Only two hours ago, the Chinese Foreign Ministry through Ambassador Ma informed Filipino diplomats that they were rejecting the notice to arbitrate and the statement of claims which the Philippines furnished the Chinese delegation in Manila to arbitrate the legality of the Chinese nine-dash lines under the compulsory and mandatory dispute settlement procedure of the UN Convention on the Law of the Sea. This means that China will now snub the arbitration and will not participate in the proceedings.
This is truly unfortunate. China has repeatedly maintained that it exercsies” undisputable sovereignty and rights” in the waters within its nine-dash lines. And yet, it has failed to explain the nature and the basis of its claims. The arbitration would have been the appropriate forum where it can regale the rest of the world with both its legal and factual basis for its claim to title to a greater portion of the west Philippine Sea. With this latest decision, the world is again left to wonder what, if any, China’s legal basis is.
The arbitration under Annex VII of the UNCLOS will of course proceed. The Philippine has appointed a former president of the International Tribunal for the Law of the Sea and still a sitting Judge in the tribunal, Rüdiger Wolfrum, a German national as its arbitrator for the proceedings. The Chinese snub now makes it incumbent on the current President of the ITLOS, Shunji Yanai, a Japanese national, to complete the five man tribunal. Thereafter, it is expected that the Tribunal will sit as the lone judge of its own competence. It will have to determine whether the issues submitted by the Philippines, to wit: the legality of the nine-dash lines, the status of the waters outside of the 12 nautical miles of the Panatag shoal, and whether low tide elevations currently occupied by China in the disputed Spratlys group of islands form part of the continental shelf of the Philippines.
China;s snub, while regretful, has nonetheless made our task to resolve the West Philippines dispute somehow easier. As in all forms of litigation, an ex-parte submission is always easier than a disputed proceeding.
It’s a relief to have a President who is standing up to a bully. Whereas GMA sought to give away Philippine territory in exchange for anomalous Chinese deals, PNoy, even with absolutely no military firepower, has advanced the Philippine claim to the Kalayaan group of islands and the West Philippine seas firmly and without hesitation. This group of islands in the West of the country was described in maps merely as “hazards to navigation” until the 70’s. That was when we discovered oil in the area. The science is since oil and natural gas products are found in the continental shelf, the soil and sub-soil constituting the prolonged landmass of the Palawan archipelago, it may be that further petroleum resources are located in the other portions of the continental shelf beneath the rocks and islets constituting the Spratlys group of islands. This explains why China, Vietnam, Brunei and Malaysia all proceeded to lay claim to part or the entirety of the Spratlys. The title of the Philippines to the islands is because of discovery coupled with effective occupation. While it was a fact that many of the disputed islands, including Spratlys Island itself, which Taiwan has referred to as “Itu Iba”; were then under Japanese control during World War II, Japan nonetheless renounced its title to them without specifying to whom it was relinquishing the title. This prompted Thomas Cloma, a Merchant Marine school owner, to claim title to the islands by way of discovery of islands that were “terra nullius”, or without an owner. This claim to discovery was then espoused by Diosdado Macapagal. We have since by law, created the Municipality of Kalayaan as the local government for the area, and appended it to the Province of Palawan. We have also since performed acts indicating the exercise of sovereignty, referred to as “effectivities”. These would include the building of military installations on islands under our control and the award of concessions to explore for further mineral deposits in the area. While our mode of claiming title to the Spratlys may not be iron-clad, as in fact, it is hinged exclusively on the assumption that it was rendered “terra nullius” with the Japanese renunciation, still, the Philippines is the only country which has scientific evidence to prove that bulk of the contested area constitute its extended continental shelf. This much we have proven in the UP Law Center’s Institute of International Legal Studies Project on the Extended Continental Shelf. Further, as we are the closest claimant to the disputed islands, we are the only one that can claim a presumption of ownership over them. And as the only archipelagic claimant country, we have a monopoly to the claim that the islands, rocks, islets and waters surrounding them form part of our archipelago. The claim to title of China and Vietnam appear to be even more porous than ours. To begin with, both countries rely on ancient historical title, which of late, has been ruled by international tribunals as almost impossible to prove. China for instance, cannot prove an intent to possess the islands in the concept of an owner because sovereignty was foreign and unknown under its Confucian legal system. Likewise, Vietnam’s claim to historical title is impossible to prove using modern day rules of evidence given that very old records cannot be authenticated precisely because the persons who executed them are no longer around to identify them. Malaysia and Brunei, on the other hand, lay claim to portions of the area solely as part of their respective continental shelves. Of course, it is still our wish that the Spratlys controversy is resolved peacefully and preferably through negotiations, binding mediation, arbitration, or even through judicial means, either before the International Court of Justice or the United Nations Tribunal for the Law of the Sea (UNTLOS). Meanwhile, it imperative that other than showing political will, that this reform-minded PNoy Administration undo GMA’s machinations which collectively, weaken our claim to the disputed area. First, there is the Joint Seismic and Exploration Agreement with China. As far as I know, the only way to prospect for oil in the continental shelf is through seismic testing. As such, these tests can only be conducted by Filipinos or through FTAA’s, if foreigners are involved. The Joint Seismic agreement, apart form violating the Constitution, will weaken our claim in the same way that an owner of disputed property weakens his claim when he agrees to use and exploit the disputed property with his adversary. Second, there is an urgent need to repeal the 2009 archipelagic baselines law, which my good friend and ally, Senator Sonny Trillanes, authored while behind bars. This law incorporates the Spratlys under the so-called “regime of islands”. A state only adopts this regime for offshore islands, or islands located so far away from its mainland. Obviously, by resorting to this method, we undermine what could be our strongest claim to the islands: that is, that not only are they proximate to us; but more importantly, they form part of our archipelago. Third, there is need to annul all the anomalous Chinese deals that were given to the past administration as consideration for our national territory. To those who have been asking how the “tongpats” could be recovered by the project proponent of the National Broadband Network, the answer is now clear: it is the Spratlys, Diwalwal, North Davao and Northrail, all of which were granted by the past administration to Chinese companies. Tongpats for national territory: unforgiveable!
