Home / Opinion / Arbitral ruling on SCS dispute vindicated in Reed Bank row

Arbitral ruling on SCS dispute vindicated in Reed Bank row

June 25, 2019

YEN MAKABENTA

First word

THINK of the neglected arbitral ruling on the South China Sea as like a smoking gun in a crime situation — i.e. the evidence that confirms the crime and snares the culprit.

Despite Chinese President Xi Jinping’s obsession to erase it from the world’s memory, despite President Rodrigo Duterte’s confused decision to cast it aside, despite all doubt about its enforceability, the verdict of the Permanent Court of Arbitration on the Philippine complaint about China’s island-building in the South China Sea and its fanciful “nine-dash line” map is proving to be more durable and irrefutable than some have made it out to be.

New life and relevance

In the flurry of accusations, claims and speculations arising from the Recto (Reed) Bank ramming incident, the arbitral ruling is amazingly taking on new life and relevance.

The ruling will become a favorite subject of inquiry and searches online, as the discussion and analysis shifts toward the larger implications of the incident: where it happened, what is what in the area, who did what, and which country has rights and sovereignty over the area.

To China’s discomfiture, its incredible claim over all of the SCS will be highlighted again, along with its bogus historic rights.

To President Duterte’s uneasiness, his disdain for using the ruling in his foreign policy initiatives will be unmasked as injurious to the national interest, and incredibly shortsighted.

In this light, the nation will come to a better understanding of the decision of President Benigno Aquino 3rd to approve the filing of the case before the PCA at the Hague. There was sound and solid ground for the suit.

In retrospect, the people may also understand why we spent an estimated $30 million on American lawyers to win the case. As for the officials and politicians who flew to the Netherlands to show moral support for the cause, that can be excused as cheerleading.

We can also view without blinkers the report that the Americans may have orchestrated the case from first to last, as part of its strategy to contain China in the Asia-Pacific.

Like the parting of the Red Sea

When the UN arbitral tribunal issued its ruling on July 2, 2016, it seemed as if we were witnessing the parting of the Red Sea with respect to our vexation over China’s building of islands and structures in waters within our exclusive economic zone.

The date seemed almost providential. Our new president, Rodrigo Roa Duterte, had been sworn into office just two days earlier.

The time seemed propitious for a new administration to take Philippine foreign policy in a new direction.

The new direction would prove to be correct. But the new direction would point elsewhere.

Key points of verdict

I quote below from a Philippine Daily Inquirer report on July 12, 2016 on the arbitral ruling.

“In the 501-page verdict, the tribunal decided in favor of the Philippines, saying that China does not have historic rights to the South China Sea and that their ‘nine-dash line’ claim has no legal basis.

“In its summary statement on the ruling for the media, the tribunal cited some key points:

“1. Historic rights and the ‘nine-dash’ line:

“The tribunal concluded that, to the extent China had historic rights to resources in the waters of the South China Sea, such rights were extinguished to the extent they were incompatible with the exclusive economic zones provided for in the UN Convention on the Law of the Sea (UNCLOS).

“The tribunal also noted that, although Chinese navigators and fishermen, as well as those of other states, had historically made use of the islands in the South China Sea, there was no evidence that China had historically exercised exclusive control over the waters or their resources.

“The tribunal concluded that there was no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line.’

“2. Status of features:

“The tribunal noted that the reefs have been heavily modified by land reclamation and construction, recalled that the Convention classifies features on their natural condition, and relied on historical materials in evaluating the features.

“The tribunal found historical evidence to be more relevant and noted that the Spratly Islands were historically used by small groups of fishermen and that several Japanese fishing and guano mining enterprises were attempted.

“The tribunal concluded that such transient use does not constitute inhabitation by a stable community and that all of the historical economic activity had been extractive. Accordingly, the tribunal concluded that none of the Spratly Islands is capable of generating extended maritime zones.

“The tribunal also held that the Spratly Islands cannot generate maritime zones collectively as a unit. Having found that none of the features claimed by China was capable of generating an exclusive economic zone, the tribunal found that it could — without delimiting a boundary — declare that certain sea areas are within the exclusive economic zone of the Philippines, because those areas are not overlapped by any possible entitlement of China.

“3. Lawfulness of Chinese actions

“Having found that certain areas are within the exclusive economic zone of the Philippines, the tribunal said that China had violated the Philippines’ sovereign rights in its exclusive economic zone by (a) interfering with Philippine fishing and petroleum exploration, (b) constructing artificial islands, and (c) failing to prevent Chinese fishermen from fishing in the zone.

“The tribunal also held that fishermen from the Philippines (like those from China) had traditional fishing rights at Scarborough Shoal and that China had interfered with these rights in restricting access.

“The tribunal further held that Chinese law enforcement vessels had unlawfully created a serious risk of collision when they physically obstructed Philippine vessels.”

In this, the verdict may have proved to be prophetic with respect to the Reed Bank incident.

Relevance to Reed Bank probe

What is the relevance of all this to the Reed Bank controversy?

It becomes relevant when we ask where the ramming incident took place.

Did it take place in the Philippines’ exclusive economic zone?

Which country has sovereignty over the area?

It is important to ask because on such issues will depend whether our sovereign rights were transgressed in this incident and whether the rights of our fishermen were violated.

yenmakabenta@yahoo.com

Credit belongs to : www.manilatimes.net

index.php

10 years after ‘What matters to you most and why?’

By EARL MARTIN VALENCIA July 18, 2019 EARL MARTIN VALENCIA Looking back at the Stanford …