Brilliant strategy on WPS Dispute with China

SUPREME COURT Senior Associate Justice Antonio Carpio has been in the news lately because of his commencement address at the Pamantasan ng Lungsod ng Maynila (PLM) Graduate School of Law a couple of weeks ago. Rightly so. His discussion of the issues involved in our West Philippine Sea (WPS) dispute with China (actually, both Chinas -- the mainland and Taiwan) is the clearest I have come across so far. He obviously has had a hand in the shaping of the government’s legal strategy to be pursued in its case to be brought before the UN arbitral tribunal.

It is a brilliant strategy. If the case the Philippines would present were about maritime boundary delimitations, i.e., China staking claim to areas outside of the limits described by UN Convention on the Law of the Sea (UNCLOS), then we would lose even before we started, because that kind of dispute is excluded from the UNCLOS compulsory dispute settlement system, and China could cite that as a reason to refuse arbitration. My impression was that China was pretty sure that would be our strategy, and was pretty cocky about the outcome.

But as it turns out -- and here is where Carpio must have come in -- the Philippines isn’t mentioning a word about maritime boundary delimitations. Instead, it brings the fight all the way into the Chinese camp. It asks the UN arbitral tribunal to rule on whether China’s so-called 9-dashed line claim (under which practically all of the South China Sea is considered its inland waters) or its domestic laws can take away the Philippines’ exclusive economic zone, and extended continental shelf in the WPS.

The Philippines is also asking the arbitral tribunal to rule whether China can occupy and erect structures on fully submerged reefs and on low-tide elevations; whether China, again under its 9-dashed line claim or domestic laws, can unilaterally appropriate for itself maritime space in the South China Sea beyond the exclusive economic zone of any coastal state (i.e., the high seas, which under UNCLOS no state can subject to its sovereignty).

According to Justice Carpio, the Philippines comes to the arbitral tribunal with "clean hands," because our 2009 Baselines Law scrupulously followed the UNCLOS. China, on the other hand, does not, because its 1998 Law on Exclusive Economic Zone and Continental Shelf has provisions that are in gross violation of the UNCLOS. Which is why the Philippines is also asking the arbitral tribunal to direct China to bring its maritime laws in conformity with UNCLOS.

In other words, China is obviously the bad guy here.

Carpio’s speech also discusses Plan B -- what if (and this is a very big if, he says) the arbitral tribunal rules that an island in the Spratlys is capable of sustaining human habitation or economic life of its own, thus generating an exclusive economic zone? Carpio, covering all options, is also prepared for that eventuality: that the dispute then becomes a maritime boundary delimitation dispute, in which case the arbitral tribunal no longer has jurisdiction, because China will not submit to arbitration.

Under those circumstances, Carpio points out, compulsory conciliation, as provided in UNCLOS, will kick in -- and China cannot opt out of that. And here, Carpio also points out, the compulsory conciliation commission will have to consider Palawan’s more than 600-mile coastline versus the less than one-mile opposing coastline of the largest island in the Spratlys -- and distribute the economic zones proportionally.

Carpio is pretty sure we will have the law on our side. Justice is another matter, he says, because apparently the UNCLOS does not provide for enforcement measures (Carpio calls it a black hole in the Rule of Law), and we certainly can’t do it ourselves. Even if we brought it before the UN Security Council, China has veto power there.

Is it all for naught, then?

Of course not, says Justice Carpio. We have one last recourse -- the appeal to world opinion. And this is where Carpio challenges the PLM graduating class to make it their mission to help shape world opinion that a nation that refuses to follow the Rule of Law should be considered a rogue nation, an outcast in the community of nations. And China, as an aspirant to global leadership, will think twice about flouting that opinion.

But while Carpio’s PLM commencement address made the headlines, an at least equally important speech of his, did not, more’s the pity. These were remarks delivered at the launching of UP’s Institute of Maritime Affairs and Law of the Sea (IMLOS) two months earlier.

On this occasion, Carpio emphasized the importance of an IMLOS, because, he asserts, the most important foreign policy issue that the Philippines will face in the next 25 years or more will be the dispute with China in the West Philippine Sea. If China succeeds in enforcing its 9-dashed line claim, he says, it will be a national catastrophe: we stand to lose, in the Reed Bank alone (which is within our economic zone), resources amounting to almost one-half of the total "proved and provable" oil and more than one-fourth of the total natural gas resources in the South China sea. And that’s not counting the fishery resources in the area, which account for at least a quarter of our total fishery resources.

What makes winning our dispute with China even more crucial, according to Carpio, is that the mineral resources in the Philippine Exclusive Economic Zone (EEZ) will be our only remaining natural resources, "after squandering our inland natural resources above and below the ground."

He elaborates: "We allowed loggers to denude our forests in exchange for negligible forest fees. We our allowing our inland mineral resources to be extracted for a pittance. In the words of the 1995 Mining Act, ‘the total government share in a mineral production agreement shall be the excise tax on mineral products.’ Under the Tax Code, the excise tax is a mere 2% of the market value of the mineral ore at the time of removal from the mine site. We are the only country in the world giving away our mineral resources almost for free."

Carpio urges the IMLOS to not only craft the legal strategy to protect our EEZ from encroachment by foreign countries, but also to craft a fair and reasonable profit-sharing formula between the State and the private companies that will exploit the mineral resources in our EEZ. Because, he asks, "of what use is protecting, at great effort and expense, our EEZ from foreign encroachment if it will not benefit the Filipino people?" Good question.

And getting that fair share will accomplish another objective: we will have all the money we need to acquire and maintain a "minimum credible self-defense force," without which, he avers, we may still lose our EEZ in the WPS even as international law and world opinion may be on our side.

He makes eminent sense. He may have not gotten the position he deserved. But he stands mighty tall in the Supreme Court.

source:  Businessworld Column - Calling A Spade by Solita Collas-Monsod

Calling A Spade
Solita Collas-Monsod

Calling A Spade
Solita Collas-Monsod

Territories beyond maps

THE SOUTH China Sea, or "Philippine Sea" (the nomenclature insisted upon, and registered by the Republic of the Philippines) is around 3,500,000 square kilometers of the Pacific Ocean from the Singapore and Malacca Straits to the Strait of Taiwan. The area’s importance largely results from one-third of the world’s shipping transiting through its waters, and is believed to hold huge oil and gas reserves beneath its seabed, according to an Associated Press report.

Its first written name was Nanfang Hai, or simply Southern Sea, as chronicled in the Western Zhou Dynasty Yizhoushu (1046-771 BCE). There it was written that "barbarians from that sea gave tributes to the Zhou rulers, of hawksbill sea turtles," even then rare, and precious for their three-meter nacre carapace or back cover, which was carved for jewelry and inlaid tortoise-shell furniture. Those "barbarians" in the Zhou Dynasty were native pirates from the surrounding aggrupation of yet-unnamed and unclaimed islands beyond China.

Geologists say the South (China) Sea opened around 45 million years ago, when, by Teutonic explosion, a huge chunk of the continent broke away from mainland Asia at the tip of southern China. In those long millennia, the opened South (China) Sea has been the repository of large sediment volumes delivered by the Yuan (Red) River of Vietnam, the Pearl River of the Guandong delta in China, and the Mekong River, which runs through China, Burma (Myanmar), Laos, Thailand, Cambodia and Vietnam. In modern times, oil and mineral deposits were confirmed to be in almost all of the islands sprung from that Teutonic explosion millennia ago: Borneo and the Indonesian archipelago, the Philippine archipelago, the Paracel islands, and the small, now politically contested islands, the Spratlys, Sabah, even little Scarborough Shoal.

But perhaps the historicity of the politically contested islands bobbing in the China Sea goes back to the massive colonization drive of Europe in the 15th to 17th centuries. When in 1493, Pope Alexander VI issued the paradigm-setting papal bull, Inter caetera, he divided the conquerable lands east and west of Africa between feuding Catholic colonizers Spain and Portugal, respectively, and set them to claim unnamed islands as "territory." But when Spain and Portugal were passing each other toward the east or west, on the other side of the globe, one small detail -- that the world was round -- still perpetuated the "first to discover" basis of colonization. The Treaty of Tordesillas (1494) further clarified the demarcation line near the Spice Islands for half of the world for Spain, and half for Portugal.

Christopher Columbus, Italian navigator, had proposed to the King of Spain in 1492 to look for the "Spice Islands" (modern Maluku Islands in Indonesia), and to grab a Spanish monopoly for supply of spices in Europe. But instead of reaching Japan towards India as he had intended, Columbus landed in the Bahamas, which he named San Salvador. Despite never having reached the targeted East Indies, Columbus started the first lasting contact of Europe with the Americas, and the colonization of the Americas for Spain.

And so Ferdinand Magellan, a Portuguese mariner, proposed to Charles I of Spain to sail westward to still search for the Spice Islands. He was the first to sail from the Atlantic Ocean into the Pacific Ocean (the "peaceful sea") and his fleet was the first to circumnavigate the Earth (although Magellan himself did not complete the entire voyage, as he was killed by the native Filipino warrior Lapu-Lapu in Mactan, in the Philippines in 1521). Again, Magellan thought he had reached the Spice Islands.

In the frenzy of 15th- to 16th-century colonization, territory was of course the obsession. In 1635 a British jurist, John Selden broached the idea that "the sea was in practice as capable of appropriation as terrestrial territory." Conflicting claims needed clarification up to where ownership extended seawards from land. This was determined as three nautical miles (five kilometers), the actual distance within which cannon range could effectively protect the territory from the sea. Twelve nautical miles (22 km) from a coastline was eventually established as the international norm by the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

In 1898, the Philippines Islands was ceded by Spain to the United States in the Treaty of Paris settlement after the Spanish American War. In the 50 years as an American colony, the Philippines was focused on catching up with development and progress in the new world of democracy, which status as an independent nation was promised as a reward for fighting for the US in the World Wars. With true independence awarded in 1944, the fledgling nation was thereafter engrossed in establishing the bureaucracies of self-governance, in the stressful environment of reconstruction after the Wars. It was only in 1971, in the first regular term of Ferdinand Marcos as president, that the Philippines announced its claim to islands adjacent to its territory in the Spratlys, which was named Kalayaan, formally incorporated into Palawan province in 1972.

The total four-square mile Spratly Islands are a disputed group of more than 750 reefs, islets, atolls, cays, and islands in the South China Sea claimed and occupied by relatively small numbers of military forces from the People’s Republic of China, Taiwan (RoC), Vietnam, the Philippines, and Malaysia, mostly on the basis of contingency of coastline within the UNCLOS three-mile radius. The islands offer rich fishing grounds and may contain significant oil and natural gas reserves. But there’s big trouble for the Spratly claimants, as the awakened economic giant, the erstwhile anti-capitalist People’s Republic of China (PRC) has unilaterally announced a 200-mile radius outwards to the seas from its shores, as its exclusive economic zone. This goes around the various archipelagos in the South China Sea, depriving both full nations and uninhabited islands alike of their own territorial waters. That is 80% of the whole South (China) Sea, claimed by Communist China, known iconoclast to history, to be their "historical" heritage.

Strange how history seems to go back to the maritime battles of Spain and Portugal for the world, as the backdrop shows the cannons aimed at intruders to national shores, and props are the hapless little islands needed to be colonized to firm boundaries and extend power. For it is the South (China) Sea again that is the prized consolidation of greedy monopoly, like this same body of water was the coveted gateway by both Spain and Portugal for those spices from the Indies. According to the U.S. Energy Information Administration (EIA) based on a US Geological Survey estimate, the South (China) Sea region’s discovered and undiscovered oil reserves are at 28 billion barrels, (PRC figures profess 213 billion barrels). The same EIA report estimates a wide variety of natural gas resources, ranging from 900 trillion cubic feet (25.5 trillion cubic meters) to two quadrillion cubic feet (56.6 trillion cubic meters).

But the People’s Republic of China also has territorial claims on Burma, Laos, Northern India, Vietnam, Nepal, Bhutan, Thailand, Malaysia, Singapore, the Ryukyu Islands, 300 islands of the South China, East China and Yellow Seas, as well as Kyrgyzstan, Mongolia, Taiwan, South Kazakhstan, the Afghan province of Bahdashan, Transbaikalia and the far east to South Okhotsk, to recover territory lost in the fall of the Qing Dynasty. "We must conquer the globe where we will create a powerful state," former Chairman Mao Zedong had said. Territories beyond maps.

With China’s headstrong thrust to conquer and rule the world, the once dependable "Big Brother" America is pathetically helpless to help the smaller nations. Perhaps the US is economically, now politically subservient to the ruthless Emperor of the world, refreshed from a nap in communism and now in full Imperialist determination to reign forever as Heaven’s Son.


source:  Businessworld's Corporate Watch Column by Amelia HC Ylagan