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West Philippine Seas

Understanding our Unclos arbitral submission


After almost a year since our stalemate with China on Panatag Shoal, it’s about time we brought the controversy to the binding and compulsory dispute settlement procedure of the UN Convention on the Law of the Sea (Unclos). But contrary to many media reports, the action is not before the International Tribunal on the Law of the Sea (Itlos), or before the United Nations. What was initiated is ad hoc arbitration pursuant to the Unclos.

Under the dispute settlement procedure of the Unclos, state parties may specify where they will submit all disputes over the “interpretation and application” of the Convention, either to the International Court of Justice (ICJ) or the Itlos. If a state party does not specify which body it will bring these disputes to, the default choice will be through binding arbitration under Annex VII of the Convention. Since both China and the Philippines did not choose either the ICJ or the Itlos, they are both deemed to have agreed to resolve these disputes to binding arbitration.

What happened last Tuesday was that we began the procedure of binding arbitration by serving China with a notification that we are initiating the same and providing China with a statement of our claims. We have also chosen our arbitrator in what will be a 5-member arbitral tribunal. China should now choose its own arbitrator. Thereafter, both parties should select the rest of the arbitrators from a list maintained by the UN Secretary General. If they cannot agree on the three further arbitrators, it is the president of the Itlos who will make the appointment to complete the tribunal.

After the tribunal has been constituted, China will reply to our statement of claims. It is expected that it will challenge the jurisdiction of the tribunal by invoking its reservation on the dispute settlement procedure. This can either be that the controversy relates to the exercise of sovereign rights and/or involves an issue of maritime delimitation. Both these grounds are provided in the reservations made by China in 2006.

This raises the question as to why the Philippines did not hale China to binding arbitration under the Unclos before 2006. The first incident over Panatag occurred in 1997 during the term of President Fidel Ramos, when we arrested Chinese poachers for illegal fishing in the area and charged them before a metropolitan trial court in Zambales. At that time, China had not yet made reservations on the dispute settlement procedure of the Unclos. Perhaps it was thought that Panatag may be resolved through bilateral negotiations? Whatever the reason, we now have to contend with China’s defense that the dispute is subject to its reservations.

This notwithstanding, credit goes to the Solicitor General because our submission of claims is crafted in a manner that will exclude all of China’s reservations. For instance, the submission asked the tribunal to rule on the validity of the controversial “nine-dash line,” since it does not constitute either China’s internal waters, territorial sea, or exclusive economic zone. This asks the tribunal to rule, as an issue of interpretation of the Unclos, whether the nine-dash lines comply with the Convention. Likewise, China has built permanent structures on reefs such as Mischief and Subi, which are permanently under water. The submission prays that the tribunal declare that since these are neither “rocks” nor “islands,” these should be declared as forming part of our country’s continental shelf, or the natural prolongation of our land mass.

On Panatag, our submission asks the tribunal to declare that the six very small rocks permanently above water can generate only 12 nautical miles of territorial sea. This declaration, if made, will clarify that the waters surrounding the small rocks still form part of our 200-nautical-mile exclusive economic zone.

While our submission bodes well for a peaceful resolution of the dispute, it will still not completely resolve the West Philippine Sea disputes. The

Unclos, after all, being the applicable law on the seas, cannot be utilized to resolve conflicting claims to islands. This aspect of the dispute will still be resolved on the basis of which claimant-state has the superior evidence of effective occupation. Nonetheless, a legal clarification on China’s claims to alleged islands and rocks that are under water, as well as the issue of which state can exercise sovereign rights on the waters surrounding Panatag, will simplify resolution of the entire dispute.

If we are successful, what will remain for resolution is only the issue of conflicting claims to islands. While China will have to give its separate consent to litigate the status of these islands, at least the issue of freedom of navigation and the exercise of sovereign rights over a large part of the disputed waters will have a final and binding legal determination.

Lest I be accused of being overly optimistic, the truth is China may very well argue that its legal entitlement to the disputed waters is based on its “uncontroverted” sovereignty to land territories. Even if the arbitral tribunal cannot exercise jurisdiction over these claims to land territories, it may be enough to remove jurisdiction from it because the matter, as phrased by China, may no longer be an issue of  “interpretation” and “application” of the Unclos. If this happens, we will be back to where we were: a standoff.

‘Critical date’ and Chinese hegemony

China appears to be applying the law literally. The rule is where there is a dispute to territory, the claimant that can show a superior claim to the same, be it land or water, will be adjudged as having title thereto.

In land territory, the rule is that discovery alone gives rise to an inchoate title that must be perfected through effective occupation. The latter entails submission of evidence that the disputed testimony was subject to the exercise of both sovereignty and jurisdiction. Some evidence recognized by tribunals as proof of effective occupation would include the simple act of hoisting the flag in small and desolate island territories, and such acts as the grant of concessions, appending the disputed territory to a local government unit, and proof that institutions such as the courts or civil register were functioning in the disputed area.

This is why China has recently been attempting to bolster its claim to both the Kalayaan Group of islands and Panatag. Very recently, it created a new municipality, Sansha, that would exercise jurisdiction over the disputed islands in the West Philippine Sea. This is also why it has recently built a structure on yet another disputed island within our Kalayaan group of islands,  the Subi Reef. The order to send a 30 boat armada of Chinese fishermen is also to bolster their claim that the waters have been the subject of acquired fishing rights by its nationals.

But will China’s recent acts actually result in its desired result of bolstering its territorial claims?

Not necessarily

Justice Holmes remarked that the life of the law is not logic; it has been experience. As early as the leading case of  Palmas, an arbitration where the Americans lost Palmas Island to us, the lone arbitrator came out with a judicial technique, the “critical date” which has been adopted by other tribunals. Under this technique, international tribunals resolving territorial disputes will ignore all acts of claimants to territories after  the “critical date”. This date, in turn, is the time when the controversy first arose between the parties. It is the moment in time  when the parties have advanced conflicting claims of title over the disputed territory. It is  when  the parties officially joined the issues albeit out-of-court.

In the Palmas case, the lone arbitrator disregarded evidence offered by the parties after the critical date because human experience tell us that all such evidence would be self-serving. After a controversy has arisen, it is only reasonable for both parties to strengthen—rather than weaken—their respective claims. This is why after all the claimants to Kalayaan publicly advanced their claims to the islands, all of them took steps to bolster their respective claims of effective occupation over the islands.

When is the critical date to the Spratlys?

It would appear to vary depending on which state is making the claim. France claimed the islands in 1933 . This was met with protests from China, Japan, and even Great Britain. All those that protested the claim of France hence articulated their own basis for title to the islands. It would seem that for China and Vietnam, the latter as the successor state of France, the critical date would be 1933. But for the Philippines, the critical date would be in the 1950s after Thomas Cloma claimed discovery over the islands that he described as “res nullius”—belonging to no one. The critical date for both Malaysia and Brunei, since their claims are anchored only on the regime of the continental shelf and the exclusive economic zone under the UNCLOS, would be in 1984, the year when the convention took effect.

Of course it is still important for the Philippines to repeatedly protest all these subsequent acts of effective occupation. Failure to protest may lead to estoppel. The international community recognizes international law as such because it forms part of a normative system.  Here, its normative content is the preservation of international peace and security.  The concept of “critical date” exists precisely to minimize the threat or the actual use of force. Were it not for this technique, claimant countries to disputed territory may resort to shooting whenever a claimant takes steps to bolster its claim after the “critical date.” Because of this technique, claimants are assured that acts that transpired after the controversy may mean nothing in the resolution of the controversy and hence need not result in a gunfight.

I am concerned that many of our countrymen, including those in the media, appear to be agitated with news of what China has been doing lately. Fortunately, we need not lose our cool since all these may be for naught.

Like President Aquino, let’s keep our cool.