July 16, 2016

South China Sea #CHexit decision explained in simple Taglish

Philippine social media conversations heated up as a result of the Permanent Court of Arbitration’s (PCA’s) decision on the South China Sea or West Philippine Sea issue. Participants in this free-for-all online debate can be classified into two: one that favors bilateral talks with China, and another that espouses a hardline stance that includes forming military alliance against China.

Sadly, I think there’s been a lot of confusion regarding what the PCA decision contains vis-à-vis the United Nations Convention on the Law of the Sea (UNCLOS), so let ThinkingPinoy briefly explain the exact contents of the decision in SIMPLE TAGLISH, para madaling ma-gets.

Linawin ang Terminology

First things first.

Internationally, it’s called “South China Sea” and not the “West Philippine Sea”, so let’s start calling it the “South China Sea” and stop using “West Philippine Sea”. We only started calling it the latter because of former President Aquino’s 2012 administrative order [AO 29 s. 2012], but the rest of the planet still calls it the “South China Sea”.

Besides, nowhere in the 501-page decision [PCA Case No. 2013-19] did the arbitral tribunal refer to the area as the “West Philippine Sea”. Throughout the entire 501-page document, it was called the “South China Sea”.

Parang ganito sinulatan ko lang ng pentel pen sa noo si Jim Paredes ng “Baliw”, tapos ipagpipilitan kong ang pangalan niya ay “Baliw” at hindi Jim Paredes. Kahit may label siya na “Baliw” at tinatawag ko siyang “Baliw”, Jim Paredes pa rin ang pangalan niya.

Pwede mong tawaging baliw si Jim Paredes pero sa batas, Jim Paredes pa rin ang pangalan niya.

Ganoon din sa South China Sea, kaya huwag na nating bolahin pa ang ating mga sarili. Nakakahiya.

Now that we got that issue taken care of, it’s time to go to the actual case.

Ginawa ko ito dahil wala pa akong nakikita kahit isang article na malinaw na nagpapaliwanag ng malinaw AT MABILIS kung ano mismo ang laman ng 501-page decision. Kasi, alam niyo, bago sumingit sa diskusyon, dapat ay may disenteng working understanding dapat kung ano mismo ang pagdidiskusyonan. Susmarya.

I will divide this article into three parts:
  1. What the Philippines wants
  2. What the PCA said
  3. Practical implications

Anyway, tara’t umpisahan na natin agad at nang mayari na.

What the Philippines wants

To start,  I need to explain the Philippines’ 15 submissions to the PCA, which basically describes the issues that we want the PCA to decide on. We can summarize the 15 submissions [PCA] into the following...

The Philippines wants the PCA to affirm that:

  1. China’s historic rights in the South China Sea, which forms the basis for the nine-dash line, is invalid [Memorials 1 and 2].
  2. All the “islands” in the Spratly islands do not generate maritime zones.
  3. China and its citizens unlawfully prevent the Philippines from exploiting its exclusive economic zone (EEZ).
  4. China damaged the environment.
  5. China’s construction activities are unlawful.
  6. China should be expressly told to respect UNCLOS.

At this point, some smart-ass would say, “So ano naman ang gusto ng China?”. While I want to expound on that, I chose not to because the issue here more on what the Philippines actually got out of the decision, so we can skip that. However, despite their refusal to participate in the arbitration [PCA 2015], China basically said:

China owns the Spratly Islands because of the nine-dash line which, according to China, is backed by China’s long and ancient history of occupation of the area.

Now, it’s time to list down the four (4) things that the PCA said, in relation to the Philippines’ six (6) basic requests.

What the PCA said

The UNCLOS decision is as follows:

First: The Nine-dash Line and Historic Rights are invalid.

According to the decision [PCA]:

“The Tribunal found that China’s claim to historic rights to resources was incompatible with the detailed allocation of rights and maritime zones in the Convention and concluded that, to the extent China had historic rights to resources in the waters of the South China Sea, such rights were extinguished by the entry into force of the Convention to the extent they were incompatible with the Convention’s system of maritime zones were extinguished by the entry into force of the Convention to the extent they were incompatible with the Convention’s system of maritime zones.”

China’s historical rights argument essentially states that China thinks the disputed areas belong to them because history suggests that they have been in control of the area before anyone else. However, PCA decided that this claim is incompatible with UNCLOS and even if such claim is valid, China’s entry into UNCLOS extinguished those rights.

In short, the Nine-dash line has no basis per UNCLOS and because China signed UNCLOS, China has no right under UNCLOS to claim ownership of the disputed area. That is, China SHOULD drop its Nine-dash line claim.

Ekis na ang nine-dash line. Sabi ng PCA, ka-echusan lang daw ‘yon.

Second: Spratly Islands DO NOT create maritime zones

According to the decision [PCA]:
“The Tribunal concluded that all of the high-tide features in the Spratly Islands… are legally “rocks” that do not generate an exclusive economic zone or continental shelf…The Tribunal also held that the Convention does not provide for a group of islands such as the Spratly Islands to generate maritime zones collectively as a unit.”

Basically, the land features found within the Spratly Islands do not “legally” qualify as islands. This distinction is important because islands generate 12 nautical mile (12 NM) territorial waters [UNCLOS Part II Sec 3 Art 3], and everything within the area is sovereign property of the country that owns the island. Rocks, meanwhile, generate neither territorial waters (TW) nor Exclusive Economic Zones (EEZ) [UNCLOS Part V Art 57].

BRIEF: Sovereignty vs Sovereign Rights [CM]
Sovereignty bestows full rights, or supreme authority, on a country within its territorial waters, which stretch to 12 nautical miles.

Sovereign rights in an EEZ, which are much further out to sea, “no longer concerns all of [a state’s] activities, but only some of them”, according to UNCLOS. In the Philippines’ case, that would include the exploration and exploitation of its undersea natural resources.

In simpler terms, ‘pag within 12 NM radius, absolute ownership. Lagpas sa 12 NM at within 200 NM, solo na exploitation lang ng resources ang karapatan mo.

But then, for either TW or EEZ to exist, there has to be an island from which to base the EEZ/TW boundaries on. Kaya lang, wala ngang island dahil classified lang as rocks per UNCLOS.

Third: Chinese Activities in the South China Sea

According to the decision [PCA]:
“(Regarding) China’s recent large-scale land reclamation and construction of artificial islands… The Tribunal concluded that China had violated its obligations to refrain from aggravating or extending the Parties’ disputes during the pendency of the settlement process.”

Simple lang to. The tribunal said China violated UNCLOS when it constructed the islands and when it harassed Filipino vessels. 'Yun na yun.

Fourth: Future Conduct

According to the decision [PCA]:

“The Tribunal considered the Philippines’ request for a declaration that, going forward, China shall respect the rights and freedoms of the Philippines and comply with its duties under the Convention... The Tribunal therefore considered that no further declaration was necessary”

Basically, the Philippines wanted PCA itself to explicitly tell China to comply UNCLOS. PCA said this is unnecessary.

Medyo napahiya tayo sa last na ‘yan, pero ok lang. ‘Yun lang.

Some Major Practical Implications

I would like to point out that Sass Rogando Sasot recently wrote a quick Q and A article about the PCA decision, I suggest that you read that short Tagalog article ASAP.

ARTICLE: #CHexit FAQ: Mga Katanungan tungkol sa Philippines vs China Arbitration Case

Tapos, kung hindi mo kilala si Sass, check mo to:

The video above shows Sass Rogando Sasot speaking about "Opposing grave Human Rights Violations on the basis of Sexual Orientation and Gender Identity" at the United Nations Headquarters in New York, 10 December 2009.

The panel discussion was organized by the Permanent Missions to the United Nations of Argentina, Brazil, Croatia, France, the Netherlands, Norway and Sweden on the occasion of the International Day of Human Rights.

Sass is one of the most vocal personalities with respect to the 2016 #CHexit issue.

Sass has over 10 years of international relations experience. Se has worked with people at the international level, such as international NGOs, private international defence and consultancy firm (on chemical, biological, radiological, nuclear threats), and high-level diplomats.

Sass Rogando Sasot graduated with a Combined Major in World Politics and Global Justice, minor in International Development, magna cum laude, sa Leiden University College in The Hague, Netherlands. Some of her key courses are International Law, Jurisdiction, Transnational History, Sovereignty and Statehood, Peace and Conflict Psychology, Conflict Resolution and Settlement. Under a former NATO Secretary-General, Sass also studied Foreign Policy and Diplomacy and Multilateral Institutions.

Sass also studied US Foreign Policy and Chinese International Relations in UCLA, and "Global Poverty, Local Solutions" sa International Institute of Social Studies.

Sass is currently doing her master's in international relations at Leiden University, working on her thesis on the South China Sea conflict.

Now, I will list down some of the major practical implications of this UNCLOS decision.

1: Violation vs Penalty

PCA said China violated UNCLOS, but it clearly DID NOT prescribe any penalties, chiefly because it has neither the power nor the authority to do so. In Tagalog, sinabi ng PCA na nagkamali ang China sa mga pinaggagawa nila, pero wala silang binigay na parusa dahil wala silang “K” na magpataw nito.

This is the primary criticism against the arbitration procedures since the 2013. If there is no way to enforce the decision, what’s the point of having to coming with a decision? Apparently, for PNoy, the idea of being told we are right is important even if it has no real economic value.

May decision, pero wala naman pang-enforce. May decision, pero wala naman tayo magagawa kung ayaw sumunod. Yes, basically, we fought sa PCA para sa “Ganda lang” rights.

2: Applicability

While the PCA said China neither has territorial waters nor EEZs in the contested area, it is clear that it did not explicitly declare that the contested area is “owned” by the Philippines. There’s a reason behind this.

You see, the PCA decision applies only to the parties to the case, i.e. China and the Philippines. It does not, however, apply to all other claimants in the area. That basically means Vietnam, which claims the ENTIRE Spratly Islands, is not affected by the decision.

This means we still need to negotiate with Vietnam before doing anything in the Spratly Islands. Malaysia is also a claimant of part of the Spratly Islands, so we will also need to negotiate with them if we want to exploit areas that overlap with Malaysia’s claims.

Yes, sobrang limited ng desisyon na ito dahil very specific lang ang area na binanggit ng Pilipinas doon sa demanda. Pero bakit ba ganoon kaliit na area lang ang ipinaglaban ng Pilipinas?

Sa totoo lang, hindi ko rin alam. But if you’ve read my previous article “The South China Sea Decision and Perfecto Yasay's Face”, it appears that the initial point of conflict was Reed Bank, because Manny Pangilinan and Mar Roxas’ Philex tried to explore it in 2011 and the Chinese prevented it.

3: Sovereign Rights

Given that most areas in the South China Sea are contested by more than two claimants, it is reasonable to infer that we can, at least in theory, explore those which are contested by China and the Philippines lang.

First, let’s look at a map of the South China Sea that shows the overlapping claims of each country:

Now, we can see the area just a bit to the west of the Philippines where Scarborough Shoal belongs. That polygon is the area that concerns China and the Philippines only. See the PINK AREA on the image below:

And that’s what all the fuss is about.

Let’s call that area “PCA Polygon”.

Note that the Reed Bank (Recto Bank) is just below Scarborough Shoal and is well within the PCA Polygon.

So, do you now understand my suspicion? Baka mamaya, alam na ng mga Aquino na yan lang ang malinaw na madedesisyunan. Pero ok lang din, dahil diyan lang naman may konrata ang Philex ni MVP at Roxas.

Kagigilas, no?

4: The Taiwan Issue

Now, at this point, it’s clear that China doesn’t want us to exercise our sovereign rights in the PCA Polygon. But what if China, by some miracle, decides to allow us to do what we want?

Then we will have to deal with Taiwan, because Taiwan’s claims are virtually identical to China in as far as we’re concerned. See image below:

Yes, Taiwan is not an UNCLOS signatory. Heck, it’s not even part of the UN, and many countries – including the Philippines – do not formally recognize it. However, the fact remains that we try to maintain good PH-Taiwan relations, as we have thousands of OFWs working there.

We have already pissed off Taiwan after the 2013 Guang Da Xing No. 28 incident [GovPH], and now, we want to piss them even more?

Best Course of Action

Strike a deal with China. If the best deal possible is unconstitutional or too disadvantageous for us, then cease discussions. The problem, however, IS WE NEVER EVEN TRIED.

This is a win-win situation, especially because it may allow us not only to exploit previously untappable resources, but also to leverage Mainland China’s might to silence Taiwanese dissent over the prospective venture.

Ayan na e, low-hanging fruit o. Nakaka-haggard. Ulit-ulit na lang.


If you want a more detailed explanation, check the following articles:

  1. The South China Sea Decision and Perfecto Yasay's Face
  2. #CHexit FAQ: Mga Katanungan tungkol sa Philippines vs China Arbitration Case
  3. Dreaming of forming a military alliance against China? Learn from SEATO's experience

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