Philippines vs China case primer for Non-Dummies
Here is a Frequently Asked Questions-format article for those interested on the Philippines vs China case decision ruled by the International Court of Arbitration Tribunal.
- WHAT IS SOVEREIGNTY?
Sovereignty means full and absolute control and authority within a territory.
A national territory is limited to its territorial waters which are 12 nautical miles from its baseline. Even airspace, bed, and subsoil of the territorial waters are included in a national territory. A country has sovereignty over those mentioned. (If the country has overseas territory, it obviously has sovereignty in there as well.)
And in international relations, you can only have sovereignty if it was recognized by other countries. Mere declaration of sovereignty does not mean the country has sovereignty.
- DO WE HAVE SOVEREIGNTY OVER OUR EXCLUSIVE ECONOMIC ZONES (EEZ)?
The EEZ is the whole 200 nautical miles from the baseline. According to international law, sovereignty applies only to the territorial waters – which is the first 12 NM of the EEZ. Beyond that, a country has sovereign rights and limited jurisdiction.
- WHAT IS ‘SOVEREIGN RIGHTS’?
Sovereign rights are partial and economic in nature. This is the right of a country to explore, exploit, conserve, and manage the living and non-living natural resources within its EEZ.
We also have sovereign rights for economic exploitation and exploration of EEZ for activities such as energy production from water, currents, and wind.
- WHAT IS ‘LIMITED JURISDICTION’?
Jurisdiction is the power of the country to enforce its laws within its area of responsibility.
The jurisdiction of a country on its EEZ is limited on the following aspects:
- establishment and use of artificial islands, installations, and structures
- marine scientific research
- protection and preservation of the marine environment
- WHAT ARE THE SCOPES OF OUR EXCLUSIVE RIGHTS IN OUR EEZ? CAN WE SHARE?
Only non-living resources such as oil.
It is our prerogative if we want to share or not. Sharing does not go against our sovereign rights; and not sharing it does not go against the principles of sovereign rights either. If the deal offered is very amicable, why not? The thing is that we wouldn’t know if the deal is amicable and beneficial if we will not communicate.
- WHAT ABOUT LIVING RESOURCES SUCH AS FISH?
For this one… it’s complicated.
- a) According to UNCLOS, a coastal country shall determine its capacity to harvest the living resources of the EEZ. If the country does not have the capacity to harvest the entire allowable catch, it shall give other countries access to the surplus, but through arrangements pursuant to UNCLOS.
- b) For highly-migratory fish species, the countries concerned should coordinate for its conservation and optimum utilization, inside and outside the EEZ.
- c) Landlocked countries also have rights to exploit the surplus of living resources in our EEZ.
- d) Traditional fishing grounds. Although nothing in UNCLOS compels us to respect the traditional fishing activities of other States in our waters, the international practice is to respect traditional fishing activities. (Sharing is trending.)
- India and Sri Lanka recognizes traditional fishing rights of their fishermen on Palk Bay. (1974)
- Japan, amid establishing its 200 NM fishery zone, still recognizes the traditional fishing rights of fishermen from China and South Korea. (1978)
- In the Eritrea vs Yemen Arbitration Case, the Tribunal said that “sovereignty is not inimical to, but rather entails, the perpetuation of the traditional fishing regime in the region.” And because of that, even though the islands’ sovereignty was given to Yemen, the Tribunal said that Yemen should ensure the “traditional fishing regime of free access and enjoyment for the fishermen of both Eritrea and Yemen” and they “shall be preserved for the benefit of the lives and the livelihoods of this poor and industrious order of men.”
- The Tribunal declares Scarborough Shoal as traditional fishing grounds of both Filipino and Chinese fishermen. And even on the day that the Philippines was proven to own sovereignty of Scarborough Shoal, it cannot force away Chinese fishermen due to the traditional fishing grounds principle. Remember Eritrea vs Yemen? And, of course, the Chinese cannot meddle with Filipino fishermen.
That whole sea of many names is actually is a traditional fishing grounds for all fishermen of countries surrounding it.
Another thing, the ecological crisis in thr South China Sea (declining fish stocks) URGENTLY requires that we coordinate whether we like it or not. Fish exploitations on seas are economically-managed. But, the new thinking is ecosystem-based fisheries management, and that requires multilateral efforts because Mother Nature does not recognize EEZs and territories.
- CAN WE SHOO THE CHINESE AWAY FROM OUR EEZ?
No. Nothing says in the Arbitral Tribunal that we have to get Chinese out. What they said was that China cannot distract or interrupt the Filipino fishermen and the Manny V. Pangilinan-led oil exploration at Reed Bank.
Remember, the Philippines has no sovereignty over its EEZ. It means that in that zone, the Philippines has no power to exclude others in its most extreme form.
In the words of the late US Supreme Court Justice Antonin Scalia, “sovereignty is inherently the power to exclude people who have no right to be there.”
It is only is sovereignty that ‘the power to exclude’ is very much whole and presence-based, which means that if a person has no right to enter into your territory, you can get him out of your territory whatever the eff it does. In sovereign rights, ‘the power to exclude’ is only partial. And unlike under sovereignty, ‘the power to exclude’ under sovereign rights is not presence-based, but activity-based instead.
Generally, the only activities that UNCLOS allow in your EEZ are economic in nature (exploration and exploitation ng living and non-living resources); because you have exclusive rights over it, especially to non-living resources. Non-economic activities are not forbidden; and you have to consider traditional fishing rights as well.
Other countries can be there as long as they do not violate our rights. Look at the Chinese military vessel at Second Thomas Shoal. The Arbitral Court did not meddle with it amid deciding that the shoals are within the Philippines’ EEZ. They can be there, just do not interrupt with Filipino fisherman and the Pangilinan-led oil exploration.
- WHAT WILL HAPPEN WITH THE ARTIFICIAL ISLANDS MADE BY CHINA WHICH ARE WITHIN OUR EEZ?
Although the Tribunal said that it is a violation of UNCLOS, it has been mum on what to do.
The Tribunal did not say that China has to get out of it and surrender the islands to the Philippines. Also, nothing is mentioned in UNCLOS anyway about what to do to it when they are already built.
Furthermore, UNCLOS only said that countries have jurisdiction over establishments of artificial islands within their EEZ. It does not mean that you have ownership of islands and structures. You are just given the right to regulate. Now, if your rights were violated, it doesn’t mean that you will have ownership over those structures. Nothing is written in the UNCLOS about that. Don’t assume.
- HOW WILL WE GET THE CHINESE OUT OF THOSE ARTIFICIAL ISLANDS?
Negotiate with them or launch war against them. But one thing is for sure: if you were China, would you get out of those islands and surrender it to the Philippines? No.
If you are really concerned about those islands, the most constructive way to deal with them is to talk to China regarding how both of you can benefit from them. Negotiate. Negotiate. Negotiate.
- SO, THAT’S IT????
China shows legitimate interest on why they built those islands: security.
Although the establishment of those artificial islands within the EEZ of the Philippines is illegal because the Philippines did not permit it, China has a legitimate reason why they need to have a strong foothold in the South China Sea. Legality and legitimacy are not the same in international relations.
Almost all trade passing by South China Sea are to and from China. If you are going to study Chinese history, you’ll understand the painful lessons China had to learn by not securing the flow of trade to and from its shores. China has experienced its most humiliating defeats from the Europeans through that sea. So, we cannot simply shoo the Chinese away because their security would be at stake.
If that trade gets obstructed, China’s economy will be in peril. And you don’t want a big country like China to fail because it will have negative repercussions in the entire world, and it will be much worse than the Global Financial Crisis.
And now, because you are a hardliner: If the Philippines can ensure China that it can guarantee security in the flow of trade to and from China, then by all means, let us shoo them away. Even the United States secures the flow of maritime trade going to and coming from the US by deploying its navy and having naval outposts. China is simply doing what any country that has an economy with a global reach is doing.
That’s why I see the issue of China violating freedom of navigation unreasonable and illogical because almost all navigation going that way has something to do with China: everything passes through the Vietnamese side of the South China Sea, while the Philippine side caters to the to-and-fro Australian operations. Why would they stop freedom of navigation if maritime trade is the artery of their economy? That’s suicide.
If Philippines is in China’s shoes, Philippines wuld have done the same. So, recognize the legitimate interests of China and see how the Philippines and China can work together in order for the Chinese interests to be not inimical to the legitimate interests of our country. And we will not know their legitimate interests and how we can reconcile our interests with them if we are not going to talk to them.
- OMG. CHINA HAS BAD INTENTIONS.
We can never know their intention if we are not going to talk to them. If we don’t talk to them and assume that they have cruel intentions, all our actions will be based on an illusion.
Obviously, we can never fully know the intentions of another country even by talking to them. The solution to this problem is talking to them regularly.
You cannot even understand your girlfriend or your boyfriend! How much more a country with complex history, different language, and myriad languages? Just hang on. Not talking to them and not having a good relationship with them don’t put us in a better position.
- SO, IS SPRATLYS OURS?
The Arbitral Tribunal didn’t say anything about that. Huwag ambisyosa.
- WHAT HAPPENS NEXT WITH SCARBOROUGH SHOAL?
Both Filipino and Chinese fishermen are allowed to operate there. The Arbitral Court didn’t award the Scarborough Shoal to the Philippines or to China because the Tribunal has no authority to determine issues of territorial sovereignty.
But, even on the day that the Philippines or China was proven to have sovereignty over Scarborough Shoal, they cannot simply throw the fishermen of the other country because the shoal is all of our fishermen’s traditional fishing grounds.
That’s why the decision mentions that China was wrong in interrupting the Filipino fishermen, but it doesn’t mean that the Filipino fishermen are the only ones allowed in there. Both Chinese and Filipino fishermen have the right to be there. In short: don’t be selfish.
- SO, SOUTH CHINA SEA IS WEST PHILIPPINE SEA?
According to the Aquino Administration propaganda, it is. The Arbitral Tribunal doesn’t refer to the sea as West Philippine Sea but as South China Sea.
- SO, IS SOUTH CHINA SEA OURS?
Nothing like that is mentioned in the Arbitration Court. So, don’t. Okay?
- ARE YOU PRO-CHINA?
I’m not for China nor for the Philippines. I’m for international stability and realistic thinking. And I serve my country by being independent of it.
- HHMPF. KNOW-IT-ALL. WHAT’S YOUR BACKGROUND?
I graduated in Combined Major in World Politics and Global Justice, minor in International Development, magna cum laude, at Leiden University College-The Hague. Some of my key courses are International Law, Jurisdiction, Transnational History, Sovereignty and Statehood, Peace and Conflict Psychology, Conflict Resolution and Settlement, Foreign Policy and Diplomacy at Multilateral Institutions (both I studied under a former NATO Secretary General).
I studied US Foreign Policy at Chinese International Relations at UCLA; and “Global Poverty, Local Solutions” at the International Institute of Social Studies.
Currently, I’m pursuing MA International Relations, working on my thesis on the South China Sea conflict, at The Hague.
I have at least 10 years of international experience and worked with people at the international level, such as international NGOs, private international defense and consultancy firm (on chemical, biological, radiological, nuclear threats), and high-level diplomats.
So, I just don’t have the academic training on international relations. I have learned things from experience. *flips hair*
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