IN the Asia-Pacific region context, there are three major traditional security threats or flash points to maintaining sustainable peace and security. These are: a) the Korean Peninsula; b) the Taiwan Strait; and c) the South China Sea (SCS). The overlapping and complex territorial and maritime disputes in the SCS between the six claimant states — Brunei, Malaysia, the Philippines, Vietnam, China and Taiwan — are critical sources of the fragility of the strategic and security environment of the Southeast Asian region.
The SCS is one of the most in-demand waterways in the world. It is a disputed area involving multiple countries with multiple claims. The waters of the SCS are indeed the object of contention among claimant states with overlapping territorial and maritime sovereignty, and sovereign rights claims. Fundamentally, the claimant states struggle and compete over sovereignty with no straightforward and trouble-free legal remedy and antidote. Another point of contention among the claimant states relates to exclusive sovereign rights over abundant oil reserves, fish stock and marine resources. Likewise, the SCS is also considered important for strategic security reasons, commercial shipping and potential hydrocarbons.
Notwithstanding, efforts toward rapprochement on the SCS dispute are not as effective as they should be. Hence, the SCS seems destined to remain a regional flash point and prevailing strategic tension for conflict. Because of this, there’s a genuine apprehension that the SCS dispute, if not mitigated, managed and resolved amicably among claimant states, could inflame a war in Southeast Asia. This makes the SCS dispute a paramount peace and security concern and challenge that the Association of Southeast Asian Nations (Asean) faces.
Ayungin Shoal issue
Filipinos should contend with facts and realities if we want to settle the SCS dispute with China.
It is important to set the record straight again that the 2016 arbitral tribunal ruling did not denote the victory of sovereignty over the territorial and maritime claims of the Philippines in the disputed waters of the SCS. Similarly, the tribunal did not delimit (demarcate or set limits) any maritime boundaries between the Philippines and China in the SCS.
The United Nations Convention on the Law of the Sea (Unclos) does not apply to sovereignty disputes or disputes over how to delimit maritime zones. The resolution of these disputes is left to the parties concerned to resolve among themselves.
The arbitral award simply clarified the maritime entitlements of the Philippines in the disputed SCS, declared the nine-dash line of China as being without basis and acknowledged the damage to the marine ecosystem and resources caused by reclamations in the SCS. The nine-dash line per se is not even the sole basis of the People’s Republic of China (PRC) in its claims in the disputed SCS. One has to understand this well and probably study the matter.
As far as the Chinese are concerned, their claim in the SCS is based on historical rights. Most recently, during the Second Sino-Japanese War that coincided with World War 2, Japan invaded the whole SCS, including Hainan, Paracels, Spratlys and the Pratas islands. After World War 2, Japan formally surrendered the islands to the Republic of China (ROC) under the Treaty of Taipei. PROC defeated ROC in the Chinese civil war. When the United Nations recognized the PRC as the only legitimate government of China, under the One China policy, PROC became the successor-in-interest of the ROC under international law, specifically the UN Charter, as Taiwan became a province of China. China has always regarded the SCS as an archipelago or a single unit. Under customary international law, the requirements for sovereignty are actual occupation, effective administration and control, and, if necessary, defense of its possession. PROC is effectively enforcing its de jure and de facto possession of the archipelago. De jure sovereignty refers to the legal right to own the territory; de facto sovereignty refers to the factual ability to do so.
Likewise, the 2016 Permanent Court of Arbitration (PCA) ruling also concluded that Second Thomas Shoal is, or in its natural condition, was, exposed at low tide and submerged at high tide and, accordingly, has low-tide elevations that do not generate an entitlement to a territorial sea, exclusive economic zone (EEZ) or continental shelf.
However, Second Thomas Shoal (Ayungin Shoal) sits within 200 nautical miles of the Philippine coast and is, therefore, part of the EEZ and continental shelf of the Philippines. Thus, the Philippines has sovereign rights over it because it is part of its EEZ but does not have sovereignty over it. Sovereignty and sovereign rights are two different things.
According to Unclos, sovereignty bestows full rights or supreme authority on a country within its territorial waters, which stretch to 12 nautical miles. Sovereign rights in an EEZ, which are much further out to sea, “no longer concerns all of a state’s activities, but only some of them.”
Also, the arbitral tribunal declined to consider Ayungin Shoal or the Second Thomas Shoal because it was a military matter and thus beyond the purview or scope of Unclos.
The PCA did not hear the case bought by the Philippines against China. The PCA acted as a registry. An arbitral tribunal decided the case set up under Annex VII (7) of Unclos, in which China did not participate and did not recognize the arbitral tribunal’s ruling. Also, unlike the International Criminal Court, the PCA is not a UN organization.
Fighting for what belongs to the Philippines is undoubtedly an act of patriotism and nationalism. Nonetheless, in doing so, it should be based on facts and realities on the ground and not on Uncle Sam and its cohorts’ propaganda and lies because doing otherwise is akin to fooling ourselves. In pursuing claims over the disputed SCS, Filipinos should also think of how best to do it without endangering the country’s survival and placing it in a precarious situation that could cost lives. The Philippines should resolve its conflict of interests and differences in the SCS, not just with China but with the rest of the claimant states, through diplomacy and peaceful means. Diplomacy is also an exercise of sovereignty and a potent weapon in constructively engaging China and other claimant states.
Furthermore, politicizing and blowing the recent incident in the disputed SCS, particularly in the Ayungin Shoal or Second Thomas Shoal area, out of proportion is not at all helpful or wise. This leads nowhere. What is needed is to find a middle ground that both the Philippines and China could agree to resolve the issue peacefully and diplomatically.
In resolving conflict or dispute, both sides should listen to each other and consider both sides’ points of view and sensitivities. A zero-sum game as far as the disputed SCS is concerned being pushed forward by an external or third party with a huge influence in the Philippines will put the country in peril. Both sides need to be rational actors instead of being led by emotions. The Ayungin Shoal is a flash point waiting to erupt that might destabilize the peace and security of the Asean region if both sides will not listen to each other, will not pay attention to each side’s sensitivities, and if both sides will not settle this matter halfway or come up with a middle ground. I believe that when faced with a conflict or dispute, it is crucial for opposing parties to sincerely engage in discussion, negotiation and diplomatic talks, and resolve the issue amicably.
I know that resolving the territorial and maritime disputes over the SCS has a long way to go and will be an uphill battle. Likewise, the process of building consensus may prove to be difficult, but it is not impossible. In contrast, confrontation on issues surrounding the disputed waters of the SCS will undoubtedly be self-defeating and counterproductive for both sides and all regional countries.
Therefore, in the ever-changing, volatile and challenging geopolitical realities of the Asean region and the broader Asia-Pacific, it is indeed imperative to look for alternative viable and potential solutions and approaches to mitigate, manage and resolve the dispute in the SCS if the Asean region is to attain sustainable peace and security. Contemporary global and regional issues like the dispute in the contested waters of the SCS need varied, creative and alternative solutions vis-à-vis existing ones. Pluralism and different approaches to responses to territorial and maritime disputes are necessary, given the variability of types or forms and reference points of conflicts, disputes or wars and their causes.
Source: The Manila Times