Monday, April 20, 2015

Understanding the turmoil at the West Philippine Sea

Note:  This photo-essay appeared in a slightly different version in the 17-23 April 2015 issue of FilAm Star, 'the newspaper for Filipinos in mainstream America' published in San Francisco, CA.  This author/blogger is the Manila-based Special News/Photo Correspondent of the weekly paper.

1785 map titled “Isole Filippine” from the 
Lopez Museum & Library collection.
We children of coastal towns on the western side of Luzon have fond remembrance of China Sea where we went swimming on hot summer days especially during the Easter weekends, and where we watch fishermen coming in from a night out at sea with either happy dispositions (big catch) or forlorn faces (empty nets).

We never called the blue waters South China Sea (SCS), supposedly its correct name.  But these past three years, we’ve been releasing marine turtle hatchlings to the West Philippine Sea (WPS), the now politically correct term.

The territorial and marine disputes at the SCS and WPS have been top news items in recent years. Greatly disturbing of late are reports about China’s reclamation activities there accompanied by photographic evidences of dredging and construction on rocks, reefs and islands in the Spratlys.

For better understanding of the issues, we’ve gone back to the basics. We started with “The West Philippine Sea -The Territorial and Maritime Jurisdiction Disputes from a Filipino Perspective - A Primer” (2013) of the Asian Center and the Institute of Maritime Affairs and Law of the Sea of the University of the Philippines. This is available in the internet for downloading. 

The Primer defines the parameters of the SCS and the WPS.  The SCS is “the much broader expanse of water ...a semi-enclosed sea, bounded by China/Taiwan in the north, by the Philippines in the east, and by Vietnam, Malaysia, Singapore, Indonesia, and Brunei in the west and south.” Of particular interest are “various geographic features [scattered over the South China Sea], the most prominent of which are known internationally as the Spratlys, the Paracels, Macclesfield Bank and Pratas Island” because “[t]here are overlapping claims by various countries to these features and to the waters and resources surrounding them, including parts of the West Philippine Sea.”
Detail of a 1734 Murillo map showing Panacot (Scarborough Shoal).
From the Biblioteca Nacional de Espana online digital library.

On the other hand, “the West Philippine Sea refers to the part of the South China Sea that is closest, and of vital interest, to the Philippines.”  The naming took place almost three years ago, on 05 September 2012, when President Benigno Simeon C.Aquino III issued Administrative Order No. 29. This was given to “[t]he maritime areas on the western side of the Philippine archipelago which include the Luzon Sea as well as the waters around, within and adjacent to the Kalayaan Island Group and Bajo De Masinloc, also known as Scarborough Shoal.”  The AO says that this naming “is without prejudice to the determination of the maritime domain over territories which the Republic of the Philippines has sovereignty and jurisdiction.”

The Spratlys and the Kalayaan Island Group (KIG) may have caused some confusion to many.  The Primer gives us this clear delineation:  “The {KIG} is a group of over fifty features and their surrounding waters that belong to the Philippines, located in what is internationally known as the Spratly Islands. The KIG is not the same as the Spratlys, however, as there are features in the Spratlys that are not part of the KIG.”

Detail of another 1734 Murillo map showing Panacot (Scarborough Shoal).
From the Lopez Museum & Library collection.

The Philippine flag flies over the KIG. “The islands, reefs and rocks of the KIG are nearest the Philippine main archipelago, and are believed to be both economically valuable and strategically important for purposes of national security. The KIG was formally incorporated as a municipality of Palawan province in 1978 ...  Nine (9) of its islands and reefs presently host Philippine civilians and troops.”   These islands have Philippine names:  Lawak (internationally, Nanshan Island), Kota (Loaita), Likas (West York), Pag-asa (Thitu), Parola (Lankiam Cay), Panata (Northeast Cay), Patag (Flat), Rizal Reef (Commodore Reef) and Ayungin Shoal (Second Thomas Shoal).

The KIG is a 5th class municipality of Palawan with an area of 85 hectares and Pag-asa Island is the sole barangay. It is populated, and it has a sangguniang bayan.

There are other country claimants in the Spratlys as well as in the KIG.  As of 2013, the Primer lists Vietnam as having occupied 22 maritime features; China, 7; Malaysia, 5; and Taiwan, 1.

Being from Zambales, Bajo de Masinloc (Scarborough Shoal) is important to us because this is the rightful source of livelihood of our fishing villages. They have been deprived of their rights when China occupied this group of rocks.  

“Bajo de Masinlocs is an integral part of Philippine territory,” the Primer asserts, “being part of the Municipality of Masinloc, Province of Zambales. It is located 124 nautical miles west of Zambales proper and is within the 200 nautical-mile Exclusive Economic Zone (EEZ) and the Philippine Continental Shelf.”

We have also gone to the exhibit “Common Ground” at the Lopez Museum and Library to appreciate their collection of 21 antiquarian maps drawn by Western cartographers. These consistently included the Scarborough Shoal.  The exhibit reflects the lecture of SC Senior Associate Justice Antonio T. Carpio on the “Historical Facts, Historical Lies, and Historical Rights in the West Philippine Sea” where he strongly argued against China’s claims on the West Philippine Sea, which include Scarborough Shoal and Spratly Islands. 

The cartographic exhibit highlights that “for almost a millennium, the southernmost territory of China has always been Hainan Island. Scarborough Shoal never appeared in any Chinese dynasty maps. On the other hand, numerous ancient maps made by foreigners, and later by Philippine authorities, from 1636 to 1940, consistently showed that Scarborough Shoal, a.k.a. Panacot and Bajo de Masinloc, has always been part of Philippine history.” 

The presentation of Justice Carpio on “The Rule of Law in the West Philippine Sea” is a very helpful in understanding the case filed by the Philippines against China with the Arbitration Tribunal.  The four West Philippine Sea Arbitration Updates (May 2013, April, June and September 2014) of the Department of Foreign Affairs, and the paper “Arbitration 101: Philippines V. China” (January 2015) of UP College of Law Professor and IMLOS Director Jay L. Batongbacal track the progress of the case. All of these references are available online.

The first DFA Update described the filing of the case: “On 22 January 2013, the Philippines formally conveyed to China the Philippine Notification and Statement of Claim that challenges before the Arbitral Tribunal the validity of China’s nine-dash line claim to almost the entire SCS including the WPS and to desist from unlawful activities that violate the sovereign rights and jurisdiction of the Philippines under the 1982 UN Convention on the Law of the Sea (UNCLOS).

“This notification initiated the arbitral proceeding under Article 287 and Annex VII of UNCLOS. The Philippines has exhausted almost all political and diplomatic avenues for a peaceful negotiated settlement of its maritime dispute with China.

“China’s nine-dash line claim is contrary to UNCLOS and unlawful. The Philippines is requesting the Tribunal to, among others, (a) declare that China’s rights to maritime areas in the South China Sea, like the rights of the Philippines, are established by UNCLOS, and consist of its rights to a Territorial Sea and Contiguous Zone under Part II of UNCLOS, to an EEZ under part V, and to a Continental Shelf under Part VI; (b) declare that China’s maritime claims in the SCS based on its so-called nine-dash line are contrary to UNCLOS and invalid ; (c) require China to bring its domestic legislation into conformity with its obligations under UNCLOS; and (d) require China to desist from activities that violate the rights of the Philippines in its maritime domain in the WPS.”

The subsequent DFA Updates reported on the progress of the case. In Justice Carpio’s brief summary:  “China has refused to participate; four of 5 arbitrators appointed by President of ITLOS [the first one was nominated by the Philippines]; the Rules of Procedures issued; Philippines filed Memorial by 30 March 2014 deadline – 4000 pages; China given deadline of 15 December 2014 to submit counter-memorial.”  

In his Arbitration 101, Batongbacal wrote of the status of the proceedings as of January 2015.  He mentioned that “China publicly released a position paper [on 07 December 2014] outlining its objections to the jurisdiction of the arbitral tribunal while reiterating that it was not participating in the proceedings.”  He also said that the Tribunal issued its third Procedural Order on 17 December 2015, and gave the Philippines until 15 March 2015 to “submit a supplemental submission on the Tribunal’s jurisdiction and the merits of the case, in particular to address the points raised by China’s position paper. After the submission, China will have a similar period of 90 days within which to file a response.”

Could there be decision within this year? 

No comments:

Post a Comment