South China Sea: Philippines should legislate 'gains' of arbitral win, group says

Philippine President Rodrigo Duterte should legislate the "gains" of the country's 2016 arbitral win over its South China Sea claims to end the "impasse" between Beijing and Manila, three legal experts said, weeks ahead of the fifth anniversary of the ruling.

Ties between the countries have been strained over China's increasingly assertive claims over the resource-rich waters, with the swarming of 200 Chinese boats in Philippine waters in February sparking heated exchanges between officials. Manila has filed daily diplomatic protests over the dispute since March, with more than 60 protests filed since Duterte took office in 2016.

Francis Jardeleza, a retired supreme court justice, said he and two others had drafted a bill, called the "Philippine Maritime Features of the West Philippine Sea Act", that would help the government to enforce its claims over more than 100 features in the waterway.

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In a letter sent to Duterte on Saturday, Jardeleza urged the president to certify "as urgent" the enactment of the proposed measure, which has prompted a mixed reaction from analysts.

"July 12, 2021 will mark the fifth anniversary of the July 12, 2016 award in the South China Sea Arbitration, which you affirmed in your first State of the Nation address, and reaffirmed in your September 23, 2020 policy speech before the United Nations General Assembly," the letter said. "Unfortunately, almost five years after the Award, our country seems still divided on how best to enforce it."

Jardeleza, who was part of the Philippine legal team behind the arbitration, said that legislation would be "the best, most efficient and practical option" to enforce the award handed to the Philippines by the Permanent Court of Arbitration.

The draft measure proposes a new baselines law to break the impasse by naming at least 128 maritime features in the South China Sea over which the Philippines "has sovereignty, sovereign rights and jurisdiction", as well as 35 "identified offshore rock or high-tide features" around which the country would draw individual baselines.

Naming the individual features "constitutes an act of sovereignty in relation to each feature", the experts said.

The experts, who include Dr Melissa Loja - who has a PhD in public international law from the University of Hong Kong - insisted that the arbitral award declared that "no littoral state, including the Philippines" could claim the Spratly Islands as an archipelago.

"Thus, it is no longer enough to merely refer to the features as Kalayaan Island Group or Troung Sa or Nansha Qundao. Rather, the features in the Spratly Islands must be treated as individual rocks with individual territorial seas," they said in the letter.

Romel Bagares, a professor of international law and a backer of the draft measure, said once Duterte certified the bill as urgent, there would be "no problem" in finding lawmakers to push the bill for swift approval in both chambers before Duterte ends his presidential term in July next year.

Philippine diplomat Henry Bensurto, who was also part of the arbitral team, said however he disagreed with the idea of leaving it to lawmakers to decide which maritime features should be included in the list.

"It is not a matter of discretion," said Bensurto, the consul-general in the US city of San Francisco, at an online press briefing called by the experts on their proposed measure. Like Jardeleza, Bensurto had also assisted in the arbitration.

Filipino protesters stage a rally in front of the Chinese Consulate in Manila on May 7, 2021. Photo: EPA-EFE alt=Filipino protesters stage a rally in front of the Chinese Consulate in Manila on May 7, 2021. Photo: EPA-EFE

International maritime law expert Jay Batongbacal said he thought the draft bill was "unnecessary".

"We don't need to legislate each and every one of the 7,641 islands of the Philippines to be able to exercise sovereignty or jurisdiction over them," said Batongbacal, the director of the University of the Philippines Institute for Maritime Affairs and Law of the Sea.

"The interference in Philippine rights arises not because of differences in identification, but because of the activities of China against Filipino fishermen and vessels," he said.

"That interference, and implicitly, that 'impasse', will continue despite this exercise of specifying the features," Batongbacal told This Week in Asia in an interview.

The professor also pointed out that the country's National Mapping and Resource Information Authority had published and distributed many charts containing the names and locations of the islands and features in the Kalayaan Islands "since the 1970s".

"That is a much clearer and actual exercise of sovereignty than this proposed legislation," he said.

Batongbacal added that there was already a "maritime zone bill" awaiting approval in the Senate after being passed in the House.

"[That bill] already contains the necessary authority for the drawing of zones using normal baselines around the features in the Kalayaan Islands in accordance with the Arbitral Award," he said. "Implementation of the bill as passed will address the apparent problem being raised."

As of press time, there was no reaction from the presidential palace.

This article originally appeared on the South China Morning Post (SCMP).

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