Eight years on

By James Jimenez

Eight long years ago, on the 12^th of July 2016, the landmark case of The Republic of the Philippines v. The People’s Republic of China was decided by the Permanent Court of Arbitration, in the Hague. Today, eight years later, we have yet to fully reap the benefits of that victory. Worse, we find ourselves having to contend with propagandists doing their best to trivialize, marginalize, or even completely invalidate that ruling – if only in the eyes of the public. This is what happens when those in charge simply take it for granted that the vastly uninformed public will, even without a determined educational campaign on the matter, understand and fully embrace the ramifications of such momentous victories – the initial euphoria inevitably fades and doubt creeps in.

It is time to remember.

In 2013, the Philippines initiated arbitration proceedings under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS). We wanted clarity on the question of our maritime entitlements in the South China Sea; and we challenged China’s “Nine-Dash Line” which is a demarcation line used by that country to assert its claims over a large portion of the South China Sea, including areas that are also claimed by several other countries.

The Rulings

The Tribunal issued ruling in several key areas. First of all, it must be noted that maritime zones – such as exclusive economic zones – are determined based on distance from the low-tide line on land features. This low-tide line is called the baseline, and all the waters on the land-ward side of it would be considered internal waters. So for example, if you were to stand on the seashore at Villa Beach, facing the sea, all the water behind you – such as rivers and lakes – would be considered internal waters of the Philippines.

Measuring, 12 nautical miles straight out into the sea from that low tide mark, all around the land feature, gives you the territorial sea around that land feature. An additional 12 miles after that, gives you the contiguous zone. Measuring 200 nautical miles, gives you the Exclusive Economic Zone or EEZ.

In a vastly oversimplified way, this was the basis for the China’s expansive claims. It alleged that all the various maritime features in the South China Sea – rocks, reefs, and various elevations – all contributed to China’s baseline. Therefore, all the water on the side of the feature closer to mainland China had to be considered internal waters, while all the waters 12 and 24 nautical miles outward were considered China’s territorial waters, over which they had sovereignty.

But the thing is, not all maritime features are entitled to their own maritime zones. And the tribunal declared that the various maritime features in the South China Sea claimed by China were exactly that: not entitled to their own maritime zones, and, in fact, part of the Philippine continental shelf. So, if anything, the waters around these features were probably ours.

The Nine-Dash Line

The Tribunal also ruled that China’s historical rights claims, as represented by the Nine-Dash Line, were incompatible with UNCLOS. According to the tribunal, whatever historical rights China might have had were deemed extinguished when it became a party to UNCLOS, which bases maritime entitlements of states on defined zones like territorial zones, contiguous zones, etc.

Not to put too fine a point on it, China cannot now use “historical rights” because it submitted itself to UNCLOS and UNCLOS simply does not recognize the concept of “historical rights.” Ironically, the same logic underpins China’s rejection of the arbitral court’s ruling: they don’t recognize the arbitral court, therefore they don’t accept the ruling. Funny how that works out.

Violation of Sovereign Rights

And finally, the Tribunal ruled that China violated the Philippines’ sovereign rights in its EEZ by interfering with Philippine fishing and petroleum exploration, constructing artificial islands, and failing to prevent Chinese fishermen from fishing in the zone. Aggravating this offense, is the finding that China had also been unlawfully interfering with traditional Philippine fishing at the Scarborough Shoal.

And to top it all off, the Tribunal – in no uncertain terms – ruled that China’s land reclamation and construction of artificial islands had caused severe harm to the coral reef environment, violating its obligation under UNCLOS to preserve and protect fragile ecosystems. Which makes the recent Chinese denunciation of the Philippines’s activities in the area as harmful to the environment, brazenly ironic.

So we won, now what?

Now what? was the question on everyone’s lips eight years ago, when the ruling came out. It may have heightened tensions in the region, but it put the Philippines squarely in the right on the issue of the West Philippine Sea. Unfortunately, the Philippines dropped the ball, as it were, adopting an almost embarrassed attitude towards the ruling, and preferring instead to let the losing party do whatever it pleased in the contested area, and obliging our fishermen – our countrymen – to skulk around like thieves and squatters on our own waters and on territory we had every right to exploit economically.

And with the Philippines not showing interest in enforcing its rights, no one else did either. Until now. Fortunately, our deplorable lack of alacrity doesn’t negate the force of the arbitral ruling, and remain in the right on this issue – even a hundred years on. ###