Gov’t urged to ask UN to stop island-building
The Philippines should ask the United Nations International Tribunal on the Law of the Sea (Itlos) to stop China from building artificial islands in the South China Sea to avert further destruction of the marine environment, Supreme Court Senior Associate Justice Antonio Carpio said on Monday.
“China has destroyed seven reefs in less than two months. Seventy-percent of fish in the Philippines are spawned here and are carried by the tides to Palawan and even Vietnam. So this is our food source. And China doesn’t care,” Carpio said at a forum organized by the Foreign Service Institute in Pasig City.
Carpio was referring to China’s land reclamation at Kagitingan (Fiery Cross), Calderon (Cuarteron), Burgos (Gaven), Mabini (Johnson South), Panganiban (Mischief), Zamora (Subi) and McKennan (Hughes) reefs in the Spratly archipelago in the middle of the South China Sea.
“The Philippines can ask the tribunal to issue a provisional measure directing China to stop its reclamation to prevent serious harm to the marine environment,” Carpio said, referring to Article 192 of the United Nations Convention on the Law of the Sea (Unclos), which provides that “states have the obligation to protect and preserve the marine environment.”
“Even if China ignores it, the world will know that China is defying an international order,” Carpio added.
The Itlos, a 21-member body based in Hamburg, Germany, was established under the Unclos, which came into force in 1994 and was signed by 167 countries, including the Philippines and China.
The UN tribunal has the power to resolve disputes between states and is handling the Philippine petition to nullify China’s claim to nearly all of the 3.5-million-square-kilometer South China Sea, including waters within the country’s 370-kilometer exclusive economic zone (EEZ) known as West Philippine Sea.
Carpio said China violated Article 123 of the Unclos regarding cooperation on enclosed and semienclosed seas.
“China began reclamation without telling anybody about it. China has the duty to tell us so we can protect the marine environment,” he said.
Article 123 mandates states bordering an enclosed or semienclosed sea to “cooperate with each other in the exercise of their rights and in the performance of their duties” under Unclos.
To this end, Article 123 stated, “they shall endeavor, directly or through an appropriate regional organization: (a) to coordinate the management, conservation, exploration and exploitation of the living resources of the sea; (b) to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; (c) to coordinate their scientific research policies and undertake where appropriate joint programs of scientific research in the area; and (d) to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article.”
Exclusive economic zones
Carpio said Unclos authorized a state to construct artificial islands and exercise jurisdiction over them for as long as they lie in the state’s EEZ or its continental shelf.
But the land reclamation being undertaken by China is within the Philippines’ EEZ and continental shelf, Carpio said.
“Only the Philippines can put up structures, put up artificial islands [within its EEZ],” he said.
Under Article 60 of Unclos, Carpio said, due notice must be given of the construction of artificial islands, installations or structures, and permanent means for giving warning of their presence must be maintained.
The state must also establish a 500-meter safety zone around each, which must be subject to due notice and which must be respected by all shifts, he said.
Moreover, the artificial islands and the safety zones around them “may not be established where interference may be caused to the use of recognized sea-lanes essential to international navigation,” he added.
Carpio said that artificial islands, if illegally built, did not have 500-m safety zones like those enjoyed by oil rigs and other structures within EEZs.
China, he said, is trying to justify the reclamation by citing another provision in Unclos, Article 87, which also allows the construction of artificial islands.
Carpio pointed out that the provision applied only to high seas or international waters beyond a country’s EEZ.
The Chinese expansion in the South China Sea, which has drawn criticism from Asian and Western countries, includes the construction of multistory buildings, helipads, airfields, harbors and, most recently, lighthouses.
“Under Article 60, these artificial islands are not legal islands. They have no territorial sea, no territorial airspace and no EEZs. Therefore the United States’ Poseidon [surveillance planes] can fly over the areas without violating international law,” Carpio said.
He also spoke about the government’s need to strengthen its claim on Zamora Reef, which is within 360 to 360 km of the Philippines’ extended continental shelf (ECS).
“We have to file soon an ECS claim. So we can tell the tribunal that we filed it already and China has no right to put up structures at [Zamora] Reef,” Carpio said.
The UN arbitral court will hear oral arguments in the Philippine case against China from July 7 to 13.
China, which has refused to take part in the arbitration, is not expected to argue its claim to Philippine territory in the South China Sea.
“Since the beginning, China has already said that they will not participate (in the arbitration proceedings) and right now, we are already preparing for the oral arguments,” Charles Jose, spokesman for the Department of Foreign Affairs (DFA), told reporters on Monday.
Jose said the Philippine legal team would include lawyers based in the United States.
Asked whether the finding by maritime experts that coastal states in the South China Sea were losing $281 million annually from the damage caused by Chinese reclamation work would be elevated to the UN tribunal, Jose said the Philippines’ arbitration case had two objectives.
The first objective is to seek maritime clarification and maritime entitlements, he said.
“We would like the arbitral tribunal to affirm maritime
jurisdiction, territorial sea, the exclusive economic zone and continental shelf,” Jose said.
The second objective, he said, is to clarify “the character and nature of each of those features in the South China Sea and also determine their maritime entitlements.”
“So on those two objectives, I don’t see where the maritime damage [caused by] the Chinese reclamation work could come in. But, of course, it’s a very serious concern because the reclamation work contravenes the essence of [Unclos] and violates [its] provisions,” he said–With a report from Christine O. Avendaño
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