The arbitral judgment

SCARBOROUGH Shoal is what we call “Bajo de Masinloc.” Cuarteron Reef is known to us as “Calderon Reef,” while Fiery Cross Reef is “Kagitingan Reef.” Johnson Reef is, for us, “Mabini Reef,” while Mischief Reef is “Panganiban Reef.” It is this plurality of names — international, Chinese and Philippine nomenclature — that can make reading the decision confounding.

Following the Convention on the Law of the Sea, the tribunal distinguishes between a low-tide elevation — an area of land that emerges at low tide but is submerged at high tide — and an island. A low-tide elevation has no territorial sea of its own. This differentiates it from an island, which is a naturally formed area of land surrounded by water and above water at high tide. Because of the position of the tribunal that a feature is to be characterized according to its natural state and not according to enhancements introduced, even if a low-tide elevation should resultantly become visible at high tide or even habitable, it remains a low-tide elevation in law. Interestingly, the tribunal holds, as a matter of law, that such lowtide elevations are not part of the land territory of a State but to its territorial sea or continental shelf, the latter being a submerged prolongation of the land mass of a coastal State. But because the State exercises sovereignty (not merely sovereign rights) over its territorial sea, it also exercises sovereignty over low-tide elevations within its territorial sea.

On the basis of scientific data made available to the tribunal as well as those that it obtained on its own initiative, the tribunal finds that the Scarborough Shoal is a high-tide feature. Calderon Reef is likewise a high-tide feature, as is Kagitingan (Fiery Cross Reef). By contrast, Mischief Reef is a low-tide elevation. The Ayungin Shoal (The Second Thomas Shoal) is a low-tide feature within the Philippines’ exclusive economic zone (EEZ). This being the case, only the Philippines can legally construct an artificial island — and contrary to the posturing of some pro-China apologists, the deliberate grounding of BRP Sierra Madre that is manned by Philippine Marines is perfectly within the rights of the Philippines. It is the periodic provisioning of the uniformed personnel on board this grounded vessel that has been the occasion for abusive and provocative Chinese maneuvers.

In respect to Mischief Reef and Ayungin Shoal (Second Thomas Shoal), the tribunal was clear: They are located within the 200 nautical mile expanse of the Philippine exclusive economic zone and thus form part both of its EEZ and its continental shelf. Article 56 of the Convention grants the Philippines the exclusive right to establish and use artificial islands, installations and structures, including gas and oil platforms.

Turning to the provision of the Convention that “rocks that cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf,” the tribunal engages in an analysis of each term in the provision. One of the important points made in this portion of the award is that what is called for is not an inquiry into whether the feature actually sustains human habitation or human life (as human intervention can make it so capable) but whether, objectively, the feature is “apt, able to, or lends itself to human habitation or economic life.” Likewise required is that the feature must provide food, drink and other necessities of human life over a period of time. Habitation must be non-transient, and a feature that is treated merely as an extraction site will not be deemed, by that token, to be capable of sustaining human life or economic activity. It is not economic value that the provisions of the Convention demand but sustaining economic life which the tribunal takes to refer to the life and livelihoods of the human population. If a feature is, therefore, completely barren of vegetation and lacks drinkable water and sources of food necessary even for basic survival, it lacks the capacity to sustain human habitation.

What the tribunal ruled in regard to the Spratly Islands is linked to its discussion on the requirements of a feature that generates an EEZ and a continental shelf. The tribunal finds that while some islands of the Spratly group have military personnel stationed on them, this is not the human habitation required by law — for aside from being transient (depending on the personnel’s tour of duty), they rely on supplies from beyond the islands that must be periodically replenished. The tribunal concluded that Ito Aba, Thitu — which is Pag-asa Island to us in the Philippines — West York, Spratly Island, South-West Cay and NorthEast Cay are not capable of human habitation within the contemplation of law. The result, of course, is that none of them are entitled to an exclusive economic zone or a continental shelf — without prejudice to the territorial sea to which islands are entitled.

Under Section 2 of Republic Act 9522, which set forth the reference points for the archipelagic baselines of the Philippines — conformably with the Convention — express provision was made for the “Regime of Islands” to apply to the Kalayaan Island Group and the Scarborough Shoal. PD 1596 constituted the Kalayaan Island Group as a separate municipality of the province of Palawan. Since the tribunal held that the Spratly Islands — of which the Kalayaan Islands are part — do not constitute an “archipelago” for failing to meet the requisite proportion of water to land as laid down in the Convention, each island generates its own territorial sea — without the EEZ and the continental shelf. The “Regime of Islands” is likewise provided for by the Convention on the Law of the Sea insofar as it provides that islands are entitled to a territorial sea, a contiguous zone, an EEZ and a continental shelf, except when they cannot sustain human habitation or economic life. Neither can they be enclosed within the archipelagic baselines of the Philippine archipelago, as the lines would deviate beyond the permissible limits under the Convention.

It is my hope that through this series of columns on the arbitral award, our countrymen become better informed with respect to what has been declared by a tribunal of competent jurisdiction to be ours under the aegis of international law — rights that we must, if we are not to fail ourselves and future generations, jealously hold, defend and cherish!