Expert: Chinese reclamation 'tampers with evidence' on Manila arbitration case

From InterAksyon (May 8): Expert: Chinese reclamation 'tampers with evidence' on Manila arbitration case



Reclamation activities by China in the West Philippine Sea. File photograph from AFP.

The massive reclamation activities of China in the West Philippine Sea has not affected the legal challenge launched by Manila in the Permanent Court of Arbitration in The Hague, Netherlands but it only "tampers with the evidence," an expert told the Senate on Thursday.

In his presentation before the Senate committee on national defense chaired by Senator Antonio Trillanes IV, Director Jay L. Batongbacal of University of the Philippines Institute of Maritime Affairs and Law of the Sea, said "there is little doubt that the China's reclamation activities in the South China Sea are among its direct responses to the legal challenges by Manila."

"While the legal status of the contested features as described and presented in the arbitration case are not affected, their physical alteration effectively "tampers with the evidence": the existence of the new islands will now cast doubts on whether the features were originally mere low-tide elevations or rock above at high tide," Batongbacal said.

"This makes future agreement over their nature and effect in delimitation even more difficult to reach," he added.

His three-page presentation is entitled Reclamation in the South China Sea: Legal Loopholes, Practical Impacts, which was submitted to the panel.

Batongbacal said that, for China, the artificial islands also address its own perception of weakness in the strategic situation at seas and attempt to guarantee against an adverse ruling.

"It aims to re-capture the high ground and pressure littoral states in the region to recognize that Beijing's claims cannot be easily dismissed, nor its interest denied," he said.

Batongbacal argued that there is no special rule in international law that specifically prohibits any State from undertaking reclamation at sea; as with any other maritime activity, its legitimacy must principally be reckoned from its locations vis-à-vis adjacent land territory.

"While it is undoubtedly within a State's sovereignty to reclaim land within the 12 nautical miles territorial sea, beyond that, it must be considered whether it falls within the relevant rights and jurisdictions of State expressly recognized in UNCLOS articles of the Exclusive Economic Zone and Continental Shelf," Batongbacal explained.

However, Batongbacal said that coastal States may undertake reclamation as long as they give due notice and give due regard to the rights of all other States under UNCLOS (United Nations Convention on the Law of the Sea) Article 60.3, 56.2 and 56.3.

Loopholes in Manila legal position

To a large extent, Batongbacal also said, China is taking advantage of loopholes in the Philippines' legal position.

"This is on account of our implicit assumption that all islands are individually entitled to only 12 nautical miles territorial seas, leaving only Palawan's 200 nautical miles EEZ/CS to reckon with in determining legal rights over Chinese-occupied features," Batongbacal said.

"It also exploits Manila's concession that some of the Chinese position are entitled at least to 12 nautical miles territorial sea zones," he added.

Batongbacal said, apart from the limitations of the Philippine case as formulated, China is also relying on its trump card in the dispute: the status and potential maritime zones of Itu Aba.

Itu Aba Island is one of the northern Spratly Islands, and, since 1955, has been claimed and occupied by Taiwan. Itu Aba lies in the northwestern part of the Tizard Bank, a large coral reef with several islands on it, like Namyit Island (Vietnam). The Taiwanese call it Taiping Island.

"If Itu Aba were to generate a full 200 nautical miles EEZ (unlikely though it may be), the median line between it and Palawan would encompass all of the Chinese-occupied features including Mischief Reef. This clearly requires maritime delimitation which is outside the scope of the arbitration case," Batongbacal said.

Batongbacal said that the legitimacy of China's latest activities are considered not in terms of reclamation per se, but in the context of pre-existing dispute.

"By these standards, China's action contravene higher standards of fairness and due regard for the rights of other States; these international obligations govern the conduct of States pending the resolution of their maritime disputes," he said.

"These abstract legalities also have long-term geopolitical impacts," he added.

Batongbacal said that while China may regain the strategic high ground in the near-term with its rapid reclamation, ultimately it will lose the ability to handle the disputes in the way it prefers.

"Any remaining trust and confidence not only in the Philippines but all other littoral States will erode, alienating its immediate maritime neighborhood and reducing the chances of equitable bilateral settlements in the future," Batongbacal said.

"It will also catch the closer attention of other States formerly content with staying aloof or sitting on the sidelines, giving them more reason to strengthen their political, economic, even military bonds with smaller states," he added.

"And the fact that the new islands also have significant security implications for international navigation, only highlights the shared interest of the international community at large, and therefore draws the focused attention of all external maritime powers," he said.

"The stakes are not only higher, but also more diverse," he concluded.

http://www.interaksyon.com/article/110202/expert-chinese-reclamation-tampers-with-evidence-on-manila-arbitration-case