UNCLOS explained: Why China’s claims in South China Sea are invalid
Members of the Philippine team are seated at the Peace Palace in The Hague before starting oral arguments on the arbitration case against China’s claims over the West Philippine Sea. Members include Solicitor General Florin Hilbay, Senior Associate Justice Antonio Carpio, Justice Secretary Leila de Lima, Presidential Adviser on Political Affairs Ronald Llamas, Speaker Sonny Belmonte Jr., Executive Secretary Pacquito Ochoa Jr., Foreign Secretary Albert del Rosario, Defense Secretary Voltaire Gazmin, Associate Justice Francis Jardeleza, Chief Presidential Legal Counsel Benjamin Caguioa, Deputy Executive Secretary Menardo Guevarra, Consul General Henry Bensurto and legal counsels led by Paul Reichler of Foley Hoag. PHOTO FROM ABIGAIL VALTE’S TWITTER ACCOUNT
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MANILA, Philippines — With a little over a month before the Philippines submits its written arguments to the international Permanent Court of Arbitration, Solicitor General Francis Jardeleza publicly spoke for the first time about the basis of the Philippines’ case against China’s claim to nearly the entire South China/West Philippine Sea.
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“You need to have land before you can have rights to the sea. It’s as simple as that.You cannot just have rights to the sea without owning land,” Jardeleza said in a forum in the University of the Philippines (UP) law center, citing the basic principle of the United Nations Convention of the Law of the Sea (UNCLOS).
China, in 2009, submitted to the UN its “nine-dash line” claim that covers the entire South China Sea, including parts of the Philippines’ western seaboard from the provinces of Ilocos Norte up to Palawan.
READ: China violated Philippine sovereign rights in West Philippine Sea
China’s claim, however, has been repeatedly called invalid and not in accordance with UNCLOS, which the Philippines ratified in 1986 and China in 1996.
Maritime features
The UNCLOS states three different types of maritime features that allow for the waters surrounding a country to be claimed as part of its territory.
The first are “Islands” defined as “a naturally formed area of land, surrounded by water and above water at high tide,” Jardeleza said.
Islands, such as Luzon, entitles the country that owns it to a 12 nautical mile (approximately 22 kilometers) territorial sea from the coastline with which it has full sovereignty. A country can exclude foreign entities from its territorial sea.
The island is also entitled to a 200 nm (approximately 370 km) exclusive economic zone (EEZ), which gives the country the sole right to exploit the resources within it such as fish and also mineral and oil reserves, if any.
READ: China’s ‘nine-dash line, historic rights’ invalid–tribunal
The second are “rocks or reefs” that are mostly below water but have rocky protrusions above water during high tide. The important point under UNCLOS states that a maritime feature is a rock if “it cannot sustain human habitation or economic life on its own,” Jardeleza said.
Such mostly submerged features are entitled to only a 12 nm territorial sea and no EEZ. Examples of such are Bajo de Masinloc, also known as Panatag shoal or Scarborough shoal, which lies 120 nm off the coast of Zambales province.
The shoal is a submerged coral reef with a rocky protrusion that is three meters above the water during high tide. It cannot be classified as an island because it cannot sustain economic activity or humans on its own, Jardeleza said.
The third type of maritime features called “low tide elevation” are submerged rocks and reefs that are not visible above water. This type of maritime feature is not entitled to any territorial sea or EEZ.
Contested Island groups
There are two island groups, Paracel Islands and Spratlys Islands, and one shoal, Scarborough, in South China Sea/West Philippine Sea that are the subject of maritime disputes between several countries.
READ: Key points of arbitral tribunal’s verdict on PH-China dispute
The Paracel Islands is disputed by Vietnam and China only. The Philippines has no interest in it because it is far from the country’s EEZ.
Scarborough shoal off the coast of Zambales lies within the Philippines (EEZ) but has been exclusively under the control of the Chinese since the 2012 standoff.
The most controversial is the Spratly Group of Islands that is claimed by China, Philippines, Vietnam, Malaysia, Brunei and Taiwan.
Spratly Islands is composed of more than 140 maritime features of which only 40 are above water some of the time [and of that 40] only 20 are above water at high tide, according toJardeleza.
“The claim of the Philippines in the arbitration is that none of the features occupied or controlled by China is entitled to a 200 nm EEZ,” he said.
“You don’t have to be a rocket scientist, the [nine-dash line] claim violates UNCLOS. The most that China can claim should only be 200 nm outside of Hainan,” Jardeleza said.
Eight features under protest
The case submitted by the Philippines to the International Tribunal on the Law of the Sea (ITLOS) concerns eight maritime features that are currently under the control of China.
The first four are low tide elevations that are completely submerged: Mischief Reef, which is 130 nm from Palawan, Kennan Reef (180 nm), Gaven Reef (205 nm) and Subi Reef (230nm).
READ: China: We are the victims in dispute; won’t heed UN decision
“These are all below water at high tide. They’re not entitled to anything. No territorial sea, no EEZ. But all of these four are physically occupied by China,” Jardeleza said.
China has constructed concrete structures on the reefs including helicopter landing pads over the years since 1995 but that does not give them entitlements to the seas around it.
The other four are rocks or reefs that are, at most, entitled to only 12 nm. These are Scarborough shoal, 120 nm from Luzon, Johnson reef 180 (nm from Palawan), Cuarteron reef (240nm from Palawan) and Fiery Cross reef (255 nm from Palawan).
“The position of the Philippines is [China’s] nine-dash line is invalid. It violates UNCLOS. The four reefs that are below water all the time are entitled to no rights and the four are rocks which would only have 12 nautical miles,” Jardeleza said.
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