ENFORCE ARBITRAL AWARD, BUT FIRST LET'S DO OUR HOMEWORK

THE Philippines should assert and enforce the July 12, 2016 arbitral tribunal ruling on the Philippines-China South China Sea conflict. But how? Incidentally, our government has yet to define what is "Atin." To expound further:

1. Since the promulgation of the arbitral tribunal award, did our government publish an official map indicating the geographical coordinates of our maritime zones (exclusive economic zones, territorial seas, contiguous zones, internal waters and archipelagic waters)?

2. A published official map should indicate and enumerate the awards that declared the high tide and low tide elevations as rock territories. The rock territories should have their respective 12 nautical mile territorial seas. Why is this important? Because the law enforcement regime inside the territorial seas of these rocks is different from those in the exclusive economic zones (EEZ). In the EEZ, one can only enforce two laws: fisheries law (if it conforms with the United Nations Convention on the Law of the Sea, which, incidentally, our fishery laws do not conform to) and environmental law. In the territorial seas, one can enforce all the domestic laws.

However, were we able to enumerate our claimed rocks on an official map? No. Why? Because the origin of our official claim of the Kalayaan Island Group (KIG) stemmed from Presidential Decree (PD) 1596 (1978). Incidentally, the said law is just a two-page document that did not enumerate those "claimed islands" inside the polygon box. The decree only states that this is the polygon box in the South China Sea, and inside the box is our territory and internal waters, period. Fast-forward to the advent of Republic Act 9522 (2009), as sustained by the Supreme Court as constitutional in 2011. This has practically removed the PD 1596 polygon box, again, without enumerating therein our claimed islands. The arbitral tribunal also exacerbated this inadvertence by declaring that the Philippines cannot also claim the whole KIG as its territory, like China's nine-dash line (see para 573 and 574 of the award).

Now, Filipinos are made to believe by the media (using the pseudo international law and maritime security experts' jingoism) that these maritime areas belong to the Philippines, without specifically explaining the big difference, technically and legally. They just speak their usual rhetoric of rousing the emotional patriotism of gullible Filipinos. Incidentally, Vietnam and Malaysia do not recognize the award. That makes the issue more complicated. They are just watching on the sidelines while the Philippines and China are scratching each other. They are the winners in this conflict because, at the end of the day, their territorial claims exist while at the same time, they solidify their economy with China's help.

We lost. Why?

Because in international law, the territorial claim is superior to just a mere maritime claim based on Unclos. Ask any international law expert, and they will confirm this. Unclos is not the venue to determine territoriality or ownership. It's the International Court of Justice. What complicates the matter is our co-claimants, five of them, maintain the said South China Sea area as their "territory," while the Philippines claim the said area as its own, invoking Unclos and the arbitral award, meaning a mere "sovereign rights claim," not territorial, appearing inferior to the territorial claims of other claimant states. This is so because Unclos, and the arbitral award in particular, has not provided the Philippines with territorial ownership of our claim, only sovereign rights to fish and extract hydrocarbon deposits in our EEZ and continental shelf, respectively.

How can we solve this dilemma? Either we partially accept the award or abrogate the same. Incidentally, in international law, there is no such thing as partial acceptance. Since the Philippines was the one that initiated the award, lock, stock and barrel, we have to accept it or abrogate the same.

Meanwhile, how will our law enforcers determine our claimed territories (sovereignty) when we do not have a published map to reckon with? How will our enforcers determine the extent of our claimed maritime zones to assert our sovereign rights? Right now, they are sent to this disputed area and are ordered to defend what is ours without even intelligently knowing the location and extent of what is ours! Lawfare is comparable to warfare. We have to arm them with enough legal ammunition to fight for our rights, as we are being watched by the international community in this maritime theater of legal and territorial conflict. We cannot invoke the "rule of law" and international law, unless we have complied with them to the letter and spirit. We should have strong moral and legal grounds to assert them, otherwise, we are just mirroring what we have been accusing China of — a bully and a violator of the law.

Note that the maritime zones do not give rise to territorial claims; hence, the Philippines should not look at it as if we claim these as territories. The surface of the EEZ is considered the high seas (Art 58 and 87, Unclos), and any ship of a foreign country can navigate or even loiter (except to conduct marine scientific research, fishing and build artificial islands). This is what the United States is invoking — freedom of navigation: whether you stop sailing for as long as your engine is operating, and even you can freely conduct military exercises therein and much freer.

Yes, we have to fight for what is ours to the teeth, even sacrificing our lives for the sake of our dear motherland. But first things first, where is the published map? Without this, the Philippines will just be exploited by external forces using our naivete. The silence of our Asean neighbors, especially our co-claimants, does not mean that they recognize our claims. One should understand that the area the Philippines claims is a disputed area, not just by the Philippines vs China, but by five other countries (Vietnam, Malaysia, Indonesia, Brunei and Taiwan) as well; it is not just the Philippines versus China.

This is now the essence of asserting that we must enforce the hard-earned arbitral award by way of:

1. Revisiting the 505-page award, studying and evaluating them correctly, and determining what we have gained or lost.

2. Legislating what is necessary to confirm the award with our domestic laws.

3. If 1 and 2 are satisfied, publish the map of our claimed jurisdiction and submit the same to the United Nations and the International Hydrographic Office for official publication and for the world to see whether they recognize the same or not. After all, this is a requirement under international law.

4. Using diplomacy.

5. Using many more measures that I cannot discuss here for lack of time and space.

Once we have done this, we call for every Filipino to band together and fight what is "Atin" in the South China Sea. We should now be ready to shed blood and, if necessary, sacrifice our lives for the sake of our present generations and generations yet unborn of Filipinos.

I am committing to resurrect myself from retirement and lead the first wave of Filipino volunteers to defend what we consider ours after we have done our homework, as earlier discussed. This is my jihad as a proud and devout Filipino Muslim.

Allahu Akbar!

Adm. Joel Sarsiban Garcia

Former Commandant of the Philippine Coast Guard

2024-07-04T16:21:20Z dg43tfdfdgfd