China keeps Spratlys. Duterte did a good job.



This fact & 30 pesos will get you a cup of coffee at a 7-11:

On July 12, 2016, the Hague-based Permanent Court of Arbitration (PCA) released a verdict on a Philippines’ arbitration request filed in respect of China and its actions in 2013. The arbitral ruling discredited a nine-dash line being used by China for the claims of nearly the entire West Philippines Sea or South China Sea including part of the Philippines’ exclusive economic zone (EEZ).

It did not decide ownership.

Nevertheless, the Philippines have fishing rights and offshore resource rights.  The PCA implied China had violated the Philippines’ sovereign rights in its EEZ by interfering with Philippine fishing and petroleum exploration, constructing artificial islands and failing to prevent Chinese fishermen from fishing in the zone.

The actual ownership of the Spratlys has not been decided by a tribunal but China has claimed the Spratlys for a century or more and acted on that claim. It is a very solid claim but not the only solid claim. On historical facts, Vietnam may have an earlier claim. Both are of a fact of hearsay and some vague written agreements by parties having an even lesser validity to their claim.


by Micheal John


Duterte did not give the Spratly islands to China; they are claimed by Malaysia, Taiwan, Thailand, Vietnam & others. The 1887 Chinese-Vietnamese Boundary convention signed between France and China after the Sino-French War of 1884-1885 recognised China as the owner of the Spratly and Paracel islands. China continued to act as if that was the reality.

It’s a rout. President Duterte had next to nothing to work with. Duterte has his proverbial hat in hand. China will control the entire South China Sea including that part claimed by the Philippines, but Duterte has a door open to discuss sharing that control in some aspects.

In 2006, China submitted a declaration excluding all disputes that might involve questions of sovereignty and issues of delimitation of maritime boundaries from the procedure of compulsory settlement of disputes specified under Section 2 of Part XV, which is subject to the limitations and exceptions specified under Section 3 of Part XV of the Convention. The Arbitral Tribunal was constituted in accordance with Annex VII of the UNCLOS, which is provided as a default procedure under article 287(3), to consider the submissions of the Philippines. China refused to participate in its proceedings, citing its declaration. (Cite The South China Sea Arbitration (The Philippines v. China): Assessment of the Award on Jurisdiction and Admissibility  – by Sreenivasa Rao Pemmaraju)

The trump card that the Philippines may have is while there is a complex array of claims, non bear obvious strength over the other hence res nullius may apply. That’s important which you’ll see when you read the next paragraph. Unfortunately the Philippines in 2013 did not ask the Tribunal to decide ownership. What it asked for is somewhat worthless under the circumstances. Of course the nine-dash line is absurd. It was meant in the first place as a general illustration but never intended as a naval navigation nor legal description.

When the Philippines got Independence, the Spratlys were not included

The Spratly islands and reefs lie within the Philippines 200-mile Exclusive Economic Zone (EEZ) and according to the 1982 United Nations Convention on the Law of the Sea, that is entitlement as long as the islands were res nullius meaning that nobody else had claimed them.

That poses a problem for the Philippines. Several countries including Taiwan, Vietnam, Malaysia plus China had already claimed the islands and reefs, some of which are no more than small rocks sticking out of the water at low tide. The other problem for the Philippines is that in 1898 when America acquired the Philippines from Spain it did not acquire the Spratlys. (Cite: The Treaty Making Power of the United States Volumeby  Charles Henry Butler)

On December 10, 1898, in a treaty that ended the Spanish–American War, Spain relinquished all claim of sovereignty over and title to Cuba, and ceded Puerto Rico, Guam, and the Philippines to the United States. This Treaty of Paris came into effect on April 11, 1899, when the documents of ratification were exchanged. (Cite: The Treaty Making Power of the United States Volumeby  Charles Henry Butler)

On 11 June 1978, President Ferdinand Marcos of the Philippines issued Presidential decree No. 1596, declaring the Spratly Islands as Philippine territory. Not worth the paper it was printed on, because it ignored all other claims going back centuries, that was contested by other countries. (Cite Presidential Decree 1596)

In July 2016 the aforementioned Law of the Sea tribunal concluded there was no legal basis for China to claim historic rights to resources, in excess of the rights provided for by the Convention, within the sea areas falling within the ‘nine-dash line’. But in the case of the Spratlys, its claim is substantial.

It did not assign ownership of the islands to anyone as that was not addressed by the action brought by the Philippines. Vietnam has an ancient claim against the islands which has as much strength as China’s, perhaps. But that has not been decided.  (Cite: Oxford AcademicThe South China Sea Arbitration (The Philippines v. China): Assessment of the Award on Jurisdiction and Admissibility)

In 2006, China had submitted a declaration excluding all disputes that might involve questions of sovereignty and issues of delimitation of maritime boundaries from the procedure of compulsory settlement of disputes specified under Section 2 of Part XV, which is subject to the limitations and exceptions specified under Section 3 of Part XV of the Convention. The Arbitral Tribunal was constituted in accordance with Annex VII of the UNCLOS, which is provided as a default procedure under article 287(3), to consider the submissions of the Philippines. China refused to participate in its proceedings, citing its declaration. The Tribunal accordingly had to first settle matters concerning its jurisdiction. The Tribunal then rendered its award that it has jurisdiction on some of the Philippines’ submissions and suspended its decision on others, linking them to the merits. (Cite The South China Sea Arbitration (The Philippines v. China): Assessment of the Award on Jurisdiction and Admissibility  – by Sreenivasa Rao Pemmaraju)

In 1946, the Americans reminded the Philippines at its independence ceremony that the Spratlys was not Philippine territory, both to not anger Chiang Kai-shek in China and because the Spratlys were not part of the Philippines per the 1898 treaty Spain signed with America when it first became the owner of the Philippines.  (Cite: War or Peace in the South China Sea — Timo Kivimäki)

 

Don’t expect a disorderly retreat of defeated President and Ministers. There was nothing the team could do except ask and as they did, seek a code of conduct and possible shared access.

Reading  Melissa Hemingway‘s articlePhilippines better off on good side of China”, one notes that some persons interviewed worried that President Duterte would be selling out to China if “letting” China continue (as if anyone can stop China now) its operations in the Spratlys. The problem with that theory is that China may, as America deducted in 1946, own the Spratlys. Somebody should have paid attention to the American’s warning in 1946.

Duterte has done the absolute best that he can do under the circumstances and the door seems to be open for cooperation in resource exploration and exploitation. The problem is unprecedented and Duterte is making the best of it so far.

Filipinos likely will be furious, but Filipinos did not give, from previous governments, what Duterte needed to get what they wanted. It may not be true, in fact the Americans warned in 1946 that the Spratlys did not belong to the Philippines and in fact the Americans ascribed the Spratlys to China at the time of the Independence event in 1946, moreover in 1898, as mentioned earlier, Spain did not believe it owned the Spratlys while it owned the Philippines. This belief was held on the basis of the 1887 Chinese-Vietnamese Boundary convention signed between France and China after the Sino-French War of 1884-1885. It recognised China as the owner of the Spratly and Paracel islands.

Watch this explanation of the South China Sea conundrum. The issues are more complicated than most Filipinos realize. It is unlikely that PH owns the Spratlys. It does own the waters around this bizarre set of rocks and sand and has all the rights of the Convention to be there. That’s the part upon which President Duterte got China to agree to hold further talks. That’s a win.

Sadly, the Chinese investment promised to Duterte for playing nice has not, materialized. As Melissa Hemingway noted in her article “Philippines better off on good side of China”, the Chinese have brought gambling and some tragic problems to Manila. This also happened in Myanmar. It did not have a good result for that region of Myanmar.

Apart from the gambling and a surge of illegal Chinese workers, nothing has changed in three years.

Duterte with his friend in Davao City was promised a deal with China Telecom in which a respectable wireless carrier with 5G technology would spread across the country. Not one repeater has been erected.

This article does not apportion fault. That’s uncertain, but it is no less true that Filipinos might feel happier should they see the parties begin to fulfill their promises.

China was to be involved in building a rail line on Luzon island. Not one tie has been laid; not one railroad spike has been hammered.

Duterte Signs Generic Platitude-Filled Agreements with China – Ambassador tells Philippines State Television