‘Friendly opposition’

Vietnam filed on July 18 a claim with the United Nations (UN) for an extended continental shelf (ECS) in the South China Sea. Actually, Vietnam was just following the lead taken a month ago by the Philippines, which first initiated this. The Vietnamese Foreign Ministry announced their submission that seeks also to reaffirm Vietnam’s sovereign claims over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagos spread out in the South China Sea (SCS).

But China insists on its nine-dash line claim almost over the entire SCS, including parts claimed by Brunei, Malaysia, Taiwan, the Philippines and Vietnam. Like the Philippines, China is among the signatory-countries to the UN Convention on the Law of the Sea (UNCLOS). In the disputed overlapping maritime claims at the SCS, Vietnam had established some 48 outposts; the Philippines and China have eight each; Malaysia has five and Taiwan has one.

 In his acceptance speech at the Republican National Convention where he was officially nominated as its presidential candidate in the coming November elections, former US president Donald Trump warned that “a growing specter of conflict hangs over Taiwan, Korea, the Philippines and all of Asia.” And the common denominator of the feared “conflict” obviously is China.

China’s nine-dash line claim, however, had already been ruled invalid on July 12, 2016 by the UN Permanent Court of Arbitration under the International Law of the Sea (ITLOS). The Arbitral Court effectively upheld the maritime claims of the Philippines covering our archipelagic 200-mile exclusive economic zone (EEZ). It was thus named the West Philippine Sea (WPS) in accordance with the ruling of The Hague-based Arbitral Court.

Regarded as a “strategic waterway,” an estimated $3 trillion worth of trade passes annually through the SCS. It is also believed to be rich in oil and natural gas deposits, aside from fish and several seafood stocks, corals and other valuable marine resources. Thus, it is not surprising China continues to ignore and defy the Arbitral Court ruling. The Philippine victory remains full backed by many, if not  all, countries around the world.

Eight years after this victory, the Philippines officially asked last July 15 to formally recognize the extent of its undersea continental seabed in the SCS where our country would have the exclusive right to exploit resources. Through the Philippine Permanent Representative to the UN in New York, our government officially submitted this to the UN Commission on the Limits of the Continental Shelf based on the findings of our own scientific research.

Under Article 76 of the UNCLOS, a coastal state such as the Philippines is entitled to establish the outer limits of its continental shelf, the Department of Foreign Affairs (DFA) explained earlier. This should bolster and secure our country’s sovereign rights and maritime jurisdictions in the WPS, the DFA added. And further strengthen the 2016 award on the SCS arbitration that confirmed the Philippines’ maritime entitlements and rejected those that exceeded geographic and substantive limits under the UNCLOS.

The ECS comprises the seabed and subsoil of the submarine areas extending beyond 200 nautical miles off Palawan but not to exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured. The National Mapping and Resource Information Agency of the Philippines led the ECS Technical Working Group that worked on this UN submission for over 15 years.

 Before Vietnam did, Malaysia filed earlier a counter-claim against the Philippine submission. The government of Malaysia sent a note verbale to UN Secretary General António Guterres on June 27. Through Malaysia’s permanent mission to the UN, the Malaysian government opposed the Philippine submission to UN body, citing it is projected from the baselines of Sabah. Kuala Lumpur reiterated that Malaysia has never recognized the Sultan of Sulu claims of Sabah but which the Philippine government has been supporting up to now.

The Malaysian Foreign Minister subsequently flew to Manila for high-level talks earlier this month with President Ferdinand “Bongbong” Marcos Jr. (PBBM) at Malacanang Palace. But no details were given on whether any compromise agreement was reached to resolve this Sabah issue. 

Yet, Vietnam, Malaysia and the Philippines are part of the ten member-states of the Association of Southeast Asian Nations (ASEAN).

At the Kapihan sa Manila Bay news forum last Wednesday, retired Supreme Court (SC) senior associate justice Antonio Carpio was unperturbed by these developments. In fact, Carpio even welcomed the submissions to the UN of both Malaysia and Vietnam. Though both submissions run counter to the Philippine ECS petition to the ITLOS, Carpio cited, such acts are accepted principle of international laws. 

If a country’s submission to the ITLOS is unopposed, this is deemed as “acquiescence,” or “waiver” by the other ITLOS member-countries, the retired magistrate pointed out. “If you file extended claim, if no opposition, the UN commission will award it to you. That’s what happened to our Benham Rise (claim), no opposition,” Carpio recalled. 

“If there is opposition, everything stops. The UN (ITLOS) commissioner won’t act and allow parties, claimant and oppositior, to negotiate, or go for arbitration,” Carpio explained.

The same process was invoked when the Philippines made its first submission to the Arbitral Court to contest China’s nine-dash line claim in the SCS. “Just like in the first arbitration, we filed statement of claim for purposes of arbitration to the president of ITLOS,” Carpio cited. Carpio, who was then still sitting at the SC, was designated as “observer” in the Philippine legal panel at the Arbitral Court.

After which, he further narrated, the president of ITLOS informed China that it is entitled to one arbiter and the Philippines will choose one, and the ITLOS will choose three to constitute the arbitral panel to conduct the hearings. “But China didn’t choose anyone. So ITLOS chose for China,” he noted. Still China refused to participate. 

Carpio would like to believe the Vietnam and Malaysia submissions are just “friendly opposition” to the Philippine ECS claims. 

Hopefully, China finally takes this as the route to peace for resolving disputes at the sea.