Analysis: Philippine case vs China, a major salvo in long effort

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Vessels of the Philippine Navy and the United States 7th Fleet steam in formation in South China Sea during exercise Balikatan 2010. US Navy/Mark Alvarez, file

MANILA, Philippines – Since 2013, Philippine foreign policy has been especially firm on the importance of upholding the country’s rights under international law and in accordance with the Constitution when when it lodged a case against China with the Permanent Court of Arbitration in The Hague.

Despite the large distance between the Philippines and China in terms of economic and military might, the Philippine government decided to pursue a foreign policy, anchored on principle, that stood against “might makes right” thinking. The lengths to which Filipinos have upheld this commitment cannot be underestimated. No matter the outcome from today’s ruling, the decision to proceed with arbitration must go down as one of the country’s boldest moves since independence.

At the same time, although the ruling will be a landmark for international law and for foreign policy in Southeast Asia, the case is still situated within a broader diplomatic and geopolitical context. This is a context that the Philippine government must work with in achieving the overall objectives of its foreign policy, whose paramount considerations in the Constitution are national sovereignty, territorial integrity, national interest and self-determination. In perspective, the case is a single salvo in a long effort to bring the disputes to a peaceful conclusion and to preserve friendly and constructive relations among the countries in the region to the extent possible.

Given the tremendous interest in the case itself, Filipinos will understandably have questions over the significance of the just-released ruling and its impact on our foreign policy. The most urgent message is that the ruling will not end the tensions over the disputes, but that the ways in which the Philippines and other countries react will make a difference in how the disputes are resolved over the long term.

The most urgent message is that the ruling will not end the tensions over the disputes.

The disputes are difficult and the case by itself won’t resolve them

The disputes in the South China Sea are difficult to resolve, through any means, because the countries’ claims have some uncertainty. To start, countries have overlapping claims to territory or land “features.” These features can take many familiar forms: islands, reefs, rocks and so on. The Philippines, for example, has a claim to Mischief Reef, which is also claimed by China (and Taiwan) and Vietnam. Despite the Philippines’s protests, China has controlled Mischief Reef since the 1990s and, since last year, has built a military base on the reef.

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Countries also claim exclusive use of the water adjacent to the features that they own or say they own. Under the UN Convention on the Law of the Sea (UNCLOS), different types of land get different entitlements to the adjacent waters. The law defines the standards for these features and what each feature gets in terms of waters. Rocks, for example, cannot sustain human habitation on their own—they only get 12 nautical miles of “territorial waters.” Islands, on the other hand, can sustain human habitation and get both territorial waters and 200 nautical miles of “exclusive economic zone” or EEZ.

As a second example, no one in the region disputes that the Philippines has sovereignty over the large island of Palawan. Because it is obviously not a rock, the Philippines says it has 200 nautical miles of EEZ from the shores of Palawan. The twist happens when another country claims that they own land that is inside the Philippines’s EEZ, or within the 200-mile radius. If the land were an island, then the island would have its own exclusive economic zone, which would now overlap with the Philippines’s coming from Palawan. To resolve the overlap, the two countries could negotiate directly or get a third-party to find a fair solution.  In 2014, India and Bangladesh delimited their overlapping exclusive economic zone this way, by using an independent tribunal.

The biggest problem, however, is when the full detail of the claims is unknown and some claims are clearer than others. China’s famous map with a nine-dash line is the biggest culprit. Despite many requests, China has not yet clarified what the line actually represents. Does it claim all the land inside the line? Does the line define the boundaries of an exclusive economic zone? If so, how can it claim exclusive use of these waters while not using the standards set in UNCLOS?

Despite many requests, China has not yet clarified what the line actually represents.

The case will help, and help everyone

The Philippine case against China primarily seeks to gain greater clarity over these issues. The Philippines would like the court to rule that UNCLOS rules apply to China when it comes to defining what waters they can claim and that, specifically, China’s nine-dash line is contrary to those rules. The Philippines also asked the court to apply the rules to some features, specifically that these features—whoever owns them—are rocks that do not generate their own exclusive economic zone. On this latter point, the Philippines may be able to avoid some situations where the exclusive economic zone it has today overlaps with one coming from a disputed feature.

Although the Philippines is the country that lodged the case, other claimants in Southeast Asia stand to benefit from the clarity of the ruling. After all, China’s nine-dash line does not only overlap with the Philippines’s claims and EEZ, but also with Malaysia’s, Vietnam’s, Brunei’s and possibly Indonesia’s. All of these countries have been waiting for the ruling just as intently as the Philippines. If all goes well, they may yet decide to file cases of their own.

All of these countries have been waiting for the ruling just as intently as the Philippines.

As many have pointed out, but always bears repeating, no part of the Philippines’s case deal with who owns what in the West Philippine or South China Seas. Even so, the ruling can help clear up a good amount on its own. Ultimately, the case will be only one step in a process that eschews “might makes right” in resolving the disputes. Understanding that this is a milestone, and not a destination, may help some resist abandoning the cause too soon.

***

Angelica Mangahas is the deputy executive director of the Albert Del Rosario Institute (ADRi).

Originally posted on The Philippine Star

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