Thrasymachus, one of the leading Sophists of the classical period, once said that justice is the interest only of the weak and that the unjust person is superior in character and intellect.
This observation, no matter how revolting to reason, seems to be a truism in the dispute between China and the Philippines over the West Philippine Sea. But is such really the case? Is the Philippines, in seeking justice and advancing its rights over the West Philippine Sea, weak? Is China, in unjustly occupying the said disputed maritime entitlement, superior in character and intellect?
The claim of China over the West Philippine Sea is not something new. As early as in 1947, China, through its Kuomintang Government, advanced its eleven-dashed line claim. In a map which it released in 1948, said claim was embodied. In the said map, a broken U-shaped line was formed by connecting the eleven dashes which covers almost the entire West Philippine Sea.
The map’s title, Location Map of the South Sea Islands, is an indication of China’s claim not to the sea, but to islands found therein. And in so publishing, China gave neither explanation of the basis and meaning of the eleven dashes, nor did it give their respective coordinates. And the enclosure, or the U-shaped line, covers four islands namely the Spratlys (Nansha Islands), the Pratas (Dongsha Islands), the Macclesfield Bank (Zhongsha Islands), and the Paracels (Xisha Islands). As to any claim over the waters that surround the said islands, China had nothing to say.
One aspect noteworthy is the fact that the Scarborough Shoal (Huangyan Island) was not specifically indicated in the said map. Therefore, when talking about the eleven-dashed line claim of China in 1947, the Scarborough Shoal is not among the islands being claimed. What is more, the Macclesfield Bank, being wholly submerged, does not possess the characteristics of an island.
Two years later after the publication of the said map, China, without ratiocination whatsoever, removed the two dashes of the eleven corresponding to the Gulf of Tonkin. With only nine dashes remaining, the claim would be known by the world as China’s nine-dash line claim.
But the nine-dash line claim of China over the West Philippine Sea had yet to be officially announced to the world. It only happened in 2009 embodied in a protest China made before the United Nations. In that year, two countries namely Malaysia and Vietnam, through their joint submission to the United Nations, claim their extended continental shelf. To these claims, China vehemently protested. As a basis of its protest, China advanced its nine-dashed line claim before the United Nations and made an adamant the statement about its indisputable sovereignty over all the islands and the adjacent waters covered by the U-shaped line formed by the nine dashes, as well as sovereign rights and jurisdiction over the relevant waters found therein.
Not surprisingly, China again neither gave the respective coordinates of the nine dashes, nor it provided for the explanation and basis of the nine dashes. In no certain terms did China also define the terms “relevant” and “adjacent” waters. These terms are not embodied in the United Nations Convention on the Law of the Sea (UNCLOS).
The claim of China over islands in the West Philippine Sea as represented in the nine-dashed line map is devoid of legal anchorage in international law. Under the UNCLOS, the well-settled rule is that land dominates the sea. This means that all grants of maritime entitlements are to be measured starting from a continental land’s coastal baselines, islands or rocks above water at high tide. As can be gleaned from the map containing China’s nine dashes, the claim does not meet the basic doctrine of UNCLOS for it to be accorded maritime entitlements.
Chinese legal luminaries such as Zhiguo Gao, Bing Jia and Keyuan Zuo are also of the position that China’s claim is beyond their maritime entitlements in accordance with UNCLOS. Instead, they speculate that China’s claim over the West Philippine Sea to exploit the resources found therein is based on historic rights that can be traced early in history. In other words, the aforementioned Chinese legal luminaries themselves are very aware that what China claims under its nine-dashed line map is way beyond its maritime entitlements as provided for by UNCLOS. This claim of China to the extent of depriving its neighboring coastal states of their own maritime entitlements both their exclusive economic zone and extended continental shelf is unprecedented. In effect, China, through its nine-dashed line claim, wants to assume sole right to and possession of the resources found in the entire West Philippine Sea disregarding the fact that other coastal states and land mass are at the border of the said sea.
To buttress its nine-dashed line claim, China uses historic rights arguments. Accordingly, it argues that the West Philippine Sea was, as early as in the 15th century, visited by Admiral He in his sea voyages and thus was historically part of China. However, in the case of The United States of America versus The Netherlands, it was held that a state cannot maintain title to territory based on discovery alone where subsequent to such discovery another state has shown continuous and peaceful display of territorial sovereignty over the same territory. In the same case, it was also held that the rule in international law has been that discovery alone does not vest title, which can only arise if followed within a reasonable period by continuous and peaceful display of sovereignty through effective occupation. This principle in international law contemplates actual possession.
In its decision dated 11 September 1992, the International Criminal Justice allowed a state to invoke historic rights to claim only a territorial sea or internal waters in deeply indented bays or gulfs along the coast of the mainland. But with respect to maritime entitlements particularly the exclusive economic zone and extended continental shelf, historic rights or titles have no bearing. Article 5 of UNCLOS grants the adjacent coastal state with sovereign or supreme rights over its exclusive economic zone removing the least possibility of other state claimants based on historic rights or titles. In conjunction with this, Article 77 (3) of UNCLOS provides that without the express consent of the coastal state, no other states may exploit the natural resources in the exclusive economic zone of the adjacent coastal state. In the case of Germany versus Denmark, it was held that by virtue of its sovereignty over land, a coastal state has ipso facto and ab initio inherent right to a continental shelf. Similarly, Article 77 (3) of UNCLOS provides that a coastal state’s right to a continental shelf does not depend upon any occupation or proclamation.
The United Nations Convention on the Law of the Sea (UNCLOS), being the constitution for the seas and oceans of the earth, is the applicable law governing maritime disputes among its member states. According to Justice Carpio of the Supreme Court of the Philippines, UNCLOS codified customary international law, introduced novel concepts like the exclusive economic zone and the extended continental shelf, and institutionalized the common heritage of mankind. Being considered as the most comprehensive treaty developed by man, UNCLOS took effect on 16 November 1994. From the date of its adoption, 167 states as well as the European Union have ratified it.
Under UNCLOS, the well-settled rule in international law is that land dominates the sea. In the case of Germany versus Netherlands, it was held that the land is the legal source of the power which a State may exercise over territorial extensions to seaward. And if the coastal state does not explore the continental shelf or exploit its resources, no one may undertake such activities without the express consent of the coastal state [Article 77 (2), UNCLOS].
Article 3 of UNCLOS provides that continental land, islands, and rock above water at high tide are entitled to a territorial sea of 12 nautical miles measured from the baselines along the coast. On the other hand, continental land and islands capable of human habitation or economic life of their own are entitled to a 200 nautical mile exclusive economic zone from the baselines along the coast or 188 nautical miles measured from the outer limits of its territorial sea (Article 57, UNCLOS). Moreover, such continental land or island is entitled to an extended continental shelf not exceeding 150 nautical miles measured from the outer limit of its exclusive economic zone (Article 76, UNCLOS). As defined by Article 121 of UNCLOS, an island is a naturally formed area of land, surrounded by water, and above water at high tide. But rocks not capable of human habitation or economic life of their own are only entitled to a territorial sea of 12 nautical miles. And article 13 of UNCLOS provides that a low-tide elevation which is a naturally formed area of land surrounded by water, above water at low tide but submerged at high tide is only part of the continental shelf, and is not land or territory, and thus has no territorial sea, territorial airspace or any maritime zone. Given these pertinent provisions of UNCLOS, what China claims in the West Philippine Sea through its nine-dashed line map are mere rocks incapable of human habitation or economic life of their own and low-tide elevation not entitled to a territorial sea being a part only of its adjacent continental shelf.
Both China and the Philippines have ratified UNCLOS and are thus member states. However, with its continued expansion in the West Philippine Sea, China’s fidelity with UNCLOS becomes questionable. Its nine-dashed line claim runs counter to its presumed faithfulness to UNCLOS being its member state who had ratified said Convention on 7 June 1996.
According to Encyclopedia Brittanica, China took over the Amphitrite Group of the Paracels and Itu Aba in the Spratlys following the defeat of the Japanese in 1946 in the aftermath of World War II. This moved the defense perimeter of China southward. In 1974, China forcibly dislodged the South Vietnamese from the Crescent Group of the Paracels (Encyclopedia Brittanica). Then, as evidenced in The China Post by Joe Hung, China forcibly evicted Vietnam from the Johnson South Reef in 1988, moving farther south China’s defense perimeter in the Spratlys. As reported by Asia Maritime Transparency Initiative (2016), China seized Subi Reef from the Philippines by erecting a radar structure and military facilities on the reef. Subi Reef is a low-tide elevation outside Philippine exclusive economic zone but within its extended continental shelf, thus forming part of Palawan’s continental shelf. Under UNCLOS, only the Philippines can erect structures or create an artificial island on Subi Reef (Asia Maritime Transparency Initiative). Then in 1995, as recorded by Richardson (1995), China seized Mischief Reef from the Philippines. In the same report, it was documented that China dredged Mischief Reef and created a 590-hectare artificial island, hosting an air-and-naval base with a three-kilometer military grade runway. Under UNCLOS, only the Philippines can exploit the natural resources in or erect structures on Mischief Reef (Richardson, 1995).
That is not the end of China’s expansion in the West Philippine Sea. In 2012, China seized Scarborough Shoal from the Philippines (Torode, 2012). From April to June 2012, there was a standoff between Philippine and Chinese vessels around Scarborough Shoal where the Americans brokered a mutual withdrawal to which both sides agree. China did not withdraw its vessels and instead it informed the Philippines that its vessels would remain permanently in Scarborough Shoal. Then in 2015, as reported by Blanchard, Mogato, and Wu (2015), China conducted its first air-sea military drill in the Bashi Channel between Taiwan and the Philippines where China announced that in the future it would conduct regular air-sea military drills in the Bashi Channel.
China must not be left unhampered in its expansion in the West Philippine Sea because what is at stake is, as estimated by Justice Carpio, 80 percent of the our exclusive economic zone comprising 381,000 square kilometers of maritime space, including the entire Reed Bank and part of the Malampaya gas field and 100 percent of our extended continental shelf approximately 150,000 square kilometers of maritime space. Justice Carpio further claims that China’s nine-dashed line claim encroaches on over 531,000 square kilometers of Philippines’ exclusive economic zone and extended continental shelf , including all the fishery, oil, gas, and mineral resources found within this vast area, which is larger than the total land area of the Philippines.
The Philippines never consented to this grave aggression. Or so it seems until the present administration.
Under former Philippine President Aquino, the Philippines initiated arbitration proceedings against China on 22 January 2013 before the Permanent Court of Arbitration. In its statement of claim submitted to the Arbitral Tribunal, the Philippines had five claims. First, it claimed that China’s claim to historic rights beyond its territorial sea is contrary to UNCLOS. The nine-dashed line has no legal basis and cannot generate any maritime entitlement (territorial sea, exclusive economic zone or extended continental shelf). Second, the Philippines claimed that there is no geologic feature in the Spratlys that is capable of human habitation or economic life of its own so as to generate a 200 nautical mile exclusive economic zone that can overlap with the Palawan’s exclusive economic zone. Third, it claimed the Arbitral Tribunal has jurisdiction to rule on the maritime entitlement and status of geologic features in the West Philippine Sea whether low-tide elevation or high-tide elevation. These are not sovereignty disputes. A claim to an exclusive economic zone is not a claim to sovereignty because a state cannot exercise sovereignty over its exclusive economic zone which is a maritime entitlement first created and governed by UNCLOS. Fourth, the Philippines claimed that Scarborough Shoal is a rock above water at high tide, and is entitled only to a 12 nautical mile territorial sea. Filipino fishermen have traditional fishing rights in the territorial sea of Scarborough Shoal regardless of which state exercises sovereignty over the shoal. And finally, the Philippine claimed that China, in building structures in the disputed areas, have caused severe harm to marine environment.
In its award dated 12 July 2016, the Permanent Court of Arbitration upheld the positions of the Philippines both with respect to jurisdictional and substantive claims. It is an empty victory not because China does not honor the said decision of the Arbitral Tribunal but because the present administration of the Philippines seems to adopt a new policy abandoning its claims as embodied in its protest before the Permanent Court of Arbitration. Just early this year, Former Foreign Affairs Secretary Cayetano announced the intention of the administration to conduct joint exploration in the West Philippine Sea with China. This, logically and legally, constitutes implied submission of our sovereign, exclusive and supreme rights over the West Philippine Sea.
When the Philippines brought this matter before the Arbitral Tribunal and sought justice, it did so not because it is weak but because its position is correct with a sound foundation in fact and in law. It chose that forum because there, warships and advance weaponry do no harm to anybody. In that forum, the only arrow that hurts is the truth.
And China, in disregarding the award of the Arbitral Tribunal, did so not because it is superior in character and intellect. It did so because the arrow of truth has hit it right in its heart. Due to its resources, however, it managed to survive. And due to our officials’ failure, the arrow was returned at its bow and is now aimed at us.
In seeking justice, the Philippines is not weak. It is at war in a battlefield where no army marches. It is at war with its greatest enemy: its own self. And we will win because our moral courage outweighs our physical weakness.