Category: South China Sea

Water source crucial in determining status of Itu Aba (1)

Ellen

Itu Aba. Photo by AMTI.CSIS.org

Itu Aba. Photo by AMTI.CSIS.org


Is the water coming from the grounds of Itu Aba (Chinese name: Taiping; Philippine name: Ligaw) suitable for drinking?
The answer to this question is crucial in determining whether Itu Aba is an island or a rock.

The determination of Itu Aba’s feature- whether a rock or an island- is important in establishing the extent of the Philippine’s territory and coverage of its sovereignty.

Itu Aba, occupied by Taiwan, is the biggest feature in the Spratlys in South China Sea which is being claimed wholly by China and Taiwan and partly by Philippines, Vietnam, Malaysia and Brunei.

The United Nations Convention on the Law of the Sea or UNCLOS defines an island as “a naturally formed area of land, surrounded by water, which is above water at high tide.”

An island is entitled to maritime regimes similar to a land territory: territorial sea (12 nautical miles from the baseline), contiguous zone (24 nm), economic exclusive zone (200 nm), continental shelf (200 nm) and extended continental shelf (350nm).
On the other hand, “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf,” according to UNCLOS.

The issue of whether Itu Aba is a rock or an island has again come to the fore with the visit of Taiwan’s outgoing President Ma Ying-jeou there last Jan. 28.

In his speech addressing the troops stationed in Itu Aba, Ma voiced his resentment that Taiwan had been ignored in the arbitration case filed by the Philippines against China before the U.N Arbitral Tribunal when Itu Aba was included among the Spratlys features being contested.

Ma said:“The Philippines sought arbitration with the Permanent Court of Arbitration in 2013 concerning competing claims with mainland China vis-à-vis the South China Sea. This arbitration is of particular importance to our country, yet we have not been invited to participate, nor has our opinion on the matter been sought. “

Foreign Affairs officials explained that the Philippines has no diplomatic relations with Taiwan because it adheres to the One China policy, which recognizes the Beijing government as representative to the Chinese people. The People’s Republic of China considers Taiwan as its province. The Philippines’ relations with the Republic of China (Taiwan), robust as it is, is limited to “people to people.” Political exchanges with Taiwan are banned under the One- China policy.

Moreover, Taiwan is not a member of the United Nations.

In his speech, Ma talked lengthily about Itu Aba or Taiping’s capability to sustain human habitation.

President Ma Ying-jeou visits Itu Aba

President Ma Ying-jeou visits Itu Aba

He said: “The Philippines holds that Taiping Island has no freshwater, and no arable soil, claiming that food and water must all be imported and human habitation is impossible. This, the Philippines says, means that it is not an island, but a rock, to which no claim can be made on territorial waters beyond 12 nautical miles. However, such statements find no basis in either science or fact; they are totally wrong. The economic, environmental, and cultural realms all provide evidence sufficient to show that the island has—and has had for over 100 years—ample resources to be self-sufficient.

“Geological study of the island shows that Taiping Island was formed perhaps 3 million years ago. Roughly 20,000 years ago, it rose upward to 100 meters above sea level. Perhaps this sheds light on why Taiping Island became the only island in the Nanshas to have its own sources of potable water.

“Annual rainfall on Taiping Island is roughly 3,000 mm. Rainwater is either trapped by the soil or seeps down into the coral below. The coral layer further down, having been there for a million years, has been lithified and become impervious to water, meaning that the island has a rich supply of groundwater. Water from the best well, the No. 5 well, has been tested by experts and found to be close to that marketed internationally under the brand name Evian in terms of conductivity and total dissolved solids. It can be drunk directly, and tastes as good as mineral water sold in stores.

“Historical documentary evidence attests to the presence of freshwater on the island. The earliest appearance of such documents is in 1879, with the Royal Navy’s The China Sea Directory, in which it attests to the use of Taiping Island by Chinese fishermen and the presence of wells, of which it states, ‘The water found in the well on that island was better than elsewhere.’

“ In 1939, a survey report on Taiping Island by a technician working at Taichu Prefecture (today’s Taichung City, Changhua County, and Nantou County) states that ‘the island has abundant potable water, sufficient for both fishing vessels and for use on the island itself.’

“ In 1946, a report written during a survey of the Nansha Islands by an ROC naval flotilla states that ‘there are several wells on the island, the water drawn from which is excellent.’ In 1994, the Council of Agriculture, in ‘Nanhai Shengtai Huanjing Diaocha Yanjiu Baogao,’ a report on the ecology of the South China Sea, states that the freshwater at two places on Taiping Island is of better quality than that found in most rivers or lakes. The Coast Guard Administration, meanwhile, last December released ‘Living Conditions on Taiping Island,’ which states that of the four wells on the island, the water of one is used to raise tilapia, while the other three can provide 65 tons of freshwater daily, and that on the average freshwater accounts for 92 percent of water drawn from these wells. Water drawn from Well No. 5, meanwhile, is 99 percent freshwater of good quality. History thus attests to the plenitude and quality of freshwater on Taiping Island, sufficient to support human life.”

In the hearing of Arbitral Tribunal on the Philippine suit against China in The Hague November last year, the Philippine panel presented an expert who testified that there is no freshwater in Itu Aba and cannot sustain human habitation. Therefore, it is a rock.

We will discuss this in the next column.

South China Sea looms large even if not in APEC 2015 agenda

Ellen Leave a comment

APEC 2015 logo
South China Sea looms large even if it is not in the agenda of the 2015 meeting of 21 leaders of the Asia Pacific Economic Cooperation who will be meeting in Manila on Nov. 18 and 19.

Foreign Undersecretary Lula del Rosario, chair of the APEC 2015 Senior Officials Meetings, which did all the vital spadework for the Foreign Ministers Meeting and the Leaders Meeting, gave two reasons why South China Sea is not in the agenda.
First, the South China Sea issue is political.

Second, South China Sea is not common to all APEC members.

APEC is an organization of Economies, not countries (That’s why Hongkong is member separate from China. So is Taiwan.) Started in 1989, APEC’s primary goal is to support sustainable economic growth and prosperity in the Asia-Pacific region.
Its 21 member economies are home to around 2.8 billion people and represent approximately 57 per cent of world GDP and 47 per cent of world trade in 2012.

APEC2015 senior officials meeting. They did the preparatory work for the Leaders Summit.

APEC2015 senior officials meeting. They did the preparatory work for the Leaders Summit.


APEC members are Australia, Brunei Darussalam, Canada, Chile, China, and Hong Kong, Indonesia;
Japan, South Korea, Malaysia, Mexico, New Zealand, Papua New Guinea, Peru;
Philippines, Russia, Singapore, Chinese Taipei or Taiwan, Thailand, United States and Viet Nam.

The uniting element for APEC member economies is the Pacific Ocean. Although not all countries along the Pacific Ocean are APEC members.

“If you talk about the sea, you talk about the Pacific Ocean. Latin America is outside the South China Sea. How do you expect Peru (which is the host of the 2016 APEC) to participate in the discussion about the South China Sea problem?” del Rosario explained.

Next week’s APEC comes less than three weeks after the United Nations Arbitral Tribunal ruled that it has jurisdiction to hear some territorial claims the Philippines has filed against China over disputed areas in the South China Sea.

It was a major blow to China which has vehemently opposed internationalizing the conflicting claims in the South China Sea and insists on bilateral talks with other claimants.

The UN Arbitral Court

The UN Arbitral Court

China claims almost the whole of the South China Sea with its nine-dash line map. So does Taiwan, a sovereign state which China considers its province. Last Saturday Chinese President Xi Jinping and Taiwan’s President Ma Ying-jeou held a historic meeting in Singapore, the first in 60 years.

Brunei, Malaysia, Philippines and Vietnam claim parts of South China Sea.

China, which refused to participate in the case said it considers the Arbitral Tribunal’s Oct. 29 decision “null and void, and has no binding effect on China.”

Del Rosario said she has been assured by Chinese senior officials that China will be represented in the Leaders Meeting but it’s not sure if its President Xi Jinping or Premier Li Keqiang.

During the two-day meeting, there’s a good chance that the Chinese Leader, be it Xi or Li, will be talking with U.S. President Barack Obama, who has been reiterating on Freedom of Navigation in the South China Sea as China expanded its occupation in the disputed waters through reclamations and installations of facilities.

Each year, $5.3 trillion worth of trade which represents 40 per cent of the world trade, passes through the South China Sea. Some $1.2 trillion of the total global trade is by the United States.

USS Lassen

USS Lassen

Last Oct. 27, a U.S. Navy destroyer, USS Lassen sailed through within 12 nautical mile of Chinese occupied Subi Reef. No armed confrontation happened although China protested the sail-by calling it “illegal” and “provocative.”

U.S. defense officials said they will be making more freedom of navigation patrols in the South China Sea waters while China’s foreign ministry spokesman warned “we will decide when and how to respond in our own way.”

No bilateral meeting is scheduled between the Chinese leader and President Aquino.

South China Sea looms large even if not in APEC 2015 agenda

Ellen Leave a comment

APEC 2015 logo
South China Sea looms large even if it is not in the agenda of the 2015 meeting of 21 leaders of the Asia Pacific Economic Cooperation who will be meeting in Manila on Nov. 18 and 19.

Foreign Undersecretary Lula del Rosario, chair of the APEC 2015 Senior Officials Meetings, which did all the vital spadework for the Foreign Ministers Meeting and the Leaders Meeting, gave two reasons why South China Sea is not in the agenda.
First, the South China Sea issue is political.

Second, South China Sea is not common to all APEC members.

APEC is an organization of Economies, not countries (That’s why Hongkong is member separate from China. So is Taiwan.) Started in 1989, APEC’s primary goal is to support sustainable economic growth and prosperity in the Asia-Pacific region.
Its 21 member economies are home to around 2.8 billion people and represent approximately 57 per cent of world GDP and 47 per cent of world trade in 2012.

APEC2015 senior officials meeting. They did the preparatory work for the Leaders Summit.

APEC2015 senior officials meeting. They did the preparatory work for the Leaders Summit.


APEC members are Australia, Brunei Darussalam, Canada, Chile, China, and Hong Kong, Indonesia;
Japan, South Korea, Malaysia, Mexico, New Zealand, Papua New Guinea, Peru;
Philippines, Russia, Singapore, Chinese Taipei or Taiwan, Thailand, United States and Viet Nam.

The uniting element for APEC member economies is the Pacific Ocean. Although not all countries along the Pacific Ocean are APEC members.

“If you talk about the sea, you talk about the Pacific Ocean. Latin America is outside the South China Sea. How do you expect Peru (which is the host of the 2016 APEC) to participate in the discussion about the South China Sea problem?” del Rosario explained.

Next week’s APEC comes less than three weeks after the United Nations Arbitral Tribunal ruled that it has jurisdiction to hear some territorial claims the Philippines has filed against China over disputed areas in the South China Sea.

It was a major blow to China which has vehemently opposed internationalizing the conflicting claims in the South China Sea and insists on bilateral talks with other claimants.

The UN Arbitral Court

The UN Arbitral Court

China claims almost the whole of the South China Sea with its nine-dash line map. So does Taiwan, a sovereign state which China considers its province. Last Saturday Chinese President Xi Jinping and Taiwan’s President Ma Ying-jeou held a historic meeting in Singapore, the first in 60 years.

Brunei, Malaysia, Philippines and Vietnam claim parts of South China Sea.

China, which refused to participate in the case said it considers the Arbitral Tribunal’s Oct. 29 decision “null and void, and has no binding effect on China.”

Del Rosario said she has been assured by Chinese senior officials that China will be represented in the Leaders Meeting but it’s not sure if its President Xi Jinping or Premier Li Keqiang.

During the two-day meeting, there’s a good chance that the Chinese Leader, be it Xi or Li, will be talking with U.S. President Barack Obama, who has been reiterating on Freedom of Navigation in the South China Sea as China expanded its occupation in the disputed waters through reclamations and installations of facilities.

Each year, $5.3 trillion worth of trade which represents 40 per cent of the world trade, passes through the South China Sea. Some $1.2 trillion of the total global trade is by the United States.

USS Lassen

USS Lassen

Last Oct. 27, a U.S. Navy destroyer, USS Lassen sailed through within 12 nautical mile of Chinese occupied Subi Reef. No armed confrontation happened although China protested the sail-by calling it “illegal” and “provocative.”

U.S. defense officials said they will be making more freedom of navigation patrols in the South China Sea waters while China’s foreign ministry spokesman warned “we will decide when and how to respond in our own way.”

No bilateral meeting is scheduled between the Chinese leader and President Aquino.

UN Arbitral Panel Rules In Favor of the Philippines: Now What?

Ellen Leave a comment

Former Foreign Secretary Roberto R. Romulo

Former Foreign Secretary Roberto R. Romulo

By Roberto R. Romulo

Foreign Secretary Albert del Rosario’s dogged determination to pursue the South China Sea/West Philippine Sea dispute through the rule of law has proven his approach correct. The court ruled that the case was “properly constituted” under the United Nations Convention on the Law of the Sea, that China’s “non-appearance” (i.e., refusal to participate) did not preclude the Court’s jurisdiction, and that the Philippines was within its rights in filing the case.

In the period before the ruling, there was a lot of pressure on the Secretary to dial down his stance and seek accommodation with China. While China has insisted on resolving the issue on a bilateral basis, the Secretary has maintained that this would leave us at a disadvantage and that in the instances where we tried to open dialogue, China has been unresponsive. That said, now that our hand has been strengthened, the argument in favour of the merits of seeking a peaceful, managed resolution has I think become even more persuasive. However, the responsibility of how to respond to this challenge will now have to be made by the incoming Administration. Unfortunately, the sounds currently coming from presidential aspirants or supporters of the aspirants reveal a misunderstanding of what the case is all about, claiming victory for our sovereign rights over the area. They have to get up to speed on the issue and determine the best way forward to protect the national interest rather than engaging in just nationalistic rhetoric.

There is still a long way to go and it is possible that the Court may ultimately find no merit in or no jurisdiction over a number of Philippine assertions. But it is true that it is a major boost to our effort to resolve the dispute through the application of the rule of law. Some observers do say that the determination of jurisdiction phase was the most vulnerable to political and diplomatic pressure. The members of the Court could have bailed out by saying that it did not have jurisdiction over the matter because for example, it touches on sovereignty issues. But in fact the Court voted unanimously as the case “concerns only whether the Tribunal has jurisdiction to consider the Philippines’ claims and whether such claims are admissible.”

Our 4,000 page Memorial however was cleverly constructed to limit the assertions to the interpretation of international law, principally UNCLOS, and not directly on the question of sovereignty. Now, the merits of the case will be decided on the basis of internationally established rules and precedents. The legal experts are convinced we have a strong case. At the very least it would ensure that, even without China’s participation, the merits of its 9-dash line (which is the basis of its claim of sovereignty) will be evaluated by a neutral international body. China has managed to avoid explaining the logic behind the 9-dash line by taking a position of “strategic ambiguity” – laying claim to a wide expanse of waters and mostly submerged reefs and rocks on the basis of historical rights. They deliberately ignore the question of whether these reefs and rocks meet the UNCLOS criteria for generating territorial waters and even more so, an EEZ. Under UNCLOS, only naturally formed islands and islets of certain elevation at high tide are capable of generating territorial waters and only islands capable of supporting permanent human habitation can generate both territorial sea and EEZ.

Now the entire South China Sea is about 3.5 million square kilometres but the total land area of all islands and features is only 15 square kilometers at low tide. Simple math would suggest that this would in no way give China the right to claim ownership of the entire area, even if in the unlikely event that its sovereignty claim over these land features is upheld. In fact, the Philippine position is that if the 9 dash line has no basis in international law, then China does not have a basis for laying claim to sovereignty over completely submerged areas, or historic rights to living and non-living natural resources, including control of maritime navigation.”

The incoming Administration would have several factors in its favour as it seeks to find a peaceful resolution. First, the dispute has been internationalized. China’s disregard of the legal avenue for resolution and its aggressive reclamation has drawn reprobation. Even the normally neutral ASEAN countries have become unsettled by China’s actions and have expressed their disapproval..

Ironically, the ruling may have a salutary effect on the prospects for a binding Code of Conduct for the South China Sea which had long languished on account of China’s delaying tactics. The Court has rejected an argument in China’s position paper that the “2002 China–ASEAN Declaration on the Conduct of Parties in the South China Sea constitutes an agreement to resolve disputes relating to the South China Sea exclusively through negotiation.” The Court has decided that the Declaration on Conduct was a “political agreement that was not intended to be legally binding”. So now even China might find this a more palatable forum than one that involves non-ASEAN parties. Secondly, the U.S. has taken an active involvement in the dispute by sending its Navy ships to test China’s assurance of freedom of navigation and at the same time probing the lengths to which China is prepared to justify its 9-dash line boundary. Thirdly, Japan, Vietnam and the Philippines have found common ground on this issue and opens up wide areas for cooperation.

But while these pressure points might encourage China to moderate its aggressive stance, it is its internal situation that would determine how much flexibility it would have. President Xi Jin Ping is still consolidating his hold and cannot afford to appear soft. He is also facing the challenge of a slowing Chinese economy as it transition from dependency on exports and investments to a more balanced and sustainable model where domestic consumption is a key component. The Chinese people’s nationalism can easily be stoked by recalling its long history of colonial subjugation and invoking its rightful place in the world for its remarkable achievements.

July 2015 hearing at the Peace Palace, The Hague

July 2015 hearing at the Peace Palace, The Hague

China has already said it will not honor the outcome of the arbitration. Nor should we expect them to. Any resolution to this long festering issue will have to take into account China’s interests as well and provide “face” to the Leadership. The fact that China’s Leaders will be dealing with a new Philippine Leader would allow both to dial down from their current stand-off without losing face. The adoption of a binding Code of Conduct would go a long way in keeping the status quo.

Then both sides can then buckle down to the most difficult issue. I believe that sharing resources that can be found in the area is the easier dilemma to deal with than the issue of who should guarantee freedom of navigation in this vital waterway. Since the U.S. does not trust China and China in turn does not trust the U.S. can ASEAN take that role? These are just some of the issues that our Presidential aspirants should be thinking of now. The Court will render its ruling in 2016 and this is one of major challenge that our new President will have to confront upon his assumption to the highest position of the land. The buck stops there.
One last point: China should realize that this issue is not just between the US and China but one that strikes at the heart of developing smaller countries of ASEAN countries which, with China struggled to be respected by world powers in constructing a new world order after the last world war where big and small , new and old countries are treated as equals.

(Roberto R. Romulo was Secretary of Foreign Affairs from July 1992 to May 1995. This commentary first came out in Philippine Star.)

The U.N. Arbitral Tribunal decision on PH case vs China

Ellen Leave a comment

No amount of China’s protestation that the Oct 29 decision of the United Nations Arbitral Tribunal is “null and void” and it has “no binding effect” on them, cancels the fact that it’s a major blow to them.

Filipinos, on the other hand, should understand that the U.N. Arbitral Court’s decision, although a win for the country, does not award the disputed islands and waters of Spratlys to the Philippines.

That’s precisely because that is not what the Philippines asked from the U.N. Arbitral Tribunal when it filed the case against China on Jan. 22, 2013.

Members of the Tribunal: Judge Thomas A. Mensah of Ghana, president; Judge Jean-Pierre Cot of France; Judge Stanislaw Pawlak of Poland; Professor Alfred Soons of the Netherlands; and Judge Rüdiger Wolfrum of Germany.

Members of the Tribunal: Judge Thomas A. Mensah of Ghana, president; Judge Jean-Pierre Cot of
France; Judge Stanislaw Pawlak of Poland; Professor Alfred Soons of the Netherlands; and Judge Rüdiger
Wolfrum of Germany.


What the Philippines asked the Tribunal concerned three basic issues: rule on the validity of China’s nine-dash line map; low tide elevations (rocks or reefs that can be seen only during low tide and disappear during high tide) where China has built permanent structures should be declared as forming part of the Philippine Continental shelf (200 nautical mile); and the waters outside the 12 nautical miles surrounding the Panatag Island (Scarbourough shoal) should be declared as part of the Philippines 200 nautical mile economic exclusive zone.

China questioned the jurisdiction of the Arbitral Tribunal saying the issues raised by the Philippines are territorial matters and are beyond the interpretation of the U.N. Convention of the Law of the Sea, which is the role of the tribunal.

Territorial issues – who has sovereignty over disputed territories- is the province of the International Court of Justice which requires that both parties agree to bring the issue to the court for resolution. Since China refused to bring the issue for international arbitration, the Philippines wisely opted to go to the UNCLOS Arbitral Tribunal.

In its decision, the Court stated: “Conscious that the Convention is not concerned with territorial disputes, the Philippines has stated at all stages of this arbitration that it is not asking this Tribunal to rule on the territorial sovereignty aspect of its disputes with China. Similarly, conscious that in 2006 China made a declaration, in accordance with the Convention, to exclude maritime boundary delimitations from its acceptance of compulsory dispute settlement procedures under the Convention, the Philippines has stated that it is not asking this Tribunal to delimit any maritime boundaries.

In its press release on the Award, the Court said, “This arbitration concerns the role of ‘historic rights’ and the source of maritime entitlements in the South China Sea, the status of certain maritime features in the South China Sea and the maritime entitlements they are capable of generating, and the lawfulness of certain actions by China in the South China Sea that are alleged by the Philippines to violate the Convention.”

The Tribunal said the decision was “unanimous” and underscored that it “concerns only whether it has jurisdiction to consider the Philippines’ claims and whether such claims are admissible.”

“The Award does not decide any aspect of the merits of the Parties’ dispute,” the statement said.

That judgment will come after the hearings where the Philippines will argue on the merits of its submissions. The Philippines’ American lawyer, Paul Reichler, has been quoted as saying that the decision may come mid-2016.

In its press statement, the Tribunal said, “In its Award, the Tribunal has held that both the Philippines and China are parties to the Convention and bound by its provisions on the settlement of disputes. The Tribunal has also held that China’s decision not to participate in these proceedings does not deprive the Tribunal of jurisdiction and that the Philippines’ decision to commence arbitration unilaterally was not an abuse of the Convention’s dispute settlement procedures. “

The Tribunal dismissed the arguments stated by China in its position paper that was not officially submitted but nevertheless, considered by the Court. It said, “Reviewing the claims submitted by the Philippines, the Tribunal has rejected the argument set out in China’s Position Paper that the Parties’ dispute is actually about sovereignty over the islands in the South China Sea and therefore beyond the Tribunal’s jurisdiction.

The Tribunal has also rejected the argument set out in China’s Position Paper that the Parties’ dispute is actually about the delimitation of a maritime boundary between them and therefore excluded from the Tribunal’s jurisdiction through a declaration made by China in 2006. On the contrary, the Tribunal has held that each of the Philippines’ Submissions reflect disputes between the two States concerning the interpretation or application of the Convention.

The Tribunal has also held that no other States are indispensable to the proceedings.”