By Romel Regalado Bagares, Esq.
The recent incident at the Scarborough shoal is no doubt the most brazen move thus far by the region’s certified Biggest Bully – China – in the escalating history of its altercation with the Philippines over territory.
From reports, it appears that the Philippine Navy’s BRP Gregorio Del Pilar had discovered eight Chinese fishing vessels poaching large quantities of endangered marine species, including live sharks, at the shoal. The resulting standoff – and our seeming inability to act decisively on a critical national security concern –further showed the vulnerabilities of the Philippines in a dispute over territory with an emergent world economic and military power.
But there are two ways of looking at the territorial dispute, which I will call the “thick” and the “thin” approaches. Our new baselines law, Republic Act 9522, classifies Scarborough shoal as a regime of islands under Art. 121 of the Law of the Sea Convention (LOSC). Under LOSC, a regime of islands has its own territorial sea, Exclusive Economic Zone (EEZ) and Continental Shelf.
Obviously, RA 9522 assumes that the shoal is part of Philippine territory in the fullest sense of the term. From that perspective, the reckoning point therefore is the shoal as an island grafted into Philippine territory.
It is what I call the thick approach, precisely because the claim to be made from it is full sovereignty as understood in the national territory clause of the Constitution. Since it is a regime of islands, a case can well be made that what the Chinese fishing vessels did was violate its territorial sea, given the facts available to us. Given the shoal’s classification under RA 9522, it would appear that the Chinese had violated its territorial sea, which extends from its coast up to a distance of 12 nautical miles.
The thin approach is what the Department of Foreign Affairs (DFA) has been saying all this time: that the Chinese violated our EEZ, reckoned from the base points off the coast of Zambales, as from those points, the shoal, which is about 137 nautical miles away from Palauig town in the province, no doubt falls within the said maritime regime. This approach is so-called, because under the EEZ, the Philippines has “sovereign rights” to the marine resources found in the area, to the exclusion of all the others.
The regime of sovereign rights is not the same as full sovereignty. It is limited only to the economic exploitation of resources found in the shoal, subject to certain conditions, and cannot be equated with the full exercise of sovereignty control of every piece and bit of territory there in the concept of an owner. It is otherwise known as “protective jurisdiction.”
But either way – thick or thin – we may now have a way to take the Chinese to compulsory arbitration with a final and binding judgment, which they have not been keen on doing.
The thin approach does not even require the Philippines to assert that the shoal is a regime of islands. The shoal may well be no more than rocks or coral reefs but even China recognizes that the area falls within the Philippine EEZ, except that they maintain that the Philippine claim to sovereign rights falls in the face of China’s mainly historic title to the shoal (which claims are highly doubtful, from the point of view of contemporary international law, which generally dismisses historic title as ineffective).
What the DFA doesn’t seem to realize, Prof. Harry Roque notes, is that the issues surrounding the shoal are different from those in the Spratlys.
Unlike issues involving the exercise of sovereign rights, which are subject to the compulsory jurisdiction of the International Tribunal on the Law of the Sea (ITLOS), conflicting claims to both maritime and land territory – as what obtains in the Spratlys – will require the consent of China to litigate.
“The point is,” says Prof. Roque, “with the incursion of China in an undisputed maritime area under the sovereign right of the Philippines, we could avail of mandatory and compulsory jurisdiction of the UN’s ITLOS, which we could not otherwise resort to in the case of the Spratlys.”
The general principle in the LOSC is that any dispute over the interpretation or application of a provision of the treaty is subject to the system of compulsory binding dispute settlement. Thus, by becoming a party to it, State Parties consent to disputes being referred to adjudication or arbitration.
Not many people know that China is also party to the Law of the Sea Convention, except that on August 25, 2006, it has invoked the so-called art. 298 exception, which allows it to opt out of compulsory arbitration in cases of disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction as well as sea boundary delimitations, or those involving historic bays or titles.
However, China, under this declaration, cannot say that by virtue of the art. 298 exception, it cannot be dragged into an arbitration because the events at Scarborough shoal concerns a dispute on law enforcement activities in regard to the exercise of sovereign rights. This is because it has already conceded that the shoal falls within the Philippine EEZ and is well beyond its own EEZ.
Under art. 297 (3) of the LOSC, it is the coastal state, in this case, the Philippines, which has the option “ to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations.” That right does not belong to the offending state, China.
Indeed, in its declaration on June 7, 1996 – the date it ratified the LOSC – China announced that in accordance with the Law of the Sea, “the People’s Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf.” The shoal is already beyond the scope of this declaration because it has already conceded that it lies within our EEZ.
According to Prof. Roque, this may well be our strongest suit, since the issue involved is cut-and-dried: did China, which has accepted the shoal in question as part of the Philippine EEZ, violate the Philippines’ sovereign rights over the waters surrounding the shoal?
Meanwhile, the “thick” approach — which is also favored by some Filipino Law of the Sea experts like my law school contemporary, Dr. Lowell Bautista, a research fellow at the Australian Centre for Ocean Resources and Security — is anchored on the classification of the shoal as a regime of islands. The Philippines may take China to a compulsory arbitration with the ITLOS under Art. 288 of the LOSC on a question of interpretation: given the physical configuration of the shoal, is it in fact an island?
The answer to the question will open the door for further clarification on which rights the Philippines would be entitled to claim over the area. One advantage to this approach is that even the Chinese themselves consider it an island, as they in fact, call it the Huangyan Island. So they are already bound by that characterization, and would not be able to effectively dispute an affirmative answer to the question by the international tribunal.
Note that resorting to the thin approach does not necessarily mean waiving our claims to the shoal as an island squarely belonging to the Philippines as its owner. The two approaches are not mutually exclusive.
In either case, we can immediately sue China before the ITLOS, with the added incentive that the international tribunal has the power to issue provisional remedies, such as prohibiting any of the parties from doing something that would disturb the status quo while the case is being heard.
But the obvious limitation to the thick approach is that resolving the question is only the first step; it does not really address the question of ownership of the island. For that, we will need more than the Law of the Sea; following the ruling of arbitrator Mr. Max Huber in the landmark Las Palmas arbitration, we will have to resort to general international law requirements for establishing ownership, in particular the various indicia of “effective occupation”, such as enforcement of fishery laws, customs and taxation management, attachment to local government control and the like.
Of course, the next question is, given the bullying tactics of China, how do we establish effective occupation over the shoal – is the P-Noy administration up to the challenge? Or is it even willing to do what past administrations have failed to do: sue China before the ITLOS on even just a question of sovereign rights over the shoal?
*(4/15/12) the author is Executive Director of the Center for International Law, an NGO dedicated to the promotion of the Rule of Law in the Philippines and Asia through binding international legal norms, and a professorial lecturer in public and private international law at the Lyceum Philippines University College of Law.