IN this edition of my column, I present the views of retired Philippine Coast Guard (PCG) Adm. Joel Garcia, former commandant of the PCG and former undersecretary of the National Coast Watch Council System under the Office of the President. He addressed some contentious and ongoing issues surrounding the dispute with China over the contested waters of the South China Sea (SCS) and the real score behind the 2016 arbitral award.

Contentions

Garcia says the Philippines should assert and enforce the 2016 arbitral award if it can. But how? Incidentally, our government, both the executive branch and Congress, has yet to define what is “atin” (ours).

According to him, since the arbitral award was promulgated on July 12, 2016, our government has not published an official map indicating our maritime zones’ geographical coordinates (latitude and longitude), such as our exclusive economic zone (EEZ), contiguous zone and continental shelf.

He contends that a published official map should indicate and enumerate the awards that declared the “high tide elevation” (HTE), rock territories and the “low tide elevation” (LTE). The rock territories should have their respective 12 nautical miles territorial sea (TS). Why is this important? Because the law enforcement regime inside the TS of these rocks is different from those in the EEZ. In the EEZ, one can only enforce fisheries law (if it conforms with the UN Convention on the Law of the Sea or Unclos); incidentally, Philippines fishery laws do not conform with environmental laws. He added that the surface of the EEZ is considered the high seas (Art 58 and 87 of Unclos), and any ships of foreign countries can navigate or even loiter there (but not to conduct marine scientific research, fish and build artificial islands). The US is invoking this in freedom of navigation: whether you stop sailing on the sea surface for as long as your engine is operating, and even you can freely conduct military exercises therein, and many more “frees.” Meanwhile, in the TS, one can enforce all domestic laws.

For everyone’s information, an HTE is a feature above water at high tide and can generate territorial seas, while an LTE is a feature that is submerged at high tide and only exposed at low tide. LTEs do not generate territorial seas if they are located beyond the territorial sea of another feature. Also, maritime zones do not give rise to territorial claims.

PH map

Garcia further contends that the Philippines had not enumerated its claimed rocks in an official map. Why not? According to him, the origin of our official claim of the KIG (Kalayaan Island Group) stemmed from Presidential Decree (PD) 1596, s. 1978 of the first President Marcos. Incidentally, this law is just a two-pager law and does not enumerate these “claimed islands” inside the polygon box. The law only states that this is the polygon box in the SCS, and our territory and internal waters are inside the box.

Fast-forward to the advent of Republic Act 9522, also known as the “Philippine Baselines Law,” which was enacted in 2009 as sustained by the Supreme Court as constitutional in 2011, which practically removed the PD 1596 polygon box, again without enumerating therein our claimed “islands.” The arbitral award has also exacerbated this inadvertence by declaring that the Philippines cannot also claim the whole KIG as a territory, like China’s “nine-dash line” (See para 573 and 574 of the arbitral award).

Garcia argues that Filipinos are made to believe by the media and by jingoists’ pseudo-international law and maritime security experts that these maritime areas belong to the Philippines without specifically explaining the big difference, technically and legally. They speak their usual rhetoric of rousing the emotional patriotism of gullible Filipinos. He says Vietnam and Malaysia do not recognize the arbitral award incidentally. That makes the issue more complicated. They are just watching on the sidelines while the Philippines and China are scratching each other. They are the winners in this dispute because their territorial claim exists at the end of the day; at the same time, they solidify their economies with China’s help. We Filipinos lose. Why? Because in international law, the territorial claim is superior to a mere maritime claim based on Unclos.

He added that Unclos is not the venue for determining territoriality or ownership. It’s the International Court of Justice. What complicates the matter is our co-claimants, five of them, which claim the said SCS area as their “territory,” while the Philippines is claiming the said area as hers, invoking Unclos and the arbitral award, meaning a mere “sovereign rights claim,” not territorial, appearing inferior to the territorial claims of other claimant states. This is because Unclos, particularly the arbitral award, has not provided the Philippines with territorial ownership of our claim, only sovereign rights to fish and extract hydrocarbon deposits in our EEZ and continental shelf, respectively.

Admiral Garcia asks how we can solve this dilemma. He says either we partially accept the arbitral award or abrogate it. Incidentally, there is no such thing as partial acceptance in international law. Hence, he said the Philippines should either accept or abrogate it, lock, stock and barrel.

Conclusion

Admiral Garcia concludes his contentions by asking how our law enforcers will determine our claimed territories when we don’t have a published map to reckon with. How will our enforcers determine the extent of our claimed maritime zones to assert our sovereign rights? Right now, they are sent to this disputed area and are ordered to defend what is ours without even intelligently knowing the location and extent of what is ours! Lawfare is comparable to warfare. We have to arm them with enough legal ammunition to fight for our rights, as the international community is watching us in this maritime theater of legal and territorial conflict. “We cannot invoke the ‘rule of law’ and international law unless we have complied with them to the letter and spirit. Otherwise, we are just mirroring what we have been accusing China of as a bully and as a violator of the law.”

Garcia further asserts that we have to fight for what is ours to the teeth, even sacrificing our lives for the sake of our dear motherland. But first things first, where is the published map? Without this, external forces will exploit the Philippines using our naivete. The silence of our Asean neighbors, especially our co-claimants, does not mean they recognize our claims. One should understand that the SCS area is disputed, not just by the Philippines and China, but by five other countries.

Indeed, to fight for what is truly ours is a commendable spirit of nationalism. Nevertheless, rousing and prompting Filipinos to fight for something wholly based on deception and misinformation is idiocy and a disservice to the Filipino people. We Filipinos must assert and fight our sovereignty and rightful claims, preserving our territorial integrity and core national interests. But in doing so, it should be based on facts and ground realities because doing otherwise based on deception and misinformation would be akin to fooling ourselves.

Source: The Manila Times
https://www.manilatimes.net/2024/06/29/opinion/columns/what-is-really-ours-in-the-disputed-scs/1953914

Prof. Anna Rosario Malindog-Uy

Prof. Anna Rosario Malindog-Uy is a Ph.D. Candidate at the Institute of South-South Cooperation and Development (ISSCAD), Peking University, Beijing, China. She is currently a director and the Vice President for External Affairs of the Asian Century Philippines Strategic Studies Institute (ACPSSI), a think tank based in Manila. She also serves as the political/geopolitical analyst of ACPSSI. Currently, she is a Senior Researcher of the South China Sea Probing Initiative (SCSPI) and a Senior Research Fellow of the Global Governance Institution (GGI). She is also the President of Techperformance Corp, an IT-based company in the Philippines. Prof. Anna Uy taught Political Science, International Relations, Development Studies, European Studies, Southeast Asia, and China Studies. She is a researcher-writer, academic, and consultant on a wide array of issues. She has worked as a consultant with the Asian Development Bank (ADB) and other local and international NGOs.