By J.C. Gotinga
A former solicitor-general urged Manila on Monday to identify individual reefs and islets in waters that it claims in the South China Sea, and delineate their maritime boundaries, to assert the Philippines’ rights in the disputed maritime region.
Former Supreme Court Associate Justice Francis Jardeleza, who was Manila’s solicitor general in its successful maritime arbitration case against Beijing, said he had urged President Rodrigo Duterte through a letter to endorse a proposed law that names and provides coordinates to 128 features in Philippine-claimed parts of the South China Sea, and defines baselines for 35 of them, from which to measure 12-nautical-mile territorial seas.
“I sent today a letter to the president expressing some concern that five years have lapsed and yet the country remains divided on how best to enforce the Arbitral Award,” Jardeleza told an online news forum.
“The proposed legislation names the individual features; thus, it constitutes an act of sovereignty in relation to each feature.”
Jardaleza is not a member of Congress, which is dominated by Duterte allies. But as a former member of the Philippines’ top court, he is considered one of the country’s legal luminaries.
A bill he helped draft includes the Spratly Islands and Scarborough Shoal, the site of a 2012 standoff between Philippine and Chinese government vessels. Manila subsequently filed a successful arbitration case, which nullified nearly all of China’s claims in the South China Sea.
Beijing, however, has steadfastly ignored the court’s 2016 ruling and maintains a presence in the reef. Meanwhile, the Philippines has been protesting the continuous presence of Chinese fishermen escorted by maritime militia ships elsewhere in the South China Sea since April.
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“The bill not only enforces the [arbitral] award but also ensures that the Philippines is the first claimant to legislate the individual names and baselines of the claimed features,” Jardeleza said.
The proposal is premised on the Permanent Court of Arbitration finding that none of the geological features in the South China Sea may be considered islands under international law. Thus, none of them entails an exclusive economic zone (EEZ) to overlap with the Philippine EEZ, which the tribunal affirmed in its July 2016 ruling.
What are commonly referred to as “islands” in the Spratlys group in the South China Sea are, at best, rocks that generate only a territorial sea.
“As some of these rocks and their territorial seas are occupied by a foreign state, it is necessary to delineate where the contested territorial seas end and where our uncontested EEZ begins,” Jardeleza said.
“This bill draws baselines around the contested rocks precisely to enable the Philippines to exercise its rights in its uncontested EEZ,” he added.
On Monday, presidential spokesman Harry Roque confirmed to BenarNews that the presidential palace had received the letter from Jardaleza but that officials were withholding comment until after they had studied it. The Chinese Embassy in Manila did not immediately respond to a query from BenarNews.
China claims nearly all of the South China Sea as its own, but five other Asian governments – Brunei, Malaysia, the Philippines, Taiwan and Vietnam – have territorial claims. While Indonesia does not regard itself as a party to the South China Sea dispute, Beijing claims historic rights to parts of the sea overlapping Indonesia’s exclusive economic zone.
What’s in a name?
Beijing has claimed and militarized at least seven reefs in the South China Sea, despite an earlier agreement among claimant nations to desist from actions that could further inflame tensions.
It has also named, mapped and registered trademarks for hundreds of features scattered in the disputed waters of the South China Sea.
In recent years, officials in Manila have complained about unauthorized Chinese vessels in Philippine-claimed waters, at times edging out Filipino fishing boats from traditional fishing grounds or blocking resupply missions to Philippine naval outposts.
In March, defense officials flagged the presence of some 200 trawlers they suspected to be manned by Chinese maritime militias anchored at Whitsun Reef within the Philippine EEZ. Manila demanded an exit, but Beijing insisted the area was within Chinese territory, and the trawlers were merely fishers taking shelter from bad weather.
The Chinese vessels lingered and reportedly even spread out to other reefs and islets, prompting Manila to file diplomatic protests with Beijing daily since April.
Amid these developments, Duterte refrained from condemning Beijing, insisting it was a “friend” and that Manila was grateful for assistance, including a badly-needed million doses of Chinese-made coronavirus vaccines.
Jardeleza and other experts on maritime law had been urging the government to capitalize on the 2016 award to rally international support and exert pressure on Beijing to comply with it.
Unable to match Beijing’s naval prowess, Manila has largely been unable to prevent incursions in its EEZ and claimed territories in the South China Sea. Its military modernization program has prioritized the acquisition of naval assets, but the pace hardly enables Manila to keep up with its rival.
But if Manila hastens to name individual reefs and islets for itself, then it effectively asserts its rights in its EEZ and claimed maritime territories that it refers to as the West Philippine Sea, according to Jardeleza.
“This bill is the most inexpensive and yet most effective means of enforcing the arbitral award, and strengthening our territorial and maritime rights in the West Philippine Sea,” he said.
But Antonio Carpio, a retired Supreme Court justice who helped argue the arbitration case, said he believed that Jardelza’s proposed bill was unnecessary.
He said Duterte could simply issue a presidential proclamation listing the geologic features, complete with names and coordinates, and that this would be faster than passing legislation.
“The status of the geologic features may change because of sea level rise. It is not practical to put the status of the geologic features in a law,” he said on Monday.