Ricardo Saludo
FIRST, let’s be clear about what we’re fighting over. Three things: territorial claims, sovereign rights over waters in our exclusive economic zone, or EEZ, and sovereign rights over the seabed in our extended continental shelf, or ECS.
Territorial claims cover land features like islands and shoals in the South China Sea. Depending on whether they are above water most of the year, these features may have territorial waters of 12 nautical miles (nm) or 22.2 kilometers from shore.
The EEZ stretches 200 nm, or 370 km, from our territorial baseline, the boundary set by Philippine law around our main islands, plus the territorial seas between them, including the entire Sulu Sea between Palawan and Mindanao.
Under the United Nations Convention on the Law of the Sea (Unclos), nations have exclusive rights to undertake or authorize economic activities in EEZ waters. Hence, fishing, marine tourism and similar economic activities on or under the zone’s waters can be done or allowed only by the EEZ owner.
Reaching 320 nm, or 592 km from territorial baselines, the ECS gives exclusive economic rights over the seabed. Oil and mineral extraction, marine construction and reclamation, and similar activities on or under the seabed can be undertaken or authorized only by countries to which extended shelves are awarded under Unclos.
The ECS can also go beyond 320 nm if the continental shelf naturally extends outside that distance. In the 2009 ECS filing by the Arroyo administration under Unclos, the Philippines claimed rights over Benham Rise, arguing that it was connected to our continental shelf on the eastern seaboard of Luzon Island. With no country objecting, Benham Rise, which is larger than Luzon, became part of our ECS.
So, to be clear: territorial claims are over islands and other features above water, and territorial waters 12 nm around them. EEZ rights cover economic activities in waters within 200 nm from territorial baselines, while ECS rights apply to undertakings on or in the seabed 320 nm from the baselines.
Many mistakenly think that EEZ and ECS confer full territorial sovereignty, so foreign vessels entering there without our permission are intruding in our territory. In fact, beyond the 12 nm territorial waters, there is freedom of navigation, giving all vessels the right of innocent passage.
So, unless they were proven to have conducted fishing or some other economic activity without our authority, or posed a threat to Philippine interests, the 200-plus Chinese vessels reported to have anchored near Whitsun or Julian Felipe Reef for many weeks could claim to be exercising freedom of navigation.
War or what?
Now, must there be war to assert territorial claims or exclusive economic rights?
About half a century ago, the Marcos government garrisoned and built an airstrip on Pag-asa Island in the disputed Spratlys. There have been other military actions, though nothing like the fighting between China and Vietnam in the Paracel Islands around the fall of the pro-Western regime in Saigon (now Ho Chi Minh City) in 1975.
In recent decades, the Philippines has mounted diplomatic protests, including daily missives from Foreign Affairs Secretary Teodoro Locsin Jr. over the 200 Chinese vessels near Julian Felipe Reef. We have also undertaken law enforcement and filed a case in the Permanent Court of Arbitration (PCA) at The Hague, Netherlands against Beijing’s “nine-dash line” claim over nearly all the South China Sea.
Law enforcement includes detaining and charging foreign fishermen and impounding their fishing vessels for unauthorized fishing in our EEZ. That has diminished, however, since 2012, after the arrest of Chinese fishing boats allegedly poaching endangered marine life in Scarborough or Panatag Shoal led to a confrontation with China and its takeover of the shoal.
The 2016 PCA ruling declared Beijing’s “nine-dash line” claim as contravening Unclos, which China itself had signed and ratified. President Duterte set aside the ruling, but analysts noted that the Chinese complied with certain provisions. They stopped reclamation at Fiery Cross Reef and Mischief Reef (though construction on the artificial islands went on), and Filipinos were allowed to fish around Panatag Shoal (but not in it).
But things changed this past year. Last July, on the fourth anniversary of the PCA decision, Secretary Locsin and US Secretary of State Mike Pompeo publicly extolled it, and Pompeo openly contested Beijing’s maritime claims, citing the 2016 ruling and offering American help to Southeast Asian nations challenging the “nine-dash line.”
Then last September, President Duterte raised the arbitral award at the 75th UN General Assembly. Beijing did not protest loudly then, but in February, the 200-plus Chinese vessels near Whitsun Reef reasserted its South China Sea claim and its rejection of The Hague decision (https://www.manilatimes.net/2021/04/08/opinion/columnists/as-duterte-urges-peace-will-there-be-hostilities/861187/).
The Chinese flotilla also showed that rival claimants, especially China with its huge military superiority, could disregard protests and rulings. Perhaps for that reason, President Duterte has warned that military action was needed to enforce our sovereign rights. Indeed, he said he would send warships if the Chinese drilled for oil in the Philippine ECS without our permission.
A group of 528 professors from Philippine colleges and universities, including the University of the Philippines, Ateneo de Manila University, De La Salle University and University of Santo Tomas, issued a joint statement to “debunk the argument that asserting sovereignty constitutes war.” They also expressed support for Defense Secretary Delfin Lorenzana’s demand that China withdraw its flotilla from the waters around Julian Felipe Reef, said to be a maritime militia under the People’s Liberation Army, the country’s armed forces.
So, who’s right? Will it take war to stop incursions and violations in our exclusive economic zone and extended continental shelf, and to lay claim over territories we claim on the high seas?
Let’s talk about that next week.
(The last part will be published next Thursday, April 29, 2021)
Republished from Manila Times 22-04-2021