Thursday, April 24, 2014

Concerning the maritime dispute of the Philippines and China - Interview with Prof. JOSE MARIA SISON

China's 9-dash line claim of indisputable sovereignty over 90% of the South China Sea violates the UN Convention on the Law of the Sea and robs the Philippines of 80% of its Exclusive Economic Zone and 100% of its Extended Continental Shelf.
Interview with Prof. JOSE MARIA SISON
Founding Chairman, Communist Party of the Philippines
Liberation International
23 April 2014

Concerning the maritime dispute of the Philippines and China

1. Why do you support the Philippine reactionary state in invoking the UN Convention on the Law of the Sea (UNCLOS) and pursuing an arbitration case against China before the International Tribunal for the Law of the Sea (ITLOS), particularly in the Arbitral Tribunal based in The Hague?
Jose Maria Sison (JMS): What I support is not so much the Philippine reactionary state as the invocation of the UNCLOS and upholding the sovereign rights of the Philippines and the Filipino people over the 200-nautical mile exclusive economic zone (EEZ) as well as the extended continental shelf (ECS) in another 150 nautical miles from the outer limits of the EEZ. Thus, I have urged the Philippine government to act promptly on the matter.
It so happens that the Philippine state has the legal personality to pursue the case before the ITLOS. It is fine that it has filed a case against China under UNCLOS in January 2013 and the ITLOS has referred the case for hearing by one of its four mechanisms, the Arbitral Tribunal based in The Hague. On March 30, 2014 the Philippine Department of Foreign Affairs submitted its Memorial to the Arbitral Tribunal that is hearing the case.
China claims “indisputable sovereignty” over 90 per cent of the South China under the so-called 9-dash line map in violation of the UNCLOS. It has hypocritically called for peaceful negotiations and consultations over what it asserts as non-negotiable issue and has also called for shelving disputes and going into joint development projects in the EEZ and ECS of the Philippines. For quite sometime, the consistent point of China has been to maneuver and paralyze the Philippines into a position of acquiescence to the false claim of China and prevent a legal case from being brought before the ITLOS under the UNCLOS.
If China is allowed to violate the UNCLOS and claim 90 percent of the South China Sea under the so-called 9-dash line map, the Philippines would suffer the loss of 80 per cent of its EEZ in the West Philippine Sea, including the Reed Bank and even Malampaya. It would also lose all its ECS. We have practically lost Mischief Reef and the Scarborough Shoal to what is veritably Chinese aggression.
Irrespective of the political and social character of the present government occupying the seat of the Philippines in the community of states, the Filipino people and all patriotic and progressive forces must uphold the national sovereignty and safeguard the territorial integrity of the Philippines, including sovereignty over the territorial sea and the internal waters and sovereign rights over the EEZ and ECS. These are fundamental points of principle in the Program of the People's Democratic Revolution.
2. The arbitration case is supposed to involve a maritime dispute rather than a territorial dispute. Why a maritime dispute? What are the implications and consequences?
JMS: It is a given fact that the Philippines and China have their sovereign rights over their respective EEZs under the UNCLOS beyond their respective 12-mile territorial seas from their respective baselines. The EEZs, including the ECSs, of both countries do not overlap and are far apart from each other by hundreds of nautical miles. And the UNCLOS has extinguished the so-called historical rights of China over the islets, reefs and shoals outside of its EEZ and ECS. Moreover, these so-called historical rights beyond Hainan island are false and baseless even in the time before the UNCLOS.
The Philippine case brought before the ITLOS involves a maritime dispute. It is not about a territorial dispute or a case of maritime delineation, which is not governed by the UNCLOS and is not within the jurisdiction of the ITLOS. What the Philippines is simply after in the legal case is a court ruling that there are no overlapping EECs and ECSs between the Philippines and China and that China has no reason whatsoever to prevent or interfere with the Philippines enjoying its sovereign exclusive rights over its own EEZ and ECS.
There is no territorial dispute whatsoever between the Philippines and China, involving issues of sovereignty or ownership over land territory, such as islands or other elevations above water at high tide. Rocks or reefs that are below water at high tide cannot be considered land that is subject to territorial dispute. They are properly subject to maritime dispute that is governed by the UNCLOS.
Under the UNCLOS, maritime disputes among the signatory states like the Philippines and China are subject to compulsory arbitration. In contrast, territorial disputes can be the subject of arbitration only with the consent of each disputant state.
According to the Supreme Court Justice Antonio Carpio who has done scholarly legal work on the matter, the arbitration case of the Philippines against China is solely a maritime dispute. It does not involve any territorial dispute. The Philippines asks the tribunal whether China's 9-dash lines can negate the EEZ that is guaranteed to the Philippines under UNCLOS. The aggrieved state also asks the tribunal whether rocks above water at high tide, like Scarborough Shoal, generate a 200-nautical mile EEZ or only a 12-nautical mile territorial sea. The Philippines further asks the tribunal whether China can appropriate low-tide elevations (LTEs), like Mischief Reef and Subi Reef, within the Philippines’ EEZ.
3. The whole world knows how China arrogantly claims almost the entire South China Sea as being under its “indisputable sovereignty”, how in this regard it has expressed contempt towards any judicial process and how it has engaged in bullying and in aggressive occupation of islets and rocks within the EEZ of the Philippines. But in legal terms, how does China react to the arbitration case filed by the Philippines? And how does the Philippines answer?
JMS: China is determined to avoid participation in the proceedings of the Arbitral Tribunal. It argues that the Arbitral Tribunal has no jurisdiction over the case submitted by the Philippines, supposedly for two reasons: first, China can opt out of compulsory arbitration because the dispute involves maritime boundary delimitation arising from overlapping EEZs of the Philippines and China, requiring the consent of both to litigate; and second, China's 9-dash line claim is a historical right that predates UNCLOS and cannot be invalidated by UNCLOS.
The answer of the Philippines is that the waters within China's 9-dash lines do not constitute an EEZ because said lines are not drawn from baselines along the coast of China or any of its islands. China's 9-dash lines do not comply with the UNCLOS for drawing EEZs. There is in fact no EEZ of China that overlaps with the Philippines' EEZ. Relative to the Scarborough area, China's baselines are either along the coast of Hainan Island, which is 580 NM from Luzon, or along the coast of mainland China, which is 485 NM miles from the Zambales coastline in Luzon facing Scarborough Shoal. Even the Chinese-held Paracels are 480 miles from Luzon.
Low-tide elevations (LTEs) in the Spratlys within the 200-nautical mile EEZ of the Philippines, like Mischief Reef and Subi Reef, are subject to the sovereign rights of the Philippines. Under the UNCLOS, only the Philippines can construct structures here. China has no right whatsoever to occupy and construct structures on any of the LTEs in the EEZ of the Philippines.
4. How does the Philippines debunk China's invocation of historical rights to claim almost the entirety of the South China Sea and even certain habitable islands (as in the Paracels) previously conceded to Vietnam at the 1951 San Francisco Peace Conference and nonhabitable islets, shoals and reefs that are within the EEZ of the Philippines and other countries?
JMS: The prevalent view, if not almost unanimous, among non-Chinese scholars on the law of the sea is that China's “historical right” to the waters within the 9-dash lines in the South China Sea is completely without basis under international law. First of all, the UNCLOS extinguished all historical rights of other states within the EEZ of a coastal state. Thus, the term “exclusive” is used to denote the sovereign rights of a coastal state over its exclusive economic zone. Fishing rights that people from Hainan, Taiwan and Japan previously enjoyed in what would become the Philippine EEZ were automatically terminated upon the effectivity of UNCLOS. The UNCLOS does not allow any state to invoke historical rights in order to claim the EEZs or ECSs of other coastal states.
The historical records show that never did any state claim, beyond the 12-nautical mile territorial sea, that the South China Sea is its internal waters or territorial sea, until 1947 when China domestically released its 9-dash line map and 2009 when China officially notified the world of its 9-dash line claim and submitted the 9-dash line map to the United Nations Secretary General. No country other than China recognizes the validity and effectivity of China’s 9-dash line claim. China has never effectively enforced its claim between 1947 and 1994 when UNCLOS took effect, and even thereafter. Outside of the valid territorial sea of China, ships have freely crossed the South China Sea and planes have flown over it, without having to get permission from China.
The waters enclosed within China's 9-dash lines cannot form part of China’s EEZ or ECS because they are beyond the limits of China’s EEZ and ECS as drawn from China’s baselines in accordance with UNCLOS. Such waters donot fall under any of the maritime zones -- internal waters, territorial sea, EEZ and ECS -- which are recognized by international law or UNCLOS. So far, China has not explained to the world what kind of maritime regime the 9-dash line waters fall under. It simply keeps on harping ad nauseam that it has “indisputable sovereignty” over such waters by "historical right".
5. You have made fun of China's “historical right” to having “indisputable sovereignty” over the entire South China Sea by comparing it with the irridentist ambitions of Mussolini to reclaim the territories that previously belonged to the ancient Roman empire. Don't you think that it is useful to examine and test the factual basis of the “historical right” invoked and asserted by China in order to debunk its arrogant claim to “indisputable sovereignty” over the South China Sea?
JMS: Indeed, it is useful to examine and test the factual basis of China's claim of sovereignty over the South China Sea as a matter of “historical right”. And in the process, you can have a few laughs. For instance, China claims that Scarborough Shoal, or Huangyan Island to the Chinese, is the Nanhai island that the 13th century Chinese astronomer-engineer-mathematician Guo Shoujing allegedly visited in 1279, upon the order of Kublai Khan, the first emperor of the Yuan Dynasty, to conduct a survey of the Four Seas to update the Sung Dynasty calendar system.
But in the document entitled “China’s Sovereignty Over Xisha and Zhongsa Islands Is Indisputable” dated January 30, 1980, China’s Ministry of Foreign Affairs officially declared that the Nanhai island that Guo Shoujing visited in 1279 was in Xisha or what is internationally called the Paracels, a group of islands more than 380 nautical miles from Scarborough Shoal. China has thus debunked itself and is estopped from claiming the shoal. The Chinese claim to the shoal becomes hilarious when the purported historical account depicts Guo Shoujing going ashore on the small rock and building on it a massive observatory with a height of 12.6 meters.
The Murillo map is the oldest map in the world showing Scarborough Shoal as part of the Philippine archipelago. It was first issued in 1734 during the Spanish colonial period. It is entitled Mapa de las Islas Filipinas. It was drawn up by the Spanish priest Fr. Pedro Murillo. It clearly shows Scarborough Shoal, then called Panacot, in the vicinity of Zambales. Filipino fishermen called the shoal Panacot and often went to it for fishing.
One more absurd and funny claim of China is that the southernmost territory in the South China Sea is James Shoal, 50 nautical miles from the coast of Bintulu, Sarawak, East Malaysia. This shoal is a fully submerged reef, 22 meters under water. It is entirely within Malaysia's EEZ and is more than 950 nautical miles from China. It is obvious that Chinese leaders and cartographers claimed James Shoal as China’s southernmost territory without anyone of them seeing it. But once more the Chinese narrative goes hilarious as it speaks of Chinese going ashore to “visit” James Shoal. James Shoal is unique for being the only national border in the world that is fully under the sea and too far beyond the territorial sea of the claimant state.
Many errors crept into the map of South China Sea made by the “Inspection Committee for Land and Water Maps” created by the Republic of China in 1933. The committee merely copied the existing British maps and changed the names of the islands by either translating them or transliterating them to make them sound Chinese. For example, Antelope Reef was translated as Lingyang and Spratly Island was transliterated as Sipulateli. The Chinese map even copied 20 errors in the British map (which misrepresented non-islands as islands) which the British map makers would later correct.
All Chinese official maps during the Yuan, Ming and Ching Dynasties acknowledged Hainan island as the southernmost border of China. These Chinese dynasty maps never mentioned the Paracels, the Spratlys, Scarborough Shoal, the 9-dash lines or the U-shaped lines. The Chinese Government officially declared to the world in 1932 that the “southernmost part of Chinese territory” or border was Hainan Island. In the 1951 San Francisco Peace Conference, the Soviet Union demanded on behalf of China that the Paracels and Spratlys be turned over to China but the demand was rejected by a vote of 48 states to 3 states.
The Chinese should not mislead themselves into thinking that they own the entire South China Sea just because the European mariners and cartographers gave it such name. The Chinese do not own it as much as the Indians do not own the entire Indian Ocean. Long before the Chinese imperial admiral Zeng He undertook his famous sea voyages from 1405 to 1433 A.D., the prehistoric inhabitants of the Philippines had fished in the waters, now within the Philippine EEZ, and the Filipino traders had become masters of the South China Sea in the course of trading with China, Indochina and their brother Malays in what are now Indonesia, Kalimantan and Malaysia.
6. A Chinese professor from the University of Beijing wrote recently that China has the right to own islands, islets, reefs and shoals even within the EEZ of the Philippines, as in the case of British isles being dependencies of Britain even as they are geographically far closer to France?
JMS: Such scholars conveniently do not mention the fact that the British isles referred to have long been inhabited by the British and have been recognized as British dependencies by nearby states and to my knowledge all other countries. They might as well mention the colonial possessions of Britain in far flung areas in the history of British colonialism and imperialism. In an effort to hold on to the Malvinas or what they they call the Falklands, the British have combined the aggressive use of imperialist force and the deployment of British settlers.
7. Is it possible and mutually beneficial for the Philippines and China to engage in joint development projects within the exclusive economic zone of the Philippines? What are now the obstacles? Why is it that China has manifested aggressive behavior?
JMS: It is possible and mutually beneficial if first of all both China and the Philippines simultaneously recognize their sovereign rights over their respective EEZs and ECSs and then immediately agree on joint development projects. It is preposterous if such joint development is subject to the precondition of recognizing China's “indisputable sovereignty” under its 9-dash line claim over almost the entire South China Sea.
Surrendering to such precondition would mean the Philippines giving away and losing automatically at least 80 per cent of the EEZ and 100 per cent ECS and probably even losing the right to free and safe navigation in the South China Sea. Not one of the claimant states to the Spratlys has accepted China’s joint development offer because of the precondition of recognizing China’s imperial claims of “indisputable sovereignty” over the South China Sea.
The Philippines and the Filipino people cannot take lightly or ignore the aggressive actions already taken by China in connection with its greedy claim of owning almost the entire South China Sea. Through aggressive actions, China has grabbed the Mischief Reef in 1995 and Scarborouigh Shoal in 2012. Earlier it grabbed from Vietnam the Paracels in 1974 and Fiery Reef Cross in 1988. By all indications, China is poised to force out the handful of Philippine marines aboard the shipwrecked Philippine navy boat on Ayungin Reef, a low tide elevation in the EEZ of the Philippines in the Spratlys. Armed aggression violates the UN Charter.
The Filipino people should understand that China since the death of Mao has become a capitalist country. As the neoliberal partner of US imperialism, it has prominently promoted big comprador operations such as the proliferation of export-oriented sweatshops, privatization of the rural industries built under Mao and the wanton use of finance capital to generate a private construction boom and consumerism among less than 10 per cent of the population.
It converted proletarian state power into a bourgeois nationalist power and indeed developed further its industrial base, including its production of advanced weapons. Although it still has a relatively low per capita GDP, China is already a big capitalist power with the economic features of a modern imperialist power and is on the verge of a definitive kind of military aggression.
8. In legal terms, what are the prospects of the arbitration case filed by the Philippines against China? What are the prospects in political and economic terms? How do you take into account the further entrenchment of US imperialism in the Philippines and the collusion and contention between the US and China?
JMS: The Philippines has a good chance of winning the case. The approach in the case is excellent. It is a maritime dispute and not a territorial dispute. It attacks the outrageous claim of “indisputable sovereignty” over the South China Sea. To be benefited is not only the Philippines but also the other state claimants to EEZs and ECSs under the UNCLOS and all the people of the world who are interested in free and safe navigation over the South China Sea by ship and by airplane.
I estimate that the judges will make a ruling that yields the benefits that I have just mentioned and that keeps the South China Sea from becoming a hotbed of aggression based on the overreaching claims of China or the US. China insists that it can defy compulsory arbitration by arguing out of court that the case filed by the Philippines with the ITLOS is not a maritime dispute but territorial dispute or dispute over maritime delineation which are not governed by the UNCLOS and are outside the jurisdiction of the UNCLOS.
It cannot escape from compulsory arbitration because the tribunal can consider and rule on the pleading of the Philippines and weigh the arguments given by China for not participating in the process. If the ruling of the Arbitral Tribunal is not favorable to it, China will probably behave better in the face of the international community or will proceed on a path of imperialist aggression.
A decision favorable to the Philippines can be a good basis for pro-actively offering cooperation to China and for telling the US to stop pretending as the protector of the Philippines against China and to cease its unbridled plundering and further military entrenchment in the Philippines. Unlike the US, China is a country that has never carried out a fullscale aggression to conquer the Philippines. It has the capacity and probable willingness to help the Philippines achieve national industrialization through equitable and friendly economic and trade relations.
However, the Philippines and the Filipino people must be always vigilant to the relationship of collusion and contention between the US and China in a world still suffering from imperialism, neocolonialism and the revisionist betrayal of socialism and the revolutionary forces of the people are just beginning to reinvigorate themselves and resurge.
9. What ought to be the long term view of the Filipino people and the patriotic and progressive forces in upholding national sovereignty, territorial integrity and sovereign rights over the exclusive economic zone and the extended continental shelf?
JMS: The Philippines should be independent of the US, China and other capitalist powers. To have their own strength and gain the respect, solidarity and cooperation of other peoples, the Filipino people should win the new democratic revolution and proceed to the socialist revolution. They must attain national sovereignty and democracy for the toiling masses of workers and peasants, realize social justice, carry out land reform and national industrialization, promote a patriotic and progressive culture and develop cooperative relations with all countries for the sake of peace and development.
10. What would you suggest as study material for understanding the dispute of the Philippines and China in connection with the latter's claim of indisputable sovereignty over the entire South China Sea and even the West Philippine Sea, where the Philippines has its exclusive economic zone (EEZ) and extended continental shelf (ECS)?
JMS: The most studious should read and study the 4000-page memorial of the Philippines in its arbitration case against China, submitted to The Hague-based Arbitral Tribunal.
There are plenty of scholarly legal works on the issue by Filipino and foreign experts on international law and the law of the sea. But for general readers, I suggest as the most concise and yet comprehensive and profound material is the speech of Supreme Court Senior Justice Antonio Carpio, “ What's at Stake in Our Case Vs. China,” delivered before the Philippines Women's Judges Association on March 14, 2014.

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