PHL to UN: End China’s ‘Berlin Wall of the Sea’

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While President Aquino was marshaling global support in Paris for countries most at risk from environmental threats and climate change, the Philippine government—in closing arguments at The Hague—highlighted the damage being caused by China’s sea constructions to one of the most diverse marine environments in the world, asking the United Nations tribunal to restrain it from creating a virtual “Berlin Wall of the Sea,” according to a report sent to Palace reporters by Deputy Presidential Spokesman Abigail Valte from the Netherlands.

Summing up the Philippines’s position as the Permanent Court of Arbitration closed weeklong hearings on the merits of Manila’s case against Beijing over China’s “excessive” nine-dash-line claim in the West Philippine Sea (South China Sea), Foreign Secretary Albert F. del Rosario said “China’s island building not only undermines regional stability, but also  the rule of law. It is moreover inflicting massive environmental damage on the most diverse marine environment in the world.”

China, del Rosario pointed out, “has intentionally created one of the biggest emerging environmental disasters in the world.” Beyond this, he added, “the stakes are still
greater” than just the Philippines’s interest, or those of other claimants in the West Philippine Sea, 90 percent of which is being claimed by China under the dubious nine-dash line. “The Convention’s ‘Constitution for the Oceans’ is itself at risk,” said del Rosario, referring to the UN Convention on the Law of the Sea, or Unclos.

“No state, no matter how powerful, should be allowed to claim an entire sea as its own and to use force or the threat of force in asserting that claim. No state should be permitted to write and re-write the rules in order to justify its expansionist agenda. If that is allowed, the convention itself would be deemed useless.  Power will have prevailed over reason, and the rule of law would have been rendered meaningless,” del Rosario said.

The Philippine government’s legal team has made it “equally clear that there is no issue of overlapping entitlements beyond 12-mile [limit] in the South China Sea,” del Rosario said.

He recalled how, in the November 26 hearing, “Prof. Bernard Oxman made clear what the practical consequences of deciding that even a single feature in the Spratly Islands generates entitlement beyond 12 M would be. China regards its entitlements in the South China Sea as excluding those of the Philippines and of Vietnam, Malaysia, Indonesia and Brunei Darussalam, as well.”

“It has no regard for the entitlements of other states. China is also more than willing to use force and the threat of force to enforce its perceived entitlements, even where it has none.”

At the closing session of the hearings of the merits, del Rosario’s presentation was preceded by the final arguments made by Manila’s counsel, led by Paul Reichler, working closely with Philippine Solicitor General Florin Hilbay.

Del Rosario also alluded to, in his summation, the key arguments  made by Oxman and Andrew Loewenstein, two experts called in by Manila. Loewenstein earlier presented eight ancient maps, one dating back to the Ming Dynasty, which showed the territory it now insists on claiming was not in its own map. They sought to demolish China’s claim of historic title and rights.

“In our view,” said del Rosario in his summation remarks before the PCA, “the Tribunal’s jurisdiction could not be clearer with respect to declaring that China’s claim to ‘historic rights’ in the areas encompassed by the nine-dash line is inconsistent with Unclos.” He then recalled how Reichler, on the first day of the hearings on Merits on November 24, had shown “that the historic rights that China claims are very different from a claim to ‘historic title’ that might be precluded from jurisdiction under Article 298.”

Oxman and Loewenstein “showed that the regimes of the continental shelf and exclusive economic zone under Unclos, and even general international law, plainly exclude” China’s claim of “historic rights” within the nine-dash line, del Rosario added.

Though he is not a lawyer, del Rosario noted, “in my mind, when the convention says that the Philippines’s rights in its continental shelf exist ipso facto and ab initio, and do not depend on occupation, that means there is no room for China’s claim. And when the convention speaks of an ‘exclusive’ economic zone, I take exclusive to mean exclusive. That means it is ours, and what is ours is ours, not China’s.”

The November 25 presentation by Prof. Philippe Sands showed why the guidance of the UN court is  crucial, the Department of Foreign Affairs chief said. “With an assertiveness that is growing with every passing day, China is preventing us from carrying out even the most basic exploration and exploitation activities in areas where only the Philippines can possibly have rights.”

He said China, by its actions, violates two key commitments by signatories in the preamble to the UN Charter, which are “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained,” and “to promote social progress and better standards of life in larger freedom.” China and the Philippines are both among the 51 original signatories to the UN Charter.

Del Rosario explained his accusation that China fails on both counts: it fails, he said, to “respect the obligations arising from treaties, specifically Unclos,” and is also “interfering with the Philippines’s sovereign duty to promote the social progress of our people, and our efforts to achieve a better standard of life for all Filipinos.”

Besides the Filipinos, China’s unilateral actions, “and the atmosphere of intimidation they have created, are also trampling upon the rights and interests of the peoples of Southeast Asia and beyond,” del Rosario pointed out.

Its massive island-building campaign shows its utter disregard for the rights of other states, and for international law, he argued, and noted that China started the island building “a year after the Philippines initiated the arbitration,” underscoring the impunity. “It is intent on changing unilaterally the status quo in the region, imposing China’s illegal nine-dash line claim by fiat and presenting this Tribunal with a fait accompli.”


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