Commentary South China Sea: Waters of Contention

Justice Carpio sounds alarm on latest Chinese seizure of PH territory

The disputed islands of South China Sea

While the public was engrossed with the scandal of how 605 kilos of shabu from China worth P6.5 billion slipped through the Bureau of Custom and entertained by the Bautista vs Bautista family feud with a cameo role by President Duterte, a chunk of Philippine territory was being taken over by China.

China occupied Mischief Reef in 1995, took control of Scarborough Shoal in 2012. This time it’s Sandy Cay, 2.5 nautical miles from Pagasa, the largest of the eight features occupied by the Philippines.

Senior Associate Justice Antonio T. Carpio has sounded the alarm on the presence of Chinese frigates in the area of Sandy Cay and laid out its implications:

1.Two Chinese frigates, one Chinese coast guard vessel and two Chinese maritime militia fishing boats are guarding Sandy Cay, which is about 2.5 NM from Pagasa, well within the 12 NM territorial sea of Pagasa.These Chinese ships are not exercising the right of innocent passage because this right requires continuous and expeditious passage without stopping or loitering.The Chinese ships are also not exercising freedom of navigation because this freedom does not apply to the territorial sea but only to the EEZ and the high seas.

2.Sandy Cay was extensively discussed in the final ruling of the arbitral tribunal dated 12 July 2016.Sandy Cay is located between Pagasa and Subi Reef, although much closer to Pagasa.Sandy Cay is a disappearing high-tide sandbar – it appears for a few months and then disappears, and then re-appears again either in the same place or in a nearby place.The disappearance is caused by storms which disperse the sand.The action of the waves reforms the sandbar after a few months and thus the sandbar re-appears again.The arbitral tribunal did not deem it necessary to decide whether Sandy Cay is a high-tide or low-tide elevation because there are low-tide elevation rocks in the Pagasa Reef between Pagasa and Subi Reef that could be used as baselines of Pagasa even without Sandy Cay.These rocks, as baselines, extend the territorial sea of Pagasa to include Subi Reef which is a low-tide elevation forming part of the continental shelf of the Philippines.

3.Apparently, because of China’s dredging in Subi Reef, pulverized corals drifted and gathered at Sandy Cay and made Sandy Cay permanently above water at high-tide.As a high-tide elevation, Sandy Cay is now land or territory capable of sovereign ownership with its own territorial sea and territorial airspace.Sandy Cay now cuts off the extension of Pagasa’s territorial sea to include Subi Reef.If China acquires sovereignty over Sandy Cay, it can now claim Subi Reef as part of the territorial sea of Sandy Cay, legitimizing China’s claim over Subi Reef and removing Subi Reef from the continental shelf of the Philippines. The Chinese ships have prevented a PhilippineBFAR vessel from approaching Sandy Cay.China obviously wants to physically possess and control Sandy Cay.

4.This means China is now virtually occupying a new geologic feature within the territorial sea of Pagasa, a Philippine territory, in clear violation of China’s supposed vow not to occupy any more islands in the Spratlys.This is worse than what happened in Scarborough Shoal.Sandy Cay is a newly-created island and could not have been owned by China even under its discredited historic nine-dashed line claim.Sandy Cay emerged within the territorial sea of a Philippine territory.If Sandy Cay becomes Chinese territory, it will reduce by a third or more Pagasa’s territorial sea. It will also prevent the Philippines from extending the territorial sea of Pagasa to include Subi Reef.By any yardstick, this is seizure of Philippine territory.

5.In short, Sandy Cay is a Philippine land territory that is being seized (to put it mildly), or being invaded (to put it frankly), by China.It is the constitutional duty of President Duterte, and DFA Secretary Cayetano, to defend and protect Philippine territory.Both have vowed to the Filipino people that they will not concede a single inch of Philippine territory to China.The very least that they could do now is to vigorously protest this invasion of Philippine territory by China.If both are courageous, they should send a Philippine navy ship to guard Sandy Cay, and if the Chinese navy ships attack the Philippine navy vessel, they should invoke the Phil-US Mutual Defense Treaty.

This comes after the expose last week of Rep. (Magdalo partylist) Gary Alejano on the presence of Chinese vessels near Pagasa (Thitu) island.

The Center for Strategic and International Studies-Asia Maritime Transparency Initiative confirmed Alejano’s report and analyzed that “One possible explanation for the flotilla’s sudden and provocative appearance is that Beijing wanted to dissuade Manila from planned construction on Thitu. The Philippine government has said it plans to spend about $32 million on upgrades including a beaching ramp, desalination facilities, and long-overdue repairs to the islet’s crumbling runway.”

We have askedreactions on the Carpio report from Foreign Affairs Secretary Alan Peter Cayetano and the Chinese Embassy in Manila. No statement as of today.