Let us get back the WPS

Can we get those islands in the West Phillippine Sea (WPS) from the frightful clutches of this modern imperialist super power called Communist China? I am referring to those islands which the International Arbitral Tribunal ruled as within the Philippine Exclusive Economic Zone.

Before we attempt to answer this question, let us try to get the facts, in as cold a manner, as we can. In 2013, during the presidency of the late Benigno Simeon “Noynoy” C. Aquino III, the Philippines instituted arbitral proceedings against China. The dispute concerned the respective “maritime entitlements” of the Philippines and China and the legality of Chinese activities in the WPS, China expressed its rejection of the arbitration. In July 2016, the Arbitral Tribunal issued its award deciding on the merits of the dispute. It ruled on three substantive issues.

The first issue was the so-called “nine-dash line” under which China claimed rights, “formed in the long historical course”, to living and non-living resources (i.e. fisheries and petroleum resources). The tribunal ruled that such claims were not in conformity with the United Nations Convention on the Law of the Sea (UNCLOS) which establishes a comprehensive maritime zones regime and allocates rights in these areas to the coastal state and other states. The UNCLOS does not permit the preservation of historic rights of any state (like China) within the exclusive economic zone (EEZ) or the continental shelf (CS) of another state (like the Philippines). By the way the EEZ is the area within 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. The islands in the WPS are areas where our country, the coastal state, enjoys exclusive sovereign rights to the exploitation of living and non-living natural resources therein.

The second issue that the Arbitral Court ruled on was the status of certain maritime features in the WPS. The tribunal went technical. Per our reading of the internet feature, the tribunal determined such certain maritime features as “islands", “rocks", “low-tide elevations” (LTEs) or “submerged banks” as they are occupied by China in the WPS. It classified Scarborough Shoal as a rock and among those features in the Spratly Islands, it found Mischief Reef, Subi Reef and Second Thomas Shoal to be LTEs, and Johnson Reef, Cuarteron Reef and Fiery Cross Reef to be mere rocks. It proceeded to emphasise that China’s construction of installations and significant reclamation work as well as its maintenance of military or governmental personnel or civilians cannot enhance a feature’s status from rock or a LTE to a fully entitled island capable of generating an EEZ and a CS and therefore, in an ordinary man’s lingo, violative of the UNCLOS.

The third issue centered on the legality of activities of Chinese officials and vessels in the areas of the WPS located within the Philippines’ EEZ and CS. As reported in the internet the arbitral court concluded that China breached the provisions of UNCLOS, in particular by (a) prohibiting fishing in areas of the WPS falling within the Philippines’ EEZ, (b) failing to prevent Chinese vessels from fishing in the Philippines’ EEZ at Mischief Reef and Second Thomas Shoal and (c) preventing Filipino fishermen from engaging in traditional fishing at Scarborough Shoal. Regarding China’s construction of artificial islands, installations and structures at Mischief Reef – a LTE which is part of the Philippines’ EEZ and CS – without the authorisation of the Philippines, the tribunal also found China to have violated UNCLOS.

Having restated the foregoing factual findings and legal conclusions of the International Arbitral Tribunal, (thanks in part to the easily understandable language of the Internet) I believe that the continued occupancy by Communist China of the islands in the WPS and its patrolling the waters therein constitute a violation of our territorial sovereignty. The Philippines must assert our rights. While we cannot get back these islands from the hands of communist China militarily, there are allowable and available remedies in Public International Law we can use. This was where former President Rodrigo Duterte failed us. Duterte, in tolerating the Chinese invasion, desecrated his constitutional duty. Perhaps, President Ferdinand Marcos Jr should take a track different from that of his predecessor.