Kiss and tell on South China Sea affair

On July 12, 2016, a tribunal of five judges at the Hague-based Permanent Court of Arbitration issued a highly anticipated and unanimous award in Republic of Philippines v. People’s Republic of China, a case filed in 2013 by Manila concerning maritime entitlements and the status of features in the South China Sea, among other issues.

“The Tribunal’s award is highly favorable to the Philippines, ruling that China’s nine-dash line claim and accompanying claims to historic rights have no validity under international law; that no feature in the Spratly Islands, including Taiwan-occupied Itu Aba (or Taiping Island), is an island under the United Nations Convention on the Law of the Sea (UNCLOS); and that the behavior of Chinese ships physically obstructing Philippine vessels is unlawful. Perhaps the most significant finding — and the one most likely to disturb China — is the Tribunal’s award that China’s nine-dash line and claim to historic rights in the South China Sea are both invalid under international law.”

But China totally rejected and refused to follow the Tribunal ruling (thediplomat.com, July 12, 2016).

The basic rulings are:

1. Whatever historic rights were claimed by China to resources in the waters of the South China Sea were extinguished and superseded by the exclusive economic zones (EEZ) established by UNCLOS.

2. Chinese reclamation activities in the Spratly Islands, where the country has built seven artificial islands, are illegal under UNCLOS Article 121.3.

3. Through its large-scale land reclamation activities in the Spratly Islands, China had “caused severe harm to the coral reef environment and violated its obligation to preserve and protect fragile ecosystems and the habitat of depleted, threatened, or endangered species.”

4. Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are high-tide features and Subi Reef, Hughes Reef, Mischief Reef, and Second Thomas Shoal, submerged at high tide in their natural condition, and are part of Philippine EEZ. Gaven Reef (North) and McKennan Reef are high tide features, and have their own 12 nautical mile EEZ.

“Chinese activities in the Spratlys are illegal, based on its finding that Mischief Reef, Second Thomas Shoal, and Reed Bank ‘form part of the exclusive economic zone and continental shelf of the Philippines.’”

Note that while the Tribunal stated that these features comprised the Philippines’ lawful continental shelf under UNCLOS, it did not consider the sovereignty of individual features in the South China Sea. Questions of territorial sovereignty are outside of the scope of the UNCLOS, the international treaty forming the basis for adjudication in this case (Ibid.).

Political analysts pointed out that the award’s affirmation of Scarborough Shoal as a rock and Second Thomas Shoal as a lowtide elevation suggests the status quo, where China can continue to occupy Scarborough and the Philippines can continue to treat

BRP Sierra Madre, the grounded ship at Second Thomas Shoal, as an outpost (Ibid.).

China has always been hot on the removal of the BRP Sierra Madre. A now rust-filled World War II-era landing ship tank, the

BRP Sierra Madre plays a crucial role in preserving the country’s claims in those waters. The ship was intentionally grounded there by the Philippine Navy in 1999 after China seized Panganiban (Mischief ) Reef in 1995 and transformed it from a fishermen’s shelter into a massive military outpost (Philippine Daily Inquirer, April 15, 2024). In November 2021, Chinese coast guard ships blocked and blasted water cannon at Philippine supply boats en route to the BRP Sierra Madre. The Philippine Navy and Coast Guard did not retaliate to the many succeeding attacks from China, despite Filipino sailors on resupply missions being injured and their ships damaged.

Why has the Philippines not been firm enough in exacting the Arbitral rulings on China? A Rappler analysis, “Duterte belittles Hague ruling: ‘I’ll throw it in waste basket’,” (May 6, 2021) quoted then-President Rodrigo Duterte denigrating the historic 2016 legal victory of the Philippines against China’s claims to its waters, saying the decision should end up in the trash bin. Duterte had earlier said, “In the play of politics, now, I will set aside the arbitral ruling. I will not impose anything on China,” when asked about China’s construction of anti-aircraft and anti-missile systems, on all seven of the artificial islands it had built in the South China Sea (philstarlife.com, March 24, 2021).

Retired Senior Associate Justice Antonio Carpio has long advocated for Philippine sovereignty in the West Philippine Sea. On the TV show Headstart (March 20, 2021) he reiterated that China’s incursion in Julian Felipe Reef was not the first time it had done so and that China was lying about why its vessels were there. “President Duterte from the very start of his administration has befriended China, and has considered China his best friend. In fact, Duterte said, ‘I love Xi Jin Ping’ but that love has not been reciprocated” (Ibid.).

But China called on this declared love by Duterte, and exacted its “privileges,” until Duterte’s term of office as president finished in May 2022. Ferdinand “Bongbong” Marcos, Jr. is now president of the Philippines, veering obviously away from China, and declaring a renewed fight for the rights of the country as affirmed by the 2016 Arbitral Award.

And so, it’s now “Kiss and Tell” by China, blackmail for what Duterte “did for love.”

In April, after the March 23 water-cannon attack by China on the BRP Sierra Madre, former President Duterte admitted that during his term, he entered into an informal agreement with China not to bring construction materials to Ayungin and other Philippine outposts in the West Philippine Sea to prevent tensions from escalating further, confirming what his former spokesperson Harry Roque had revealed earlier. The deal did not cover the removal of the BRP Sierra Madre, he added.

The Chinese Embassy in Manila brought up the “gentleman’s agreement” with Duterte, insisting that the Philippines “repeatedly broke its promise and went back on its word” by sending construction materials to the BRP Sierra Madre and insisted that there was a promise to tow the ship (Ibid.).

To add insult to the “Kiss and Tell” expose and betrayal, China had all the while been busy creating islets for itself on the sandbar of Pag-asa Island, a municipality of Palawan province, while it was threatening and intimidating the Philippines over the BSP Sierra Madre removal from Second Thomas Shoal. Heaps of crushed corals have been dumped onto live coral on Pag-asa Cays 1, 2, and 3 to create mounds “taller than a man’s standing height” that are now exposed during high tide. National Security Council Spokesperson Assistant Director General Jonathan Malaya said that the motive behind the dumping of crushed corals was to not merely drive away Filipino fishermen in the area, but to change its geological feature and create a low-tide elevation that could generate maritime entitlements (unitednews.net. ph, May 7, 2024).

Justice Carpio, who spearheads the continuing fight for Philippine rights under UNCLOS, warned in a “Statement on former President Duterte’s ‘temporary special arrangement’ with China” (dated May 4, 2024) that “the motive of China in piling those rubble is obvious: to create a high-tide geologic feature, that is, one that is exposed at high tide, between Pag-asa and Subi Reef. This will reverse the finding in the Arbitral Award of July 12, 2016 that the submerged Subi Reef is part of the territorial sea of Pag-asa.

“The result is that Subi Reef, which is now an artificial island hosting a huge Chinese air and naval base, will no longer form part of the territorial sea of Pagasa, whose territorial sea will be reduced by about one-third.

“However, a high-tide elevation is entitled to a 12-nautical mile territorial sea only if it is naturally formed and not man-made. A manmade high-tide feature or artificial island is not entitled to a territorial sea. That is why the dead coral rubble in Cays 1, 2, and 3 are being surreptitiously piled by China so that it will appear as naturally formed and not man-made.

“The Philippines must be prepared to bring to an UNCLOS arbitral tribunal this illegal artificial island building of China,” Justice Carpio said.

And now Defense Secretary Gilbert Teodoro, Jr. has called on the Department of Foreign Affairs to investigate how unnamed people in the Chinese embassy in Manila allegedly recorded a supposed phone conversation between a Chinese diplomat and a top Armed Forces official discussing a so-called new model agreement on rotation and resupply missions to Ayungin Shoal in the West Philippine Sea last January (Philippine Star, May 9, 2024).

More “Kiss and Tell”? ■

AMELIA H. C. YLAGAN is a doctor of Business Administration from the University of the Philippines. ahcylagan@yahoo.com