CHICAGO (JGL) – The United Nations Convention of the Laws of the Sea (UNCLOS) was described as “a monumental achievement of the international community, second only to the Charter of the UN” after its birth 34 years ago.
When UNCLOS was ready for signature on Dec. 10, 1982, 119 countries signed the treaty on the very first day of the convention, which lasted from Dec. 6-11. Its vision was to serve the world community’s interest in the peaceful settlement of disputes and the prevention of use of force in the settlement of disputes between States have been advanced by the mandatory system of dispute settlement in the Convention.
The convention was the first comprehensive treaty dealing with practically every aspect of the uses and resources of the seas and the oceans. It has successfully accommodated the competing interests of all nations.
The second theme of the convention, which emerged, is that the provisions of the convention were closely interrelated and forms an integral package.
It is not possible for a State to pick what it likes and to disregard what it does not like. It was also said that rights and obligations go hand in hand and it is not permissible to claim rights under the convention without being willing to shoulder the corresponding obligations.
That is why when the Permanent Court of Arbitrations (PCA) handed down its ruling in The Hague in The Netherlands last Tuesday (July 12) in favor of the Philippines against China, I was surprised that China would still protest the decision despite the assurance of Tommy T.B. Koh of Singapore, President of the Third United Nations Conference on the Law of the Sea, when he called UNCLOS as “A Constitution for the Oceans.”
But despite this milestone, the United States hesitated in ratifying the UNCLOS organized in Montego Bay, Jamaica three decades ago for fear that the treaty would erode some of the maritime territories of the U.S.
On the other hand, China, which claims to own South China Sea as far back as the “ancient times” readily signed the UNCLOS on Dec. 12, 1982 and ratified it in 1996.
When China signed up and ratified the UNCLOS, China did not realize that it would be the very same instrument that would take South China Sea from China’s grasp. Why?
Before UNCLOS, there were conflicting claims as to who owns what oceans.
In 1494, two years after Christopher Columbus’ first expedition to America, Pope Alexander VI met with representatives of two of the great maritime Powers of the day – Spain and Portugal – and neatly divided the Atlantic Ocean between them. A Papal Bull gave Spain everything west of the line the Pope drew down the Atlantic and Portugal everything east of it. On that basis, the Pacific and the Gulf of Mexico were acknowledged as Spain’s, while Portugal was given the South Atlantic and the Indian Ocean.
12-MILE TERRITORIAL SEA
By mid-twentieth century, a trend to a 12-mile territorial sea had gradually emerged throughout the world, with a great majority of nations claiming sovereignty out to that seaward limit. However, the major maritime and naval Powers clung to a three-mile limit on territorial seas, primarily because a 12-mile limit would effectively close off and place under national sovereignty more than 100 straits used for international navigation.
When UNCLOS was adopted in 1982, coastal States territorial were limited to 12 nautical miles (22 kilometers; 14 miles) from the baseline; an additional 12 nautical miles make up the contiguous zone; and an Exclusive Economic Zone (EEZ) is further extended from the edge of the territorial sea out to 200 nautical miles (370 kilometers; 230 miles); and a continental shelf that extends to the continental margin’s outer edge, or 200 nautical miles (370 km) from the coastal state’s baseline, whichever is greater or it may never exceed 350 nautical miles (650 kilometers; 400 miles) from the baseline.
So, when China signed and ratified UNCLOS, it agreed to abide by the limits of its territorial s to 12 nautical miles from the baseline, an additional 12 nautical miles for its contiguous zone, EEZ of 200 nautical miles and a continental shelf of 200 nautical miles, which may never exceed 350 nautical miles.
If China did not want its Nine-Dash-Line diminish, very simple – China could just as easily withdraw its ratification of UNCLOS, like the U.S., and enjoy “ownership” of the vast China Sea. South China Sea (or Philippine Western Sea) is about 1,400,000 sq. mi) or 3,500,000 square kilometers in area.
But it is now too late in the day for China “to unratify” the treaty because coastal States like the Philippines, Indonesia, Malaysia and Vietnam can now claim their territorial waters that extend to the continental shelf not to exceed 350 nautical miles (650 kilometers; 400 miles) from their baselines based on the PCA ruling on the Philippines.
I likened the creation of UNCLOS to the Land Reform Program implemented by President Marcos during martial law. The Land Reform Program caused the heart attacks and subsequent demise of numerous rich Filipino landlords, who owned vast tracts of farmlands that were later distributed to their tenants without warning. If Marcos had a Land Reform to subdivide the huge farmlands into small shares, UNCLOS is a “Sea Reform” of coastal States with huge oceans, like the United States, China, Canada and Russia. With the Philippines winning most of its claims before the PCA, it really does not matter if China would not accept its defeat. What matters is that world opinion is behind the Philippines.
If China goes offensive by imposing economic sanctions on the Philippines, the Philippines has nothing to worry about as it has the rest of the world behind her.
NO WISDOM IN GOING TO WAR WITH CHINA
There will never be wisdom in going to war with China. Not only will it be unnecessary, war will only bring miseries to the Filipinos, who can instead hold their chins up with pride with its moral victory in the Philippine Western Sea issues.
If the Philippines is forced to war with China, nobody will really help the Philippines. Not even the U.S. can help the Philippines despite the 1951 Mutual Defense Agreement and the Enhance Defense Cooperative Agreement. Why?
With economic and diplomatic and numerous interests that the United States has entered with China and many countries, there is a good chance that the hands of the U.S. would be tied.
Exhibit “A,” when Argentina tried to occupy Falkland Islands, which the South American country considers it owns in April 1982, a few months before UNCLOS was forged, Argentina sought the help of the U.S. after the United Kingdom retaliated. Argentina invoked the Rio Treaty of 1947, which provides that an armed attack against any American State shall be considered as an attack against all American States, including U.S. and Argentina.
But because the U.S. was also a signatory to the North Atlantic Treaty in 1949 that included UK and the U.S., the U.S. did not only abandon Argentina but the U.S. even helped UK defeat Argentina.
During the Falklands War, in total, 649 Argentine military personnel, 255 British military personnel, and three Falkland Islanders died.
In the case of China, the U.S. may not have a military alliance with China while the Philippines has one. But if China were to attack the Philippines, I am sure, as the sun will come out in the morning tomorrow that the U.S. will be estopped from helping the Philippines. Why?
Foreign investors hold the biggest share of the U.S. National Debt. China holds US$1-Trillion IOU’s of Uncle Sam. How can U.S repay its debt to China if they destroy each other?
So, if I were President Duterte, I would ask China what’s wrong with the decision handed down by the PCA? How should the arbitration be done differently? If China were the Philippines who won the case before PCA, will China celebrate, too?
But before Mr. Duterte holds a bilateral talk with China, he should congratulate outgoing President Noynoy Aquino and his Foreign Affairs officials led by Sec. Albert del Rosario and U.S. Ambassador Jose L. Cuisia, Jr. for taking the South China Sea issue up to the Arbitral Court when other similarly situated countries like Vietnam deferred to act. Let’s give credit where credit is due. (Contact columnist: jglariosa@hotmail.com)