High crime in the high seas

The decision or award given the Philippines is stunning in its scope and clarity and breathtaking in its regional and global implications.

At 5 p.m. on July 12, The Hague-based Permanent Court of Arbitration, at 117 years old, the oldest global institution for the settlement of international disputes, gave the Philippines its biggest legal victory ever in any international arena, and China, its biggest and most humiliating setback in its campaign for international maritime and economic supremacy and unbridled territorial expansion.

Not since 1521 when Filipino warrior Lapu-Lapu defeated Portuguese explorer Magellan in the now famous Battle of Mactan nearly 500 years ago, has the Philippines won so convincingly a moral and legal victory of global import. 

To me, there are two basic issues in the Philippines vs. China maritime case filed in January 2013.  The so-called ownership by China of some 80 percent of the South China Sea by “historic title,” and the issue over seven reefs or rocks occupied by China but which rocks and reefs are claimed by the Philippines as part of its sovereign maritime resources to which it alone is entitled to exploit, by reason of its 200-nautical mile Exclusive Economic Zone.

These seven islands/rocks are: Mischief Reef or Second Thomas Shoal, Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subic Reef.  The tribunal rejected China’s claim to entitlement to these rocks.  However, Chinese activities on these rocks such as reclamation, construction of artificial islands, installations and structures “do not constitute ‘military activities,’” the tribunal concluded.

The tribunal declares that “Scarborough Shoal, Gaven Reef (North), McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef, in their natural condition, are rocks that cannot sustain human habitation or economic life of their own.  Accordingly, “they generate no entitlement to an Exclusive Economic Zone or continental shelf.”

Under the United Nations Conference on Law of the Sea (Article 121, Unclos)—there are three kinds of features above the water—island, rock, and low-tide elevation. 

An island is a naturally formed area of land surrounded by water and above water at high tide.  An island is entitled to 12-nautical mile territorial sea, 200 NM Exclusive Economic Zone or Continental Shelf.

A rock is a reef mainly below water but have rocky formations that protrude above water at high tide.  But it cannot sustain human habitation or economic life on its own.  Such a rock is entitled at most to 12 NM TS but not to EEZ or CS.

LTE are reefs or artificial islands which are not visible or above water at high tide.    They are submerged in the water most of the time.  They have no TS, EEZ or CS.

The Hague tribunal absolutely rejects China’s nine-dash line theory by “historic title” that enables it to claim 80 percent of the South China Sea.           

“The tribunal notes that historic rights are, in most instances, exceptional rights. They accord a right that a State would not otherwise hold, were it not for the operation of the historical process giving rise to the right and the acquiescence of other States in the process. It follows from this, however, that the exercise of freedoms permitted under international law cannot give rise to a historic right; it involves nothing that would call for the acquiescence of other States and can only represent the use of what international law already freely permits,” says the 500-page unanimous decision of the five PCA judges ruling on the Philippine case.

Prior to the Unclos, the decision recalls, “the international legal regime for the oceans recognized only a narrow belt of territorial sea and the vast areas of high seas that comprised (and still comprise) the majority of the oceans. Under this regime, nearly all of the South China Sea formed part of the high seas.”

This portion of the decision renders bogus, null and void, and an absolute lie China’s claim of sovereignty—in terms of territory and right to exploit resources—over 80 percent of the South China Sea.  SCS is part of the high seas.  It is owned by mankind, not by the Chinese.

Sneers the PCA decision: “For much of history, therefore, China’s navigation and trade in the South China Sea, as well as fishing beyond the territorial sea, represented the exercise of high seas freedoms. China engaged in activities that were permitted to all States by international law, as did the Philippines and other littoral States surrounding the South China Sea. Before the Second World War, the use of the seabed, beyond the limits of the territorial sea, was likewise a freedom open to any State that wished to do so, although as a practical matter the technological ability to do so effectively has emerged only more recently.”

“Historical navigation and fishing, beyond the territorial sea, cannot therefore form the basis for the emergence of a historic right,” says the PCA.

In effect, the PCA is telling the Chinese:  “Just because you have been allowed to use the ocean for a period of time, as all other nations have been, does not mean the ocean belongs to you.”

Mischief Reef is not entitled to a 12 NM TS nor to EEZ or CS for China. It belongs to the Philippines because it is part of Manila’s EEZ and CS and China violated the Philippine EEZ and CS.

In this connection, China, said the tribunal, also violated the Philippine EEZ and CS by banning fishing on waters surrounding rocks and reefs which part of the Philippine EEZ and CS.  It also violated the Philippine sovereign rights (which is basically right to exploit) over “the non-living resources of its continental shelf in the areas of the Reed Bank.”   Reed Bank is supposed to be rich in oil and gas.

The tribunal also found  China guilty of doing harm to the environment in the South China Sea.  Chinese vessels harvested “endangered species on a significant scale,” have been harvesting giant clams “in a manner severely destructive of the coral reef and ecosystem,” and that “China was aware of, tolerated, protected, and failed to prevent the aforementioned harmful activities.”

Because of repeated violations of the Philippines’ EEZ sovereign rights and destruction of endangered species in the South China Sea, China, to use a metaphor, has been found by the Court of multiple murder and rape.

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Topics: Tony Lopez , High crime in the high seas
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