‘China sea claim hopeless’

Aurea Calica (The Philippine Star) - November 26, 2015 - 9:01am

MANILA, Philippines - China’s expansive claim in the South China Sea and West Philippine Sea is “hopeless and indefensible” and without legal or historical basis, the Philippines told an international arbitration court on Wednesday.

The Permanent Court of Arbitration based in The Hague continued the oral arguments on the merits of the case filed by Manila seeking clarification of its territorial entitlements in the West Philippine Sea and contesting Beijing’s massive claims, which cover the coasts of smaller neighbors.

Deputy presidential spokesperson Abigail Valte, quoting Andrew Loewenstein, one of the counsels representing the Philippines, said China’s claim was “hopeless and indefensible.”

A bulletin from The Hague said Loewenstein emphasized there was no basis for China to claim historical rights and that its artificial islands could not be used as reference points for what it claimed as its territories in disputed waters.

The Philippines also said China’s construction activities have eaten into parts of Philippine territory, deprived Filipinos of fishing rights and destroyed marine resources.

The bulletin also cited professor Philippe Sands’ making a presentation of China’s construction activities that he stressed did not give the Asian power additional entitlements.

Sands argued that Mischief (Panganiban) Reef, Second Thomas (Ayungin) Shoal, Subi (Zamora) Reef, Mckennan Reef and Gaven (Burgos) Reef were all low tide elevations under the United Nations Convention on the Law of the Sea (UNCLOS) and, as such, were not entitled to their own territorial sea, exclusive economic zone or continental shelf, the bulletin read.

“Sands discussed China’s interference with the Philippines’ exercise of sovereign rights under the UNCLOS with respect to living and non-living resources in the exclusive economic zone,” the bulletin, relayed by Valte to reporters, said.

“Sands gave as examples several incidents involving service contracts given by the Department of Energy wherein the private companies were prevented from exploration,” the bulletin read.

“In addition, the fishing ban mandated by China’s Ministry of Agriculture covering even areas in the Philippines’ EEZ was also discussed,” it added.

Another counsel for the Philippines, Lawrence Martin, argued that based on the Mandarin, Spanish and English translations of Article 121 of UNCLOS, features classified as rocks could not have maritime entitlements despite China’s building structures over them, the bulletin read.

Martin also stressed that under UNCLOS, a feature can only be considered an island if it is capable of sustaining human habitation and economic life.

In the afternoon session, the principal counsel for the Philippines, Paul Reichler, returned to the floor to prove to the tribunal that no civilian settlements had ever been established on features in the Spratly island group.

“There can only be one reason why this is the case, as the features themselves are not capable of sustaining human habitation,” the bulletin stated, quoting Reichler.

Valte said the Philippines’ arguments centered on how China’s maritime claim – as embodied in its so-called nine-dash line – has been depriving Filipinos of fishing and exploration rights.

China’s massive land reclamation, construction activities and apparent militarization in disputed waters are believed to be intended to extend or expand the Asian giant’s exclusive economic zone based on UNCLOS to cover even the Philippines’ internal waters. Under UNCLOS, countries are entitled to a 200-nautical mile EEZ from the nearest land features within their territories.

The bulletin cited Martin’s presenting various testimonies from Filipino fishermen to prove China’s interference in their traditional fishing activities at Bajo de Masinloc or Scarborough Shoal in the West Philippine Sea. Bajo de Masinloc is also locally called Panatag Shoal.

“A map from 1784 was presented to prove that Bajo de Masinloc has always been part of the Philippines,” it added.

Loewenstein closed the afternoon session by presenting satellite images of various installations constructed by China on Mischief (Panganiban) Reef, among others.

“A video simulation was also shown to the tribunal to demonstrate how a cutter suction dredger destroys the sea bed and transfers sand to a pre-selected area, a machine used by China in its construction activities,” the bulletin further read.

“Loewenstein argued further that by engaging in these activities, China has violated the sovereign rights of the Philippines with regard to living and non-living resources in its EEZ and continental shelf,” it added.

As stated by Sands, Valte said China’s violations were “flagrant and persistent” and that “they continue today” despite protests from the Philippines.

On Tuesday, the country’s legal team discussed the nature of China’s claim of historic rights, with Reichler pointing out how these purported historic rights, supposedly derived from UNCLOS, “in fact do not exist under the provisions of the convention.”

Loewenstein argued that even assuming, for the sake of argument, that a claim of historic rights could exist after the UNCLOS, China nonetheless failed to satisfy the requirements to establish such claim, namely: a continuous exercise of exclusive control for a long period of time over a specific area.

Loewenstein presented eight maps, the first of which dates back to the Ming Dynasty, to show that China’s territory did not include those encompassed by its so-called nine-dash line.

In Beijing, Chinese Foreign Ministry spokesman Hong Lei told reporters the hearing in The Hague was a provocation under the guise of law as he reasserted China’s “indisputable” sovereignty over South China Sea.

“The Philippines’ unilateral initiation and obstinate pushing forward of the South China Sea arbitration is a political provocation under the cloak of law,” Hong said.

“It is in essence not an effort to settle disputes but an attempt to negate China’s territorial sovereignty and maritime rights and interests in the South China Sea,” Hong added.

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