is permanently above water but is incapable of supporting human habitation. In which case, a “rock” can only generate a territorial sea of 12 nautical miles. At stake in the Tribunal’s ruling is whether these islands, upon which China has built military installation, may be the subject of title by any state. This is because under the Unclos, low-tide elevations, or land features which are visible only during high tide, are mere geographic features and may not be subject to title by any state since they only form part only of a state’s EEZ. Thus, they are subject only to exploration and exploitation by a coastal state. The Philippines claims that these artificial island are all low-tide elevations, two of which should be declared as part of the Philippine continental shelf, while a further two should be declared as part of the international sea bed area.
Finally, the Tribunal is also expected to rule on whether the water outside Panatag’s territorial sea of 12 nautical miles, and located 121 miles from the coastline of Zambales, forms part of the Philippines’ 200-nautical-mile EEZ.
While the tribunal is expected to rule on the merits on the issue of the low-tide elevations and on the issue of Panatag, it is still uncertain whether it would actually rule on the merits on the issue of the nine-dash lines. This is because in its preliminary ruling on the issue of jurisdiction, the court withheld judgment on jurisdiction since this appears too intertwined with the issue on the merits.
Consequently, the tribunal may still rule that since its jurisdiction extends only to issues of interpretation and application of the Unclos on matters not otherwise reserved by a state party, it may not rule on the validity of the nine-dash lines given China’s assertion that the waters within the dotted lines are generated by land territories. Hence, no determination may be had on its claim to the waters within the dotted lines without a priori determination on the issue of title to these land territories.
Either way, the tribunal’s decision will not end the ongoing dispute over Panatag and the Spratlys group of islands. This is because as a tribunal on the Law of the Sea, it cannot pronounce judgment on which of the claimants has the superior claim to the disputed islands.
Nonetheless, a decision that the nine-dash lines lacks legal basis under the Unclos will address existing ambiguities, particularly on the validity of historical claims to waters. The Philippines argues, both in its pleadings and its state practice, through the enactment of the Archipelagic Baselines Law, that historic claims to waters not otherwise sanctioned by the Unclos are deemed abandoned when a state becomes a party to the Convention.
China, through its sitting Judge in the International Court of Justice, Xue Hanqin, argues otherwise. It asserts that states like it that ratified the Unclos subject to declaration that its territory shall continue to be defined by its internal laws, one which was also made by the Philippines, are not deemed to have abandoned their claim to historic waters. Further, Hanqin argues that international law does not prohibit historic claims to waters. Hence, they are allowed in international law.
It would appear that the tribunal’s ruling on the issue of the nine-dash lines would be the most anticipated of the three issues submitted by the Philippines. Since the tribunal assumed jurisdiction on the issues of the low-tide elevations and on the issue of Panatag, it is expected that the tribunal would rule on the merits of these claims. Here, the tribunal may rule that the installations built by China may or may not be the subject of Chinese sovereignty and title; and that the waters off the territorial sea generated by Panatag are not part of the Philippine EEZ.
But on the all-important issue of whether the Chinese may validly invoke historic title for its claim to 95 percent of the West Philippine Sea, the tribunal has sufficient leeway to appease both parties to the proceedings. To please China and to ensure that it will not leave the Unclos, a policy decision that China’s continued membership in Unclos will strengthen the binding nature of the Convention; the Tribunal may simply rule that it has no jurisdiction to rule on the validity of the historic claims to waters since this would require a prior determination on the validity of title to disputed land territories generating maritime territories.
But if it were strictly to apply the law, the ruling will be in favor of the Philippines. Historic waters is not one of the maritime zones provided in the Unclos.
Let’s hope the spirit and letter of the law will prevail over the policy of strengthening the binding nature of the Convention.