Sovereign rights
SKETCHES - Ana Marie Pamintuan (The Philippine Star) - July 13, 2016 - 12:00am

Yesterday’s ruling of the UN-backed Permanent Court of Arbitration in favor of the Philippines was expected.

What no one can predict is how Beijing will take the ruling, which cannot be appealed.

Philippine-claimed reefs and isles in the Spratlys are not the only issues at stake in this ruling, but Beijing’s entire claim over the South China Sea, which is also being challenged by Vietnam, Malaysia, Taiwan and Brunei.

Accepting the ruling is complicated for Beijing because the arbitral court has not just specifically awarded several disputed areas to the Philippines, but also declared that there is “no legal basis” for China’s “nine-dash line” claim in the South China Sea.

The court also specifically censured Beijing for its reclamation and construction of artificial islands in the Spratlys, saying the activities not only violated the sovereign rights of other countries but also aggravated the maritime dispute during the arbitration period and destroyed the marine environment.

Junking the bizarre nine-dash line claim strengthens any formal challenge that may be brought against China by other claimants in disputed waters, including Indonesia.

An award of sovereign rights to the Philippines also raises questions on the impact of the ruling on the Mutual Defense Treaty (MDT) and Enhanced Defense Cooperation Agreement between the Philippines and the United States.

* * *

The arbitral tribunal in The Hague awarded the Philippines “sovereign rights” over Mischief (Panganiban) Reef where a Chinese military garrison now sits, Second Thomas or Ayungin Shoal where we have parked a rusty Navy ship to guard our territory, and Reed or Recto Bank where Philippine oil exploration is on hold.

All three, the tribunal ruled, fall within our 200-mile exclusive economic zone or EEZ and continental shelf as defined under the United Nations Convention on the Law of the Sea (UNCLOS).

For reasons that aren’t too clear if we are to follow the 200-mile EEZ provision in the UNCLOS, the tribunal did not give the Philippines exclusive rights to Scarborough or Panatag Shoal, which lies just over 120 nautical miles off Zambales.

Instead the tribunal cited historical evidence that the shoal has been a traditional fishing ground for several countries, and no one has exclusive right to the rich fishing area. And this being the case, China had no right to prevent Filipino fishermen from entering the shoal, according to the ruling.

The Panatag “occupation” by the Chinese was what drove Manila to seek international arbitration in 2013.

We turned to the UN court because bilateral talks with Beijing were starting to look like mere diversionary tactics and leading nowhere. Also, no one was stopping China from its aggressive moves in contested waters. Not the Association of Southeast Nations, which to this day has been disgracefully disunited and useless when it comes to confronting Chinese maritime claims. And not Uncle Sam, which has said that it does not take sides in a territorial dispute, and which cannot commit to come to the defense of a treaty ally in case of armed attack in areas where sovereignty has not been established.

Now that a UN court has awarded the Philippines “sovereign rights” over disputed areas, is Washington bound by the MDT to come to our defense in case of armed aggression in Panganiban Reef, Ayungin Shoal and Recto Bank?

And will the ruling that China has no historic title to the South China Sea embolden the US and its allies to ramp up activities to ensure freedom of navigation in the area? Will they help ensure that no one exercises exclusive jurisdiction over Panatag Shoal?

The UN ruling takes away any basis for China to set up airstrips or submarine bases and declare an air defense identification zone or challenge the navy and air force of the US and its allies in Southeast Asian international waters.

For Beijing and President Xi Jinping, there is more at stake here than just face. The ramifications of the arbitration ruling go beyond the dispute between the Philippines and China.

* * *

While Filipinos cheered, the Philippine government has correctly avoided gloating. The Duterte administration is said to be giving priority to improving strained ties with China and exploring areas of cooperation beyond the maritime dispute.

This is the proper tack, considering our long history of friendly ties with China. We have never been enemies, and many Filipinos have Chinese ancestors, including President Duterte and his predecessor Noynoy Aquino.

But President Duterte should also see to it that mending bilateral ties involves a give-and-take. Part of improving relations must be respect for the arbitration ruling, at least where it concerns those areas where we now have UN-backed sovereign rights and traditional fishing privileges.

Simply put, it means China must get out of areas it does not own, and stop activities to create artificial territory.

Moving bilateral ties forward must be built on unassailable trust. This cannot be done while Philippine officials keep looking over their shoulders while talking with their Chinese counterparts, wondering if China is building another artificial island or poaching endangered sea turtles within the Philippines’ EEZ or driving away Filipino fishermen with water hoses.

With the ruling, China has no more basis for claiming waters outside its EEZ, particularly in the area we call the West Philippine Sea. The rules are on our side; what’s on theirs?

“Might makes right” does not define international rules.

 

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