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THE WEST PHILIPPINE SEA II
3/9/2014 7:18:23 PM

A coastal state has full sovereignty over its 12 NM territorial sea. Beyond the territorial sea, the coastal state has only specific “sovereign rights” up to 200 NM from its baselines. These “sovereign rights” are to the exclusion of all other states. The term “sovereign rights” refers to specific rights that do not amount to full “sovereignty.”

A coastal state’s “sovereign rights” to its EEZ beyond the territorial sea refer principally to the exclusive right to exploit the living and non-living resources in the area, without other sovereign rights like the right to deny freedom of navigation and over-flight, which a coastal state can deny in its territorial sea.

China claims almost 90% of the South China Sea under its so-called 9-dashed line map, which overlaps 80% of the Philippines’ EEZ in the West Philippine Sea. If China’s claim is upheld, the Philippines will lose 80% of its EEZ in the West Philippine Sea, including the Reed Bank and even Malampaya. The Philippines will also lose all its ECS in the West Philippine Sea.

The maritime dispute between the Philippines and China boils down to whether there are overlapping EEZs between the Philippines and China in the West Philippine Sea. Are the waters enclosed by China’s 9-dashed lines part of the EEZ of China such that China’s EEZ overlaps with the EEZ of the Philippines? China also claims that the islands in the Spratlys like Itu Aba generate their own EEZs which overlap with the Philippines’ EEZ in Palawan.

China argues, through its scholars and officials, that the arbitral tribunal has no jurisdiction over the Philippines’ claim for two reasons: First, the dispute involves maritime boundary delimitation arising from overlapping EEZs of the Philippines and China, a dispute that China has opted out of compulsory arbitration. Second, China’s 9-dashed line claim is a historical right that predates UNCLOS and cannot be negated by UNCLOS. On these grounds, China has refused to participate in the arbitral proceedings.

The Philippines’ response is that the waters enclosed within China’s 9-dashed lines do not constitute an EEZ because the 9-dashed lines are not drawn from baselines along the coast of continental land or habitable islands. Under UNCLOS, EEZs can only be drawn from baselines along the coast of continental land or an island capable of human habitation or economic life of its own. China’s 9-dashed lines do not comply with the basic requirement of UNCLOS for drawing EEZs.

China has no EEZ that overlaps with the Philippines’ EEZ in the Scarborough area. China’s baselines are either along the coast of Hainan Island, which is 580 NM from Luzon, or along the coast of mainland China, which is 485 NM miles from the Zambales coastline in Luzon facing Scarborough Shoal. Even if you grant the Chinese-held Paracels an EEZ, the Paracels are about 480 NM from Luzon. To have overlapping EEZs, the distance between the opposite baselines must be less than 400 NM. In the Scarborough area, there is no baseline in Luzon where its distance from the nearest Chinese baseline is less than 400 NM.

Low-Tide-Elevations or LTEs are rocks above water at low tide but below water, or submerged, at high tide. LTEs are not land but part of the submerged continental shelf. Under UNCLOS, LTEs beyond the 12 NM territorial sea are not capable of appropriation by any state. As part of the submerged continental shelf, LTEs beyond the territorial sea but within the EEZ of a coastal state are subject to the sovereign rights of such coastal state.

Thus, LTEs in the Spratlys within the 200 NM EEZ of the Philippines, like Mischief Reef and Subi Reef, are subject to the sovereign rights of the Philippines. Under UNCLOS, only the Philippines can construct structures on LTEs within its EEZ. Geographic and hydrographic surveys, satellite imageries, and international nautical charts, including China’s own nautical charts, all show that several geologic features in the Spratlys occupied by China, including Mischief Reef and Subi Reef, are LTEs within the Philippines’ 200 NM EEZ.

Scarborough Shoal, 124 NM from Zambales in Luzon, lies within the Philippines’ 200 NM EEZ. Scarborough Shoal has 3 to 4 rocks that protrude not more than 2 meters above water at high tide. The rocks have no vegetation and obviously cannot sustain human habitation or economic life of their own. As a non-habitable “island,” Scarborough Shoal generates only a 12 NM territorial sea.

Contrary to China’s claim, Scarborough Shoal cannot, for obvious reasons, generate an EZZ. The Philippine position is that whether China or the Philippines, which are the only two claimant states, has sovereignty over Scarborough Shoal, the rocks can only generate a 12 NM territorial sea. Thus, Scarborough Shoal has no overlapping EEZ with the EEZ of Luzon.

In the Spratlys, with the exception of China, all the disputant states, namely the Philippines, Vietnam, and Malaysia, agree that none of the islands in the Spr



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