(From the Manila Standard Today.com column of Atty. H. Harry L. Roque, Jr. posted on Aug. 08, 2013)
China has made three reservations to the compulsory and binding dispute settlement procedure of the UN Convention on the Law of the Sea. Of these, only two appear to be relevant to the Philippine arbitral submission against China involving the West Philippine Sea.
The first, a reservation on maritime delimitation, does not appear to be relevant because none of the prayers of the Philippines calls for delimitation. Instead, the Philippines asked the Tribunal to declare that China’s nine-dash lines do not have any legal basis under the UNCLOS. The Philippines also sought for a declaration that certain low-tide elevations—geographical features that are only visible during low tide, where China has built permanent structures—cannot be the subject of title and hence, should be declared as part of the Philippine continental shelf. The Philippines also asked that the waters outside of the 12-nautical-mile territorial sea of the Panatag shoal be declared as part of the Philippine Exclusive Economic Zone since these waters are within 200 nautical miles of the Philippines.
The latter two declarations though, will have to be closely scrutinized by the tribunal, not because they appear to be an obvious hindrance to the its jurisdiction, but because China has been conducting itself to ensure that these reservations become relevant.
First, there is the reservation on any military and law enforcement activities in connection with the exercise of sovereign rights. Under this reservation, China seeks to exclude all disputes arising from the acts of its navy or coast guard enforcing China’s sovereign right to exclusively explore and exploit the natural resources in its exclusive economic zone. This covers acts of Chinese state agents arresting foreign poachers in waters that it has perceived to be within its EEZ, or to exclude them from operating thereat. This appears to be why China has driven Philippine troops away from the Panatag shoal. This also appears to be why and its warships, for the first time, to escort an armada of at least 30 fishing vessels in the disputed waters of the Spratlys. Fortunately for the Philippines, the tribunal will inevitably ignore all these acts under the technique used in international law known as the “critical date”. Under this technique, the tribunal should ignore all acts of claimant countries to disputed territory after joinder of issues because these are self-serving. In the case of the Spratlys, the critical date is 1933 when China, Japan and the UK protested the French claim to the islands. For Panatag, this was in 1906 when the Philippines Supreme Court ruled on a case involving a maritime collision at Scarborough.
Furthermore, while they may exclude law enforcement activities intending to assert sovereign rights, the reality is such conduct will be evaluated in relation to the nature of the waters where it is being exercised. In other words, despite the literal reservation, the tribunal will and should still evaluate if these law-enforcement activities are in fact being exercised in China’s EEZ. This is an issue of interpretation or applicability of the Convention and within the jurisdiction of the tribunal.
The last reservation, those involving “historic bays” and waters appear to be the most contentious. This is because China will conceivably assert that the entirety of the West Philippine Sea forms part of its “historic bay”. A “bay”, under the UNCLOS, is a body of water surrounded by land whose mouth should not exceed 24 nautical miles. Furthermore, the UNCLOS requires that to be a bay, the mouth of the bay should satisfy the semi-circle test. This test involves drawing a half circle into the mouth of the bay. If the semi-circle falls within the mouth of the bay, then the waters qualify as a bay. The waters within the bay are internal waters, which is subject to the absolute sovereignty and jurisdiction of the coastal state. And because it forms part of internal waters, foreign vessels do not have the right to innocent passage therein. They must always seek the consent of the coastal state.
This is contentious not because the South China sea is in fact a bay, but because China may insist that it is one. Note that the area being claimed by China as falling within her sovereignty and jurisdiction is delineated within the nine-dash lines which has been referred to by Dean Raul Pangalangan as the “Chinese condom” because its configuration resembles a condom. Conceivably, although this is uncertain since China has not expounded on the nature of its nine-dash lines, China would insist that the top portion of the “condom” is the mouth of its historic bay, while the rest would be the waters comprising the bay. And although this constitutes almost 600 nautical miles of waters, China may argue that its entitlement to the bay, outside of it being treated historically as a bay, is because certain land features generate the maritime zones it is claiming.
Again, to claim that it is a historic bay is different from the waters actually being a historical bay. In this regard, the International Court of Justice has recognized one body of water, the Gulf of Fonseca, as being a historical bay. This gulf was disputed between El Salvador, Honduras and Nicaragua. There, the Court ruled that the waters were historically owned in common by the three states when they were mere provinces during Spanish colonial rule. In this context, the Court ruled that the Gulf of Fonseca was a historic bay and owned in common by the three states.
China has thus the difficult onus to prove that the West Philippine Sea constitutes either its historic bay or waters. In this regard, it is not only the Chinese view that will matter, She would have to show that outside of its sell-serving claim, that its neighbors and the rest of the world accepted her view that the waters of the South China sea is her historic bay or water.