By: Prof. Jose Maria Sison
Published 12 July 2016 (10 hours 43 minutes ago)
It is best for China to come to terms with the Philippines and other ASEAN countries.
The Permanent Court of Arbitration, or Arbitral Tribunal of the ITLOS, issued today its judgment on the case of the Philippines against the People’s Republic of China. It gave the Philippines a clear-cut and resounding victory.
The judgment upholds the sovereign rights or entitlement of the Philippines over its exclusive economic zone and extended continental shelf under the U.N. Convention on the Law of the Sea and invalidates China’s nine-dash claim of false historic rights over 90 per cent of the South China Sea.
It holds China culpable for having violated the sovereign rights of the Philippines, unjustly attacking or hindering Filipino fishermen, preventing Philippine oil exploration and other economic activities, damaging marine life and environment by unlawfully building artificial islands and endangering navigation.
All countries, especially China, should respect the final and binding decision of the Tribunal. The arrogant claims of China over almost the entire South China Sea have no leg to stand on. China must accept the ruling in the face of the international community, especially the signatories of the UNCLOS, the majority members of the U.N. General Assembly, the ASEAN and other neighboring countries.
China will certainly face reputational damage by continuing to violate international law. It cannot boast of its supposed economic and military power to ignore or violently oppose the judgment of the Tribunal. This is a time of serious economic and social troubles for China domestically because of its own crisis of overproduction and extreme abuse of credit and public debt and because of the ever worsening crisis of the global capitalist system. More powerful capitalist countries are not on the side of China on the issue of Philippine rights under UNCLOS.
It is best for China to come to terms with the Philippines and other ASEAN countries, respond positively to the call of President Duterte for appropriate bilateral negotiations and counter the scheme of the United States to pretend being the protector of the Philippines and yet dominating, occupying Philippine territory with the use of military bases, oppressing and exploiting the entire Filipino people.
The Tribunal concludes in its Award or ruling that there is no legal basis for China to claim historic rights to resources within the sea areas falling within the so-called “nine-dash line.” It explains that the Convention comprehensively allocates rights to maritime areas and that protections for pre-existing rights to resources were considered, but not adopted in the Convention.
Accordingly, the Tribunal rules that, to the extent China had historic rights to resources in the waters of the South China Sea, such rights were extinguished to the extent that they were incompatible with the exclusive economic zones provided for in the Convention.
The Tribunal notes that although Chinese navigators and fishermen, as well as those of other states, had historically made use of the maritime features or elevations (shoals, reefs, islets and the like) in the South China Sea, there was no evidence that China had historically exercised exclusive control over the waters or their resources.
The Tribunal concludes that transient use of said maritime features does not constitute inhabitation by a stable community and that all of the historical economic activity had been extractive. Accordingly, the Tribunal rules that none of the Spratly Islands is capable of generating extended maritime zones.
The Tribunal rules that that none of the features claimed by China was capable of generating an exclusive economic zone and that it can—without delimiting a boundary—declare that certain sea areas are within the exclusive economic zone of the Philippines, because those areas are not overlapped by any possible entitlement of China.
The Tribunal finds China as having encroached on the exclusive economic zone of the Philippines and that China has violated the Philippines’ sovereign rights in its exclusive economic zone by (a) interfering with Philippine fishing and petroleum exploration, (b) constructing artificial islands and (c) failing to prevent Chinese fishermen from fishing in the zone.
The Tribunal also recognizes that fishermen from the Philippines (like those from China) have traditional fishing rights at Scarborough Shoal and that China has interfered with these rights in restricting access. The Tribunal further holds that Chinese law enforcement vessels had unlawfully created a serious risk of collision when they physically obstructed Philippine vessels.
The Tribunal takes China to task by damaging the marine environment with China’s recent large-scale land reclamation and construction of artificial islands at seven features in the Spratly Islands. It finds that China has caused severe harm to the coral reef environment and violated its obligation to preserve and protect fragile ecosystems and the habitat of depleted, threatened, or endangered species.
The Tribunal also finds that Chinese authorities are aware of Chinese fishermen having harvested endangered sea turtles, coral, and giant clams on a substantial scale in the South China Sea (using methods that inflict severe damage on the coral reef environment) and having failed to fulfill their obligations to stop such activities.
The Tribunal rules that China’s recent large-scale land reclamation and construction of artificial islands are incompatible with the obligations on a State during dispute resolution proceedings and castigates China for inflicting irreparable harm to the marine environment by building a large artificial island in the Philippines’ exclusive economic zone, and destroying evidence of the natural condition of features in the South China Sea that formed part of the Parties’ dispute.
Prof. Jose Maria Sison is Founding Chairman of the Communist Party of the Philippines and Chief Political Consultant for the National Democratic Front of the Philippines. He is also Chairperson of the International League of Peoples’ Struggle.