Three UN conferences rejected historic rights to the sea

Three UN conferences rejected historic rights to the sea

IT may be that the issue of the sovereignty of the Spratly Islands, an issue over land, may not be resolved during our lifetime.

China keeps diverting attention away from the Philippines' sovereign rights and jurisdiction over the Ayungin Shoal and the Reed Bank. These are rights protecting the food and energy security of our people.

The Unclos arbitral tribunal ruled that Ayungin Shoal and the Reed Bank (Recto Bank) are part of the Philippines' exclusive economic zone (EEZ) and continental shelf. These are issues, not over land territory, but over maritime domain and the seabed and subsoil. The arbitral award is our title and our soft power.

China has argued that its claim to historic rights is valid because it predated the UN Convention on the Law of the Sea (Unclos), which the international community adopted later.

The First UN Conference of the Law of the Sea in 1958 rejected China's claim to historic rights because it exceeds the territorial sea of three miles recognized by customary international law. That China's claim antedated the conference is not the issue. What decides is that the conference was an international law-making conference and that it was attended by 86 states, making it one of the largest post-war conferences.

For the same reason, the conference did not accept the Philippines' contention that the Treaty of Paris conveyed sovereignty over the waters within the latitudes and longitudes described in the Treaty of Paris between Spain and the United States.

It may be recalled that this First UN Conference on the Law of the Sea adopted the following four conventions:

1. The Territorial Sea and Contiguous Zone

2. The High Seas

3. Fishing and Conservation of the Living Resources of the High Seas

4. The Continental Shelf.

The Convention on the High Seas declared in its Preamble that its provisions were generally declaratory of established principles of international law. The convention proceeded to define the high seas as "all parts of the sea not included in the territorial sea or in the internal waters of a State."

The Convention on the Territorial Sea and the Contiguous Zone was also predominantly a codification of existing customary international law, providing rules for the establishment of the baselines of the territorial sea. The convention, however, failed to provide the breadth of the territorial sea, leaving its breadth at the customary territorial sea limits of three nautical miles.

Two years later, the Second UN Conference on the Law of the Sea was held, which focused on only two issues: the breadth of the territorial sea and fishery limits. The Second Conference again failed to agree on the limits of the territorial sea. The conference saw a split between those favoring a 6 nautical mile territorial sea and those supporting a 12 nm territorial sea, leaving the breadth of the territorial sea at three miles in accordance with customary international law.

A significant factor in these conferences was the emergence of developing states as a significant grouping at international conferences. Another was the grouping of landlocked states which wanted access rights to the ocean.

Spirit of compromise and accommodation

The three UN Conferences on the Law of the Sea display the progressive development of international law, with the Third Conference adopting Unclos to serve as the constitution to settle all issues relating to the law of the sea.

Unclos introduced new concepts such as the archipelago principle, the exclusive economic zone, and the common heritage of mankind. All coastal states have the option of having an EEZ, while the common heritage of mankind, as the term implies, benefits all countries, including landlocked states, and ensures that developing countries have a share in the gains of advanced technologies.

The then-senator Arturo Tolentino, speaking at the conference in Jamaica, explained that the Philippines signed the convention because the convention accepted, as part of public international law, the archipelago principle, which the Philippines advanced as early as 1958.

The archipelago principle recognizes that the islands, waters and other natural features of an archipelagic State form an intrinsic geographical, economic and political entity. "No longer will the islands of an archipelago be regarded as separate units, each with its own individual maritime areas, and the waters between them as distinct from the land territory," he noted.

Second, the archipelago principle recognizes the sovereignty of the archipelagic states over their archipelagic waters, their air space, sea bed and subsoil, and their resources, Tolentino further explained.

Nevertheless, speaking in utmost candor, Tolentino said that the Philippines was not fully satisfied with the text of the convention. "During the sessions of the conference, my delegation had, on various occasions, explained the unique nature and configuration of our territorial sea and proposed that it be an exception to the 12-mile rule." (Underscoring mine.)

This notwithstanding, he said that the Philippines would sign the convention, as indeed the Philippines did, "impelled by a spirit of compromise and accommodation in the interest of ensuring the rule of law and international order in the seas and oceans of the world."

Senator Tolentino underscored the significance of the convention:

"The Convention, therefore, is a historic milestone in the progressive development of international law, a monumental achievement of cooperation and goodwill among nations. Its provisions — many of them introducing new concepts — will govern the seas and their resources for generations to come, even long after the individuals who participated in this Conference shall have been gone and forgotten. Any state acting outside or in defiance of the Convention would be doing so without legal basis for his action," he cautioned. (Underscoring ours.)

As the Philippines is under obligation to harmonize its laws with the provisions of Unclos, the Philippines passed Republic Act 9522, or the Philippine Archipelagic Baselines Law.

Its principal sponsor was no less than Sen. Miriam Defensor Santiago, another statesman and legal luminary. This law manifests the Philippine State's responsible observance of its pacta sunt servanda obligation under the convention.

The United States did not support the Philippines' contention at the conference that the unique nature and configuration of the Philippines' territorial sea justified that it be an exception to the 12-mile rule. The United States took the position in these conferences that the breadth of the territorial sea was 3 nautical miles, in accordance with customary international law, and later that the territorial sea should not exceed 12 nautical miles.

To be fair to the United States, the Philippines' 1935 Constitution only declares that: "The Philippines comprises all the territory ceded to the United States by the Treaty of Paris, together with all the islands embraced in the treaty concluded between the United States and Spain on 7 November 1900, etc." (Underscoring ours.) It is silent about the status of the waters enclosed within the latitudes and longitudes of the Treaty of Paris.

China needs to harmonize its laws

China has refused to pay compensation for the damage caused by the recent violent and unlawful actions of Chinese forces at Ayungin Shoal. Ayungin Shoal is part of our exclusive economic zone and continental shelf and is under Philippine jurisdiction.

Faced with the testaments of the First, Second and Third UN Conferences on the Law of the Sea, China needs to face reality. As a signatory and a party to the UN Convention on the Law of the Sea (Unclos), China is under obligation to harmonize its laws with the convention as the Philippines has done.

China, having associated itself with the Group of 77, should harmonize its laws with the convention, especially because "the set of rules of the convention was formulated by the combined will of the great majority of states, regardless of power or size, in an assembly where equality and freedom in the making of decisions prevailed as a guiding principle," Senator Tolentino pointed out. He described the Convention as a "triumph of the conscience of mankind in the field of international law."

Will China's friends in the Philippines keep defending China's narrative of historic rights despite the fact that three UN Conferences on the Law of the Sea rejected the claim to historic rights to the sea? They would have to be totally blind (to be kind and non-accusatorial about it) to keep on mouthing China's propaganda.

It should not be difficult for the People's Republic of China to show its goodwill and abandon a discredited doctrine that was enunciated by its rival, the Chiang Kai-Shek government. Otherwise, China's reputation will continue to suffer with its false narrative, and face exposure as a rogue state.

Ambassador Jaime S. Bautista (ret.) is the chairman of the Philippine Council For Foreign Relations and the president of the Philippine Ambassadors' Foundation Inc.

  • https://www.msn.com/en-ph/news/opinion/three-un-conferences-rejected-historic-rights-to-the-sea/ar-BB1pKxUc?ocid=00000000

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