Newspaper headlines blared on Wednesday last week that the South China Sea is ours, as ruled by the Permanent Court of Arbitration in The Hague. This should be cause for a national celebration but the government and the Filipino people have rightly avoided gloating amidst victory. The way forward is not an easy one, after all, with China having already built artificial islands on the reefs declared by the arbitral tribunal as our exclusive economic zone, therefore, within our territory. It does not seem likely either that China will simply move out and hand over the South China Sea back to us after it has built a naval base, an air strip and defense facilities on the reefs now declared as ours.
Just what is the significance of the decision of the South China Sea to us, Filipinos? In an interview with Senior Justice Antonio T. Carpio, aired on national television, he said the arbitral ruling confirmed that we indeed own as our exclusive economic zone that maritime space in the South China Sea with an area of about 381,000 square kilometers plus a continental shelf of about 150,000 square kilometers. The Philippine land area, Justice Carpio said, is smaller —with an area of 300,000 square kilometers. That maritime space declared as ours which is bigger than our land mass includes the fish, oil, gas and mineral resources, Carpio added. What is most significant is that within the area encroached upon by China’s nine-dash line is the Reed Bank. Explaining further, Justice Carpio said that the according to estimates, the methane hydrates present in the Reed Bank can power the economy of China for 300 years. Right now, he said, 40 percent of the energy requirement from Luzon comes from Malampaya. It’s the largest operating gas field we have and Malampaya is going to run out of gas in 10 years so there is urgency for us to develop the Reed Bank which is just beside Malampaya. The South China Sea, Justice Carpio stressed, is the future of Philippines’ energy source, food source and mineral source.
The next question that comes to mind now is, how then do we move forward? Is there a chance of getting the Arbitral Court’s ruling enforced? Back when no case was yet filed by the Philippine government under the rules of the United Nations Convention on the Law of the Sea, it seemed impossible to get a fair deal in any bilateral talks with China. From 1995 to 2012 the Philippines tried to negotiate with China but China doggedly and belligerently insisted that it owned the entire South China Sea based on an alleged historical nine-dash-line configuration. Now, with the Arbitral Tribunal’s declaration that China’s nine-dash-line claim has no legal basis, we can negotiate from a position of strength.
If bilateral talks with China are resumed, as in fact, former President Fidel V. Ramos was asked by President Rodrigo Duterte to initiate the move, what are the likely possibilities? Justice Carpio said that, as a starting point, we could consider a proposal made in the 1990s by an American marine biologist, Professor McManus, who taught in UP with respect to the Spratly group of islands which remains the subject of conflicting claims by the Philippines, China, Taiwan, Vietnam, Malaysia and Brunei. McManus said that the Spratlys should be turned into an international marine peace park. All countries with territorial claims over the islands should suspend their claims for 50 or 100 years and allow the reefs to regrow and be the breeding ground of fish. Justice Carpio said that McManus’ proposal can even be improved by converting China’s military installations in the Spratlys into marine research and eco-tourism facilities. This is not an impossibility, Carpio explained, citing what the Israelis and the Jordanians agreed upon to settle a dispute over a water area. They declared the disputed water area as a peace park. If this is achieved in the Spratlys, it will be a breeding ground of fish and everyone will benefit from it, Justice Carpio said.
If China remains stubborn and continues to reject the Arbitral ruling, what happens, then? To this, Justice Carpio replied that based on an article by a Filipino scholar, containing a survey of decisions by ICJ, the ITLOS and the other arbitral tribunals, over 95 percent of their decisions were eventually complied with. Initially the losing party would refuse to comply but in the end, they did. It may take time, Justice Carpio said, because—as in the case of China—it has to prepare its people to comply since the mindset of its people is that the South China is theirs.
Can the Philippines enter into a joint development agreement with China over what has been declared as the Philippines’ exclusive economic zone in the South China Sea? That is not allowed by our Constitution, Justice Carpio said. The Philippines can enter into a commercial contract with China where it will pay rentals to use a portion of our EEZ, or enter into a contract with foreign companies with the needed technology to, perhaps, drill or perform activities in our territory, but we must pay them as contractors. The Philippines cannot enter into a state-to-state agreement to jointly develop any portion of our territory, Justice Carpio said, because the Constitution does not allow us to give up our sovereign rights.
However the bilateral talks now go, one thing is certain. Unclos has defined our exclusive economic zone which was confirmed by the Permanent Court of Arbitration. The upper hand is ours and the international community is watching China.
Email: [email protected]
Visit: www.jimenolaw.com.ph
