PHILIPPINES-CHINA

ARBITRATION DECISION
Salient Points

By: Atty. Rester John Nonato

HHSG, 5th TAS, AFPRESCOM
 1. WHAT IS SOVEREIGNTY?

Sovereignty is full and absolute control and authority within

a territory.

The territory of a country ends at its territorial waters, 12

nautical miles from the baseline. Likewise, the airspace,
bed and subsoil of the territorial waters are included in the
country’s territory. Over all those territory, a country has
sovereignty.

And in international relations, you can only have

sovereignty if other countries recognize said sovereignty.
Not automatic upon self declaration of sovereignty.
 2. DO WE HAVE SOVEREIGNTY IN OUR
EXCLUSIVE ECONOMIC ZONE?

Our exclusive economic zone is the entire 200 nautical

miles from the baseline.

According to international law, we only have sovereignty

over EEZ within the 12NM territorial waters.

After the 12 NM limit, we only have limited sovereign rights

and limited jurisdiction.
3. WHAT ARE THE SOVEREIGN
RIGHTS?
Sovereign rights are economic in nature. These are the
rights of the country to explore, exploit, conserve, and
manage the living and non-living natural resources inside
the EEZ.
The country also has sovereign rights over economic
exploitation and exploration of the EEZ such as activities
that relate to energy production from the water, currents, at
wind.
 4. WHAT ARE THE LIMITED
JURISDICTION?
• It is the power of a country to enforce and implement its
laws within an area of its responsibility.

• Jurisdiction over EEZ beyond 12 NM are limited to the

following:
- Installation and use of artificial islands, installations, and
structures
- marine scientific research
- protection and conservation and preservation of the
marine environment
5. WHAT ARE THE SCOPE OF OUR COUNTRY’S
EXCLUSIVE RIGHTS AT THE EEZ AND CAN WE
SHARE?

• Only non-living resources like oil.

• It is up to us to share this. It is not against our sovereign

rights to share the resources. It is also not against our
sovereign rights to decide not to share.
• 6. WHAT ABOUT LIVING RESOURCES?
• Very complicated.
• a) According to the UNCLOS, the coastal State like the Philippines, should
determine its “capacity to harvest the living resources” within its EEZ. If it has
no capacity to harvest the “entire allowable catch”, access should be given to
other countries over the “ surplus".
• b) On highly migratory fish, countries should coordinate with each other for
purposes of conservation and optimum utilisation, both inside and outside the
EEZ.
• c) Landlocked States within our region also has the right to exploit the surplus
of living resources within the EEZ
• d) Traditional fishing grounds.
• Although there’s nothing in UNCLOS that compels us to respect the traditional
fishing activities of other States in our waters, the international practice is to
respect traditional fishing activities (sharing po ang trend).

 
• Halimbawa:
- Ang India at Sri Lanka ni-recognize nila ang traditional fishing rights ng kanilang
mga mangingisda sa Palk Bay (1974)

• - Ang Japan, kahit nag-establish siya ng 200NM fishery zone, ni-recognize pa rin niya
ang traditional fishing rights ng mga mangingisda na galing sa China at South Korea
kahit sa fishery zone na iyan (1978)

• - Sa 1998 Eritrea vs. Yemen Arbitration Case sinabi ng Tribunal na even “sovereignty
is not inimical to, but rather entails, the perpetuation of the traditional fishing regime in
the region.” At dahil dyaan, kahit na ang sovereignty ng mga isla ay ibinigay sa
Yemen, sinabi ng Tribunal na dapat i-ensure niya ang “traditional fishing regime of
free access and enjoyment for the fishermen of both Eritrea and Yemen" and they
"shall be preserved for the benefit of the lives and the livelihoods of this poor and
industrious order of men.”
• - sa decision ng Tribunal, the Scarborough Shoal is declared as
traditional fishing grounds of both Filipino and Chinese fishermen. At
kahit one day mapatunayan na ang Pilipinas ay may sovereignty sa
Scarborough Shoal, hindi pwede paalisin ang mga Chinese
fishermen dahil traditional fishing grounds din nila yan. Remember
yung sinabi sa Eritrea vs Yemen? At syempre hindi rin pwedeng
gambalain ng mga Chinese ang pangingisda ng mga Pilipino

• The entire South China Sea actually are traditional fishing grounds
and ALL fishermen of all countries that surrounds it.

• So, it’s either we claim as our own or share and coordinate and
cooperate with other countries the common tradition with them.
• Further, with regards to the ecological crisis in the South
China Sea (dwindling fish stocks) this URGENTLY
requires cooperation between countries whether we like
it or not. The exploitation of fish in the sea should be
economically managed, and the new thinking now is
ecosystem-based fisheries management, and that
requires multilateral efforts because fishes and the
environment do not recognize any EEZ or territory.
• 7. CAN WE REMOVE CHINA FROM OUR EEZ?

• No. The Arbitral Tribunal did not compel China to pull

out. What the Tribunal rules was that they cannot hinder
and stop the fishing and oil exploration at Reed Bank (of
the company owned by Manny Pangilinan).

• And remember, the Philippines has no sovereignty over

its entire EEZ. That means, no power to exclude in its
most extreme form.
• According to US Supreme Court Justice Scalia: sovereignty is
inherently the power to exclude people who have no right to be
there
• Generally, the only activities that UNCLOS doesn't allow for other
countries in your EEZ are economic in nature (exploration and
exploitation of living and non-living resources); because it is your
country that has exclusive rights over it, specially on non-living
resources. Non-economic activities are not forbidden; and note the
principle on traditional fishing rights.

• They can be present there as long as they do not violate the other’s
rights. This is the reason why the military vessel issue of China at
the 2nd Thomas Shoal was a non-issue to the Arbitral Court even
though the court decided that the shoal na iyan ay nasa EEZ ng
Pilipinas. They can be there, hwag lang nilang pakikialaman ang
ginagawa ng mga mangingisda natin at ng exploration sa oil.
8. WHAT WILL HAPPEN TO THE ARTIFICIAL
ISLANDS OF CHINA in our EEZ?

• Although the Tribunal ruled that the Chinese made artificial islands
are a violation of the UNCLOS, nothing was said on what to do with it

• The Tribunal also did not compel China to give the artificially
reclaimed islands to the Philippines. The UNCINTRAL also did not
anticipate this situation so nothing was stated in the UNCINTRAL
about the consequence of building unauthorized artificial islands.

• Furthermore, UNCLOS only said that countries have jurisdiction about

establishments of artificial islands within their EEZ. It however does
not mean that the artificial islands, structures, etc are owned by said
country. UNCLOS only gave the country the power to regulate.
9. SO HOW CAN WE REMOVE CHINA FROM
THE ARTIFICIAL ISLANDS THAT THEY BUILT?

• 2 options. Negotiate with them or launch a war with

them. But one thing is for sure, do you think China will
voluntarily give the islands to the Philippines? No.

• If you are really concerned about those islands, the most

constructive way to deal with them is to talk to China
regarding how both of you can benefit from them.
Negotiate. Negotiate. Negotiate.
10. SO ITS JUST LIKE THAT?

• China has a legitimate interest on why they set up those

islands: security.

• Although the establishment of those artificial islands

within the EEZ of the Philippines is illegal because of
lack of permission from the Philippines, China has a
legitimate reason why they need to have a strong
foothold in the South China Sea. Legality and legitimacy
are not the same in international relations.
• Almost all of the trade traffic in the South China Sea are going to or
from China. If you are going to study Chinese history, you'll
understand the painful lessons China had to learn by not securing
the flow of trade to and from its shores. China has experienced its
most humiliating defeats from the Europeans through that sea. So
we cannot really remove China from that place because their
security would be at stake. If that trade gets obstructed, China’s
economy will be in peril. And you don’t want a big country like China
to fail because it will have negative repercussions in the entire
world, and it will be much worse than the Global Financial Crisis.
• Even the United States secures the flow of maritime trade going to
and coming from the US by deploying its navy and having naval
outposts. China is simply doing what any country that has an
economy with a global reach is doing.

• So recognize the legitimate interests of China and see how the

Philippines and China can work together in order for the Chinese
interests to be not inimical to the legitimate interests of our country.
And you will not know their legitimate interests and how we can
reconcile our interests with them if you are not going to talk to them.
• 11. ARE CHINA’S INTENTIONS EVIL?

• You can never know their intention if you are not going to talk to
them. If you don't talk to them and assume that their intentions are
bad, all your actions will be based on an illusion.

• Obviously, you can never fully know the intentions of another

country even by talking to them. The solution to this problem is
talking to them regularly. Eh yung syota mo nga hanggang ngayon
hindi mo ma-intindihan, eh isang bansang may complex history,
different culture, at language pa kaya? So kapit lang. Not talking to
them and not having a good relationship with them don't put you in a
better position.
12. ARE THE SPRATLYS OURS?

• The Arbitral Tribunal didn’t say anything about that.

13. SO WHAT WILL HAPPEN IN THE
SCARBOROUGH SHOAL?
• Both Filipino and Chinese fishermen are allowed to operate there. The
Arbitral Court didn’t award the Scarborough Shoal to the Philippines or to
China because the Tribunal has no authority to determine issues of
territorial sovereignty.

• Even assuming however that one day, a court would rule that either China
or the Philippines have sovereignty over that area, they still cannot ask the
fishermen to stay away from that area because those are traditional fishing
grounds
• That's why the decision said, mali ang China sa
paggambala sa mga mangingisda natin, pero hindi
nangangahulugan na mga Pilipinong mangingisda
lamang ang pwedeng mangisda doon. Both Chinese and
Filipino fishermen have the right to be there. In short,
walang swapangan.
• 14. SO ANG SOUTH CHINA SEA AY WEST PHILIPPINE SEA?

• That is what was said by the Aquino Administration. The Arbitral Tribunal doesn’t
refer to the sea as West Philippine Sea but as South China Sea.
• But while the decision is legally binding, there is no mechanism for enforcing
it,,Question is whether the International Community can pressure China to back off
and respect the Decision