The West Philippine Sea: pride and consequence

Trade Tripper
Jemy Gatdula

Posted on March 11, 2016

Just because one can doesn’t mean one should. And just because one has the right doesn’t mean one is always correct to act on that right. Something to think about considering that the international arbitral tribunal deciding the Philippine case against China on the West Philippine Sea may release its decision this April or May. Leading to another thing to ponder on and that is: be careful of what you wish for.

Right now, we really need to demand knowing from the government the benefits it expected from this case vis-à-vis the risks that will certainly arise. Note that due to the technicalities inherent in the UN Convention on the Law of the Sea, the claim filed by the Philippines never involved asking the tribunal for a determination of who owns what.

Rather, the case is merely about the Hague-based arbitrators declaring whether certain areas qualify (or not) under specific concepts provided by the law of the sea. Doubtless, the findings will have consequences but consequences is exactly the point of this article.

Precisely being asked of the tribunal are the following: What is this “9-dash line” the Chinese keep citing as the basis for their maritime claims? Because it’s a thing not found in international law and the Chinese themselves have not bothered to define it as well.

The other questions raised can be grouped as a set of inquiries regarding the character of certain land formations scattered over the disputed areas. Specifically, these are Mischief Reef, McKennan Reef, Gavin Reef, Subi Reef, Scarborough Shoal, Johnson South Reef, Cuarteron Reef, and Fiery Cross Reef.

The first four are being claimed by the Chinese as rocks, while the Philippines is claiming they are merely “low tide elevations.” The significance of this (as per provisions Article 121 of the UNCLOS and later clarified and confirmed by the International Court of Justice in Nicaragua vs Columbia, 2012) is that land features not visible at high tide (hence, called “low tide elevations”) cannot be entitled to waters that an island or rock has under international law.

As for the last four, the Chinese claim the features are “islands,” while the Philippines say they are merely “rocks.” Islands are entitled to their own 12 nautical mile territorial sea, a contiguous zone of 24 nautical miles (from the low water mark), an exclusive economic zone, and a continental shelf. Rocks, on the other hand, merely have a territorial sea and contiguous zone.

With the foregoing, one can now understand the reason for the Chinese frenzy of construction activities in the disputed areas: apparently, they are rushing to pour concrete and other materials on the LTE’s to convert them into rocks and to make the rocks into islands.

Admittedly, this appears ridiculous, legally speaking, when one sees the UNCLOS clearly providing that an “island is a naturally formed area of land, surrounded by water, which is above water at high tide.” The crucial word here is “natural”. As for rocks, though the UNCLOS is silent regarding it, international law commentators are fairly unanimous in saying that the natural formation requirement should also apply to rocks.

Which leads us to the crux of the issue: a tribunal win for the Philippines is -- I dare say -- a foregone conclusion. There is no doubt that the country’s legal position is strong. The real question we should be asking is how do we handle that victory?

From there, one sees the practical rationale behind China’s provocative activities, obviously designed to cushion the impact of the loss that will inevitably be dealt them by the international tribunal.

As for the Philippines, what next? Shame China -- a permanent member of the UN Security Council -- into giving up what it now possesses? Such is a dangerously naive tactic against a country that just admitted it will undergo economic insecurities this 2016: lowering its growth forecasts to 6.5% amidst weakened trade, and cuts in demand for its steel and coal industries.

The theory bandied about in media is that a Philippine win will embolden other countries to stand up against China. This thinking is flawed on three counts: it assumes other countries will actually do so (see Thailand’s holding joint military exercises with China last year), second, even if they do, such stance will likely not follow the Philippine model of closed-minded confrontation (see Vietnam’s quite sophisticated maneuverings) and, finally, assuming the other countries do speak up against China, such does not automatically mean it will redound to the benefit of the Philippines.

In the end, this is what it all boils down to: the Chinese know what they want and the US does too, only too well. And the Americans and Chinese certainly know what they’re going to do as far as that is concerned. The question is: do we?

Because loudly throwing the dice and then hope the other countries come to our rescue cannot seriously be considered a foreign policy.

Jemy Gatdula is the international law lecturer at the UA&P School of Law and Governance and of Counsel for the Policarpio and Acorda Law Office.




Twitter @jemygatdula