Resolving the WPS dispute

When America turned a blind eye to China’s illegal occupation of our Panganiban (Mischief) Reef in 1995, I had just written an assessment of the claims of each country contesting the territorial sovereignty over the Spratly Islands in the South China Sea. Or the West Philippine Sea (WPS) as we call it now. My academic paper hinged on a public international law principle governing conflicting claims to land territories: which state has the superior claim and not which one has a title (Hersch Lauterpacht). It was part of my requirements for my Master of Laws degree at the London School of Economics and Political Science.

It happened 27 years ago. Regrettably, I have observed that much of the scholastic discourse from the claimant states of the Philippines, China, Taiwan, Vietnam, Malaysia and Brunei has stagnated on the same issues. There has been a dearth of literature advocating dispute resolution to this geopolitical conflict.

Therefore, I was glad to have presented a 10-point proposed solution to the WPS dispute in the recently concluded Symposium on Global Maritime Cooperation and Ocean Governance in Sanya, China. I am the first to admit that the proposal is far from perfect. Nevertheless, I hope it will somehow lead to serious engagement and action among the claimants that favor peaceful and long-lasting solutions to the problem.

The claimants must go beyond finalizing a code of conduct (COC) in the WPS among the ASEAN (Association of Southeast Asian Nations) member-states and China. In 2012, the countries signed a declaration on the conduct of parties, which called for self-restraint in inhabiting the uninhabited geographical features in the WPS. We lost control of the Panatag or Scarborough Shoal that same year. Thereafter, China has repeatedly blocked or attacked government and private shipping vessels with water cannons and military-grade lasers. The superpower has also constructed islands and installations on seven features, two of which fall within the Philippine exclusive economic zone (EEZ). For instance, the 2016 Arbitration Tribunal said China’s artificially built island at Mischief Chief had violated our country’s sovereign rights.  

At this point, the parties to the dispute should already be holding bilateral and multilateral discussions toward a permanent territorial and jurisdictional settlement. They should start with a working draft for an agreement that diplomatically resolves all disputes and differences.

In my speech, I cited two landmark cases under the Permanent Court of Arbitration (PCA) that provide a general framework by which all claimant countries and other stakeholders can arrive at a peaceful solution. First is the Eritrea vs. Yemen case. It was a United Nations Security Council-mandated compulsory arbitration where International Court of Justice (ICJ) judges sat as arbitrators. The Tribunal was not convinced by the historic titles submitted by both claimants to a group of islands in the Red Sea. Instead, it partitioned the islands between Yemen and Eritrea based on evidence of exercise of authority, as well as proximity to the mainland. The Arbitration Court also delimited the maritime boundary between the two nations.

Second is the Philippines vs. China case. While the Arbitral Tribunal failed to resolve the conflicting claims to the disputed islands, it ruled that China’s claim to expansive maritime territory is bereft of legal basis under the United Nations Convention on the Law of the Sea (UNCLOS). The superpower refused to participate in the arbitration proceedings and rejected the court decision.  

Since the WPS dispute involves land territories, all resolutions must apply the existing principles of public international law. Here are the salient points of my speech:

• As evidenced by the Eritrea vs. Yemen case, there is no ‘all-or-nothing’ rule. No party is outrightly entitled to all the islands or geographical features it claims. China cannot declare ownership of the entire features and waters of the WPS, or the Philippines cannot claim sovereignty over eight islands under its previous and present control. The Tribunal ruled that a claimant must prove a superior claim to every individual disputed island.

• In the Philippines vs. China case, the Court said none of the disputed geographic features can generate an EEZ. Meanwhile, only six features are categorized as islands (or permanently high tide elevations) that can generate 12 nautical miles of territorial sea. As an archipelago, our country is entitled to 200 nautical miles of EEZ reckoned from Palawan, according to UNCLOS. But due to overlaps with Malaysia and Vietnam, the Philippines has to resolve it through a negotiation based on equitable principles. What do the figures signify? Only 72 square miles (plus another 200 nautical miles of Philippine EEZ) out of the approximately 1.35 million square miles covering the WPS are subject to sovereignty and jurisdiction. In effect, it significantly narrows the scope of conflict among the claimants. It also gives plenty of room for the parties for economic cooperation and partnership.

• All features outside the Philippine EEZ and the 72 square miles of territorial seas generated by the six islands can form part of the high seas. The UNCLOS defines high seas as outside the territorial sea, internal or archipelagic waters and EEZ of a state. The maritime zone can be declared a common heritage site for all Asian states where fishers of all nationalities can freely exercise fishing rights. They can also explore the natural resources in conformity with the environmental protection provisions under UNCLOS. The Philippines, China, Brunei, Vietnam, Malaysia and Taiwan can act as joint stewards of the heritage area, which the Filipino lawyer and environmentalist Tony Oposa suggests should be renamed the “Sea of Asia.”

• Again, the Philippines cannot be deprived of an EEZ because it is an archipelagic state. The two artificial islands built by China within our EEZ may be subject to a bilateral agreement. After all, our country has allowed a foreign power to have nine military bases within our territory. I do not see any compelling reason why the Philippines and China cannot agree on this matter.

• According to the principle of effective occupation, the five islands controlled by the Philippines and another island occupied by Taiwan should be awarded to both countries. As long as the islands were not acquired through conquest, the occupation of the said features is almost equivalent to a title.