Philippines looks to international court to press island claims
By ERIK SLAVIN | STARS AND STRIPES Published: March 24, 2014
YOKOSUKA NAVAL BASE, Japan — The Philippines is taking China to international court — and inviting U.S. troops into the country — in a bid to maintain its claims to islands in the South China Sea.
The court case, filed last year and soon to approach the tribunal’s version of opening arguments, comes after repeated standoffs between Chinese ships and those of the Philippines — a nation allied to the United States through a mutual defense treaty.
In nearly all of these cases, the islands, reefs and rocks in question are uninhabited and worth little themselves. However, they confer varying rights to the countries that own them to exploit the nearby natural resources, including fisheries, natural gas and undersea petroleum.
The court ruling could have great consequences beyond the Philippines’ borders.
China has disputes over territorial ownership with Vietnam, Malaysia, Brunei, Indonesia and autonomous Taiwan, which Beijing claims as its own. It also claims the Japanese-administered Senkaku islands in the East China Sea, which Chinese call the Diaoyutai.
The Philippines will submit a written argument to the international Permanent Court of Arbitration by March 30, Paul Reichler, the U.S.-based lead attorney handling the case, told Stars and Stripes. The extensive brief will argue that a Chinese map commonly known as the “9-dash line map,” which Beijing uses to assert control over about 90 percent of the South China Sea, violates international law.
China has said it will not participate in the tribunal, located in The Hague, and Reichler said Tuesday that he hasn’t seen any last-minute change of intentions. However, since both countries are signatories to the United Nations Convention on the Law of the Sea, the case can proceed without China’s presence.
It’s difficult to tell how much time it will take the five-member panel of international judges to rule on the case, Reichler said. Based on previous court rulings, China’s lack of involvement could speed things up.
“We believe [a ruling] will come before the end of 2015,” Reichler said.
Making the case
The tribunal can’t rule on the sovereignty of the hundreds of islands, reefs and rocks that compose the Spratly Islands and other groups in the South China Sea. But it could rule on whether five of the eight are land features, which carry no rights to resources. It could also rule that Scarborough Shoal, a site of showdowns between Chinese and Philippine ships, is defined as a rock under international law, which would limit China’s claims to any resources beyond 12 nautical miles of the shoal.
Security analysts recognize that even if China loses in court, it has the military might to do whatever it wants.
The Philippines is instead counting on any potential victory to represent a psychological blow, said Renato Cruz De Castro, professor of international studies at La Salle University in the Philippines.
“China will lose face,” De Castro said. “This is something the Chinese are very much afraid of. It would be an action deemed illegitimate by the international community.”
In more than 95 percent of cases, nations comply with international rulings because of the loss of reputation involved when they fail to do so, Reichler said.
The court will be able to review China’s declared positions on the 9-dash line map and its claim to historical discovery of the Spratly Islands, Paracel Islands and other disputed territories. Beijing’s position states that China discovered some of the islands in question up to 2,000 years ago and inhabited others more than 1,000 years ago.
The 9-dash map that includes the disputed islands has been used since 1947, before the communist regime’s victory in China’s civil war. However, China has long remained ambiguous about what the map means, or where it came from.
In a 2008 U.S. diplomatic cable published by WikiLeaks, the U.S. Embassy in Beijing reported that a senior Chinese government maritime law expert, Yin Wenqiang, “admitted” he was unaware of the historical basis for the nine dashes, according to Reuters.
In another 2008 cable, senior Chinese diplomat Zheng Zhenhua gave U.S. diplomats a written statement explaining China’s position.
“The dotted line of the South China Sea indicates the sovereignty of China over the islands in the South China Sea since ancient times and demonstrates the long-standing claims and jurisdiction practice over the waters of the South China Sea,” the statement said, according to Reuters.
China’s attempts to defend the area have grown increasingly aggressive since those diplomatic talks.
Earlier this month, Chinese ships blocked Philippine ships from resupplying marines stationed on a rusting WWII-era ship run aground near Second Thomas Shoal, an uninhabited island claimed by both countries that lies about 120 miles west of the Philippine island of Palawan.
A Philippine aircraft dropped food and water to the marines, a move that drew the consternation of Chinese officials.
“The Chinese government has firm determination and will in safeguarding national sovereignty, and we will never allow any form of occupation of the Ren’ai Reef,” Chinese Foreign Ministry spokesman Hong Lei told reporters March 17, using the Chinese name for the shoal. “China watches closely and is highly vigilant on further possible provocations in the South China Sea by the Philippines, and it must bear all the consequences arising therefrom.”
The U.S. response
United States officials have supported the Philippines in recent months, both on a legal and a military level.
Many of China’s claims, including its attempts to regulate fisheries in waters most countries consider international, clash with the U.S. vow to guarantee freedom of navigation in the sea.
In February, Assistant Secretary of State Daniel Russel told Congress that China’s aggressive behavior “reflects an incremental effort by China to assert control over the area contained in the so-called ‘9-dash line,’ despite the objections of its neighbors and despite the lack of any explanation or apparent basis under international law regarding the scope of the claim itself.”
Russel added that “we fully support the right of claimants to exercise rights they may have to avail themselves of peaceful dispute settlement mechanisms” — going on to note the Philippines’ court claim as an example.
On March 14, United States support for the Philippines went a step further. Pio Lorenzo Batino, Philippine defense undersecretary, told reporters in Washington that the deal to allow shared use of Philippine military bases with U.S. forces was about 80 percent done, according to Reuters.
“The proposed agreement will allow the sharing of defined areas within certain AFP (Armed Forces of the Philippines) facilities with elements of the U.S. military,” Batino said.
Officials declined to go into further details on the future military arrangements.
The U.S. has also increased military engagements and supplies in recent years. The country’s flagship, along with its second-most-capable vessel, are decommissioned U.S. Coast Guard cutters.
Even those ships can’t compete with China’s rapidly modernizing military, which now ranks a distant second in spending compared to the United States. However, the country’s recent shift from internal security to external defense spending, coupled with a stronger agreement with the U.S., sends Beijing a message, De Castro said.
“It would make the Chinese think twice, that at least we could put up a fight,” De Castro said. “But I think it’s a signal also directly to Washington, D.C. We will not appease China, so this where the value of the alliance comes in.”