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3/9/2014 7:15:16 PM

What's at stake in our case vs China
POSTED ON 03/09/2014 8:36 AM | UPDATED 03/09/2014 9:49 AM
Our 1987 Constitution mandates: “The State shall protect the nation’s marine wealth in its xxx exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.” This is the mandate of the Constitution that we have all solemnly sworn to uphold.

To fulfill the State’s obligation to protect the nation’s marine wealth in its exclusive economic zone (EEZ), the Philippines has filed an arbitration case against China in accordance with the 1982 United Nations Convention on the Law of the Sea (UNCLOS). At stake in the arbitration before an UNCLOS Annex VII tribunal is whether the Philippines will keep or lose 80% of its exclusive economic zone and 100% of its extended continental shelf in the West Philippines Sea.

UNCLOS, ratified by 165 states comprising 85% of the entire membership of the United Nations, is the primary international law governing the use of the oceans and seas of our planet. Specifically, UNCLOS governs the use of the following maritime zones: (a) internal waters or archipelagic waters, the landward waters adjacent to the territorial sea; (b) territorial sea, an area of 12 NM from the baselines along the coast; (c) exclusive economic zone (EEZ), an area of 200 NM from the baselines; (d) extended continental shelf (ECS), an additional area of 150 NM from the outer limits of the EEZ; and (e) the AREA, which is the common heritage of mankind, the maritime zone beyond the ECS. The AREA belongs to all states, whether coastal or land-locked.

UNCLOS governs maritime disputes on overlapping maritime zones like overlapping territorial seas, EEZs and ECSs. UNCLOS does not govern territorial disputes, which are sovereignty or ownership issues over land territory like islands or rocks above water at high tide. Rocks that are below water, or submerged, at high tide are not considered land and thus disputes over such rocks are governed by UNCLOS.

UNCLOS provides for a compulsory dispute settlement mechanism over maritime disputes among its member states, including disputes involving the interpretation or application of the provisions of UNCLOS.

A state may opt out of certain specified disputes, one of which is maritime boundary delimitation arising from overlapping territorial seas, EEZs or ECSs. A state cannot opt out of any dispute except those expressly specified under UNCLOS. China, the Philippines and all the other disputant states in the South China Sea are parties to UNCLOS, and are thus bound by the UNCLOS compulsory dispute settlement mechanism.

Maritime disputes are governed primarily by UNCLOS, while territorial disputes are governed by the general rules and principles of international law. Maritime disputes are subject to compulsory arbitration because under UNCLOS a party state has given its advance consent to compulsory arbitration, unless a state has opted out of compulsory arbitration involving certain specified disputes. In contrast, territorial disputes can be subject to arbitration only with the consent of each disputant state to every arbitration, unless such consent has been given in advance in a treaty. There is no such treaty between the Philippines and China involving compulsory arbitration of territorial disputes.

Solely a maritime dispute

The Philippines’ arbitration case against China is solely a maritime dispute and does not involve any territorial dispute. The Philippines is asking the tribunal if China’s 9-dashed lines can negate the Philippines’ EEZ as guaranteed under UNCLOS. The Philippines is also asking the tribunal if certain rocks above water at high tide, like Scarborough Shoal, generate a 200 NM EEZ or only a 12 NM territorial sea. The Philippines is further asking the tribunal if China can appropriate low-tide elevations (LTEs), like Mischief Reef and Subi Reef, within the Philippines’ EEZ. These disputes involve the interpretation or application of the provisions of UNCLOS.

The Philippines is not asking the tribunal to delimit by nautical measurements overlapping EEZs between China and the Philippines. The Philippines is also not asking the tribunal what country has sovereignty over an island, or rock above water at high tide, in the West Philippine Sea.

Under UNCLOS, every coastal state is entitled to a 200 NM EEZ, subject to boundary delimitation in case of overlapping EEZs with other coastal states. The EEZ is the area extending to 200 NM measured from the baselines of a coastal state. Under UNCLOS, EEZs must be drawn from baselines of the coast of a continental land or island capable of human habitation of its own. This basic requirement stems from the international law principle that the “land dominates the sea” – or to put it another way, areas in the seas and oceans can be claimed and measured only from land.

A coastal state has full sovereignty over its 12 NM territorial sea.



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