Last of 2 parts
IT is time to forge a new chapter in Philippine-China relations. We must banish from our two peoples’ minds the fears and suspicions that have prevented them from becoming the closest and best of neighbors. The time has come for the two countries to negotiate and conclude a Treaty of Friendship, Cooperation and Good Neighborliness, or what the French traditionally call traite d’amitie, de cooperation et de bon voisinage.
Such a document should replace the 1975 joint communique. The latter has served as well, but it must now be updated and upgraded to meet the needs of the times. Indeed, the absence of an explicit, legally binding and enforceable instrument lies at the root of the instability and in-security attending our bilateral ties.
The proposed treaty has to be a comprehensive document. It should contain all the good elements in the joint communique and all the various aspects of bilateral relations. These should include the political, economic, trade, investments, tourism, air services, maritime, shipping, cultural, scientific, technological, agricultural, fisheries, forestry, environmental protection, energy, mining, offshore minerals and petroleum exploration, and industrial joint ventures.
Above all, it should provide for a mechanism for the pacific settlement of disputes in accordance with the UN Charter as well as customary international law and treaty law. For this purpose, the two governments must now commit to begin negotiations on such a treaty.
So that bilateral cooperation will move forward even while the proposed treaty is being negotiated, separate agreements or memorandums of understanding should be concluded in various fields, including, but not limited to, cultural, scientific, technological, trade, investments, tourism, agriculture, fisheries, forestry, and industrial joint ventures. These should be implemented without delay.
In a meeting with UN Secretary-General Kofi Annan at the UN Headquarters in New York in 1999, President Estrada officially requested Mr. Annan to lend his good offices to assist the Philippines in its sincere quest for a peaceful, legal and judicially viable solution to the Kalayaan dispute, and the overlapping exclusive economic zones (EEZ) in the South China Sea.
Under Article 57 of the Unclos, the EEZ “shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.”
Article 60 goes on to provide that “in the exclusive economic zone, the coastal state shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of artificial islands, installations and structures [for marine research and other purposes], and installations and structures which may interfere with the exercise of the rights of the coastal state in the zone.”
Like the EEZ, the continental shelf of a coastal state is governed by the 200-nautical-mile limit. As Article 76 puts it, the continental shelf “comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.”
In signing the 1982 Unclos, the Philippines’ chief delegate, then Minister of State for Foreign Affairs Arturo M. Tolentino invoked Article 310 of the Convention to declare, among other things, as follows:
“That such signing shall not in any manner affect the sovereign rights of the Philippines as successor of the US under and arising out of the Treaty of Paris between Spain and the US of Dec. 10, 1898, and the Treaty of Washington between the US and Great Britain of Jan. 2, 1930;
"That such signing shall not diminish or in any manner affect the rights and obligations of the contracting parties under the Mutual Defense Treaty between the Philippines and the US of Aug. 30, 1951, and its related interpretative instrument; nor those under any other pertinent bilateral or multilateral treaty or agreement to which the Philippines is a party;
"That such signing shall not in any manner impair or prejudice the sovereignty of the Philippines over any territory over which it exercises sovereign authority, such as the Kalayaan islands, and the waters appurtenant thereto.”
China asserts absolute sovereignty over all of the islands, islets, reefs and shoals in the whole South China Sea, including Kalayaan, which the Philippines considers its own and lies well beyond China’s 200-nautical-mile EEZ. By building structures in Mischief Reef, China has sought to exercise the right of ownership as well as the exclusive right of the coastal state within its EEZ — both of these rights belong to the Philippines. President Estrada was therefore well advised to seek the UN secretary-general’s good offices. Both China and the Philippines need to demonstrate that they are firmly committed to the pacific settlement of disputes.
There are several ways of doing this. First, both countries can do what Malaysia and Indonesia have done with respect to their dispute over Ligitan and Sipadan islands, or what Botswana and Namibia have done with respect to their dispute over Kasikili/Sedudu island.
On May 31, 1997, Malaysia and Indonesia agreed to submit their dispute to the International Court of Justice. Both parties jointly requested the court “to determine on the basis of the treaties, agreements and other evidence furnished by the Parties whether sovereignty over Pulau Ligitan and Pulau Sipadan belongs to Indonesia or Malaysia.”
In the case of Botswana, a former British protectorate known as Bechuanaland, and Namibia, a former German colony known as Southwest Africa, they agreed to submit to the World Court their dispute over the ownership of an island on the Chobe River known as Kasikili to Namibia and Sedudu to Botswana. The court ruled in favor of Botswana, which ruling Namibia accepted.
Given the existing precedents, China and the Philippines could submit jointly to the UN General Assembly a resolution requesting the World Court for an advisory opinion on the exact legal status of the South China Sea. This was the formula used to solve the three-power dispute over Western Sahara, a colony administered by Spain but claimed by the kingdom of Morocco and Mauritania. The UN Assembly asked the court to answer two questions:
– Was Western Sahara at the time of colonization by Spain a territory belonging to no one — terram nullius?
– What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?
In like manner, the Philippines and China could request the UN General Assembly to ask the World Court for an advisory opinion on two questions, which could be framed as follows:
“At the time of the signing of the Unclos on Dec. 10, 1982, was the entire South China Sea, including all its waters, islands, reefs, cays, sandbars, rocks and shoals, etc., under the indisputable sovereignty of the People’s Republic of China?
"If the answer to the first question is in the negative, what are the rights and duties of the Philippines, Vietnam, Malaysia and Brunei under the Unclos, particularly with respect to their continental shelf and 200-mile EEZ? This should allow the World Court to rule on the applicability of the Unclos to the Philippine-China dispute over Kalayaan.”
fstatad@gmail.com