Five years after the 2016 South China Sea Arbitral Award, there is renewed debate about how best to…
(This article was posted by author on his Facebook page on July 22, 2021)
The Chinese misinformation campaign about the SCS Arbitration Award received a boost recently, with a claim now circulating wildly that the SCS Arbitration "abolished" PD 1596 and thereby erased the Philippines' claim to the Kalayaan Island Group (KIG). Supposedly, the Award has eliminated the Philippines' sovereignty and possession of the KIG. This is FALSE.
(1) PH effectively occupied and controlled the KIG beginning in 1967-1968 starting with Pag-asa, Patag, and Lawak Island. On 10 July 1971, then-Pres. Marcos formally and publicly announced the Philippines' claim, citing effective occupation and control as basis, and demanding that Taiwan withdraw from Itu Aba after an incident involving warning shots fired against a boat carrying then-Congressman Ramon Mitra. Effective occupation and control was already established by that time, and continues up until this day on the islands/rocks of Pag-asa, Patag, Lawak, Kota, Panata, Likas, Parol, and Rizal. PH also established an outpost on Ayungin Shoal using the BRP Sierra Madre.
(2) Ten years after initial occupation, Marcos issued PD 1596 to consolidate PH title over the islands, constitute them as the Municipality of Kalayaan, and incorporate it into the Province of Palawan. PD 1596 is not the source of PH's title to the islands, it is evidence of the exercise of pre-existing sovereignty that flows from sovereign title based on effective occupation and control. Without pre-existing sovereignty, PD 1596 could not have been issued and implemented.
(3) The SCS Arbitration determined the maritime rights and entitlements of the PH and CN through the interpretation and application of UNCLOS. The issue of sovereignty over the islands and rocks, including the merits of the parties' claims thereto, was completely excluded from the case; it was totally and unquestionably beyond the jurisdiction of the Tribunal. The SCS Arbitration Award was without prejudice to the questions of sovereignty over the islands and rocks. The Tribunal made this very clear in both the Award on Jurisdiction and Admissibility and the Award on the Merits. As such the Award cannot by any means affect the status of sovereignty over the KIG.
(4) In general, the jurisdiction and competence of international tribunals cannot exceed that accorded to them by the parties, whether through a compromis (special agreement to arbitrate) or under the terms of a dispute settlement procedure in a multi-lateral treaty.They have no power over matters and questions not submitted to them for arbitration.The validity of PD 1596 was never put in issue in the SCS Arbitration, and the Tribunal did not have any jurisdiction to rule on the validity thereof. Therefore the Award cannot have any effect on the validity of PD 1596.
(5) PD 1596 remains valid and existing because the PH is a civil law country, where laws remain valid and effective until amended or revoked. (That's why our shipping law is still largely based on provisions of the Spanish Civil Code of 1886, and certain provisions of the Spanish Law of Waters of 1866 are still in effect.) No law has been passed by Congress to revoke PD 1596, much less abrogated PH sovereignty and jurisdiction over the KIG. Only the legislature, by legislative action, can invalidate and abrogate PD 1596 and extinguish all its effects. Not the judgment of an international tribunal, which cannot subordinate the sovereignty of the State.
(6) PD 1596 did not establish baselines. The "box" described by PD 1596 are not baselines, which are defined in UNCLOS as either the low-water line (Art 3), straight lines joining points on a deeply indented coastline, or where there is a fringe of islands along the coast in its immediate vicinity (Art 5), or straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago (Art 47). The "box" described by PD 1596 is an arbitrary polygon joining points above open water, not coastal or land features. Further, baselines are lines from which the breadth of the territorial sea is measured, and all lines on the landward side of the baseline are considered 'internal' waters. The PD 1596 "box" is not used as a starting point for measuring the breadth of the territorial sea, nor does it have a landward side within which internal waters are e separated from the territorial sea.
(7)PD 1596 is an assertion of sovereignty and jurisdiction over a defined area within which there are both land (islands and rocks above water at high tide) and waters. The "box" defines the area within which they may be found. As such, it can validly affect the land territories within its area of application. However, insofar as the waters inside the "box" are concerned, the assertion of sovereignty and jurisdiction is regulated by international law, including UNCLOS.
(8 ) As a result, the assertion of a claim of sovereignty over the islands and rocks within the "box" remain effective and continue in force, while its effects on the waters are limited to the 12 nm territorial seas around such islands/rocks. Beyond 12 nm, the status of the waters is determined not by PD 1596 but by UNCLOS. This is not unusual or surprising: the extent of coastal State powers over the sea have always been regulated by international law, not domestic law. This will be remedied and harmonized with the enactment of the PH Maritime Zone Act which has already gone thru 3 readings in both houses of Congress. The stage for this was set in 2009 with the enactment of RA 9522, s.2.
(9) Long before 2016, PD 1599 already amended PD 1596 by declaring the PH EEZ to extend from the baselines of the territorial sea. The waters around the KIG are therefore considered to be comprised of either EEZ measured from the baselines on the coast of Palawan, or high seas in areas where the portion of the "box" extend beyond 200 nm from such baselines, leaving only the territorial seas adjacent to the islands/rocks above water at high tide. This configuration was validated by the SCS Arbitration Award, especially when it ruled that none of the islands and rocks in this region were entitled to a 200 nm EEZ/CS.
(10) The purpose of this misinformation is apparently (a) to diminish the confidence and resolve of the AFP, PCG, PNP-MG and other government agencies in defending and protecting PH sovereignty and jurisdiction in the KIG by causing them to question why they should risk life and limb for a claim that supposedly no longer exists, (b) to convince government officials that PH sovereignty and possession of the KIG has been legally interrupted by its own action of initiating and winning the SCS Arbitration, and (c) to cause a kind of panic among policy-makers and decision-makers and thereby make them susceptible to suggestions that, while being ostensibly for the purpose of defending the PH claim, will in truth cause them to take precipitate actions that undermine the PH legal position. This is what information warfare is all about: to deceive the enemy into surrendering without a fight.
*Jay Batongbacal is the director of the University of the Philippines Institute of Maritime Affairs and Law of the Sea.