BY the “Yellow Trio,” I mean the three who have been clamorously claiming that China is out to devour our territories in the South China Sea. These three are:
1. President Benigno Aquino 3rd’s foreign secretary Albert del Rosario who pushed for the filing of an arbitration case against China over our disputes with that country in the South China Sea in his attempt to cover up for his loss of Scarborough Shoal because of his bungling in 2012;
2. Former Supreme Court senior associate justice Antonio Carpio, believed to be the architect of that suit; and
3. Former Supreme Court justice Conchita Carpio-Morales, who seems to think her role in her post-Supreme Court years would be as her colleague Carpio’s partner in shaming China.
Wittingly or unwittingly, their actions have only served to advance China’s claims in the South China Sea, while trying to demonize China as an expansionist power. If this is the kind of “patriots” we have, we are in big trouble.
Apparently to maintain media attention for their narrative of Chinese expansionism in the South China Sea — after the arbitration ruling in July 2016 proved to be useless and even harmed our national interests — del Rosario and Carpio-Morales last March filed a complaint again Chinese President Xi Jinping before the International Criminal Court (ICC) “for crimes against humanity over environmental damage in the South China Sea.” The two claimed the suit was filed “in behalf of the hundreds of thousands of Filipino fishermen persecuted and injured by the People’s Republic of China.”
Honestly, my conspiratorial mind is telling me that the duo’s hyperbole — “China undertook the most massive, near permanent, and devastation destruction of the environment in humanity’s history,” the complaint claimed — only serves to hide an intention to get a ruling that would have an immense adverse impact on our claims in the South China Sea.
This is because the ICC’s Office of the Prosecutor in its report dated December 5 dismissed the complaint, on grounds devastating to our claims in the Spratlys,
The ICC declared: “The crimes referred to in the communication were allegedly committed by Chinese nationals in the territory of the Philippines. The information available confirms that the alleged conduct in question occurred in areas that are outside of the Philippines’ territorial sea (i.e., in areas farther than 12 nautical miles from its coast) but nonetheless within areas that may be considered to fall within its declared exclusive economic zone (EEZ). However, the Office has concluded that a State’s EEZ cannot be considered to comprise part of its ‘territory’.”
This is the first time ever that a third party with some (but obviously not binding authority) international legal personality has in effect ruled that features in the South China Sea that we have claimed as ours are not our territory.
Specifically, the ICC pointed out that the reefs, two of which we claim are within our EEZ and on which China has occupied and built installations from 2013 to 2016 (which the Yellow Duo claimed destroyed the maritime environment there) are “areas outside the Philippine territory.” While these “purportedly” are within our EEZ, the ICC claimed that “these are not considered to comprise part of a State’s territory under international law.” While a State has ‘”sovereign rights” within its EEZ, it does not have sovereignty in this area, which “implies its exclusive legal authority.”
The ICC emphasized: “Such ‘sovereign rights’ are limited to specific purposes, as enumerated in the UN Convention on the Law of the Sea (Unclos), but do not permit the State to exercise full powers over such areas, as sovereignty might allow.”
The implications of the ICC’s statements are devastating to our territorial claims.
If it declared that the reefs are not part of our sovereign territory, then the only two possible countries which has sovereignty over it are Vietnam and the People’s Republic of China, which claim the reef as well as the entire Spratlys not on grounds that these are within their EEZ but as regimes of islands they have sovereignty over.
Chinese President Xi must have rolled over in laughter. The Yellow Trio’s complaint against him resulted in a statement by an international legal body that the Kalayaan Island Group (KIG, which China claims as its Nansha islands) isn’t ours.
The result of the trio’s complaint is as worse as the adverse consequences against us of the arbitration suit the 2013 Yellow regime brought against China, pushed by del Rosario and Carpio.
Among these adverse rulings of the arbitration panel — which I have discussed in detail in previous columns, but which the Yellow Trio have not responded to — three of them are the following:
1. None of the features in our Kalayaan Island Group which we consider as islands are, under Unclos, not islands, but mere “rocks”. Unless we declare the arbitration award null and void, we can no longer under Unclos, claim exclusive economic zones (of 430 square kilometers, four times bigger than the entire island of Luzon) around Pag-Asa Island, the second biggest island in the Spratlys and several such islands. We gave up what Japan, the US and other countries do for their tiny islands. In the case of the Spratlys, the potential loss for us is immense: We lost huge areas as our EEZ, which contain vast quantities of oil and gas.
2. Neither Unclos nor any international body has the authority to determine which country is the rightful owner of Scarborough Shoal, which we call Bajo de Masinloc, which some even claim is shown in the 1734 “Murillo map” as ours, but which China claims is theirs.
3. Unclos does not have authority to ban or prevent military or paramilitary operations in the South China Sea, such as Chinese vessels’ attempt to block our ships from providing supplies to our detachment in Ayungin Shoal in May 2013.
The Yellow regime because of its stupidity in filing the arbitration suit – or slavishly following American advice – made us vulnerable to such military operations in the disputed areas by China or Vietnam.
The tribunal’s ruling that was most hailed by the Yellow regime as well as by the US government and media was its judgment that China’s so-called, even infamous “nine-dash line” has no legal basis under the Unclos.
However, that was really one of the tribunal’s most useless rulings: China’s claims in the South China Sea are not based on the nine-dash line nor on maritime entitlements specified by the Unclos. The Yellows chased, and even caught, a phantom issue that didn’t have a bearing on our territorial dispute with China.
The arbitration suit and criminal complaint against China could have the worst, adverse long-term impact on the Philippines’ national interest.