Philippines has edge over China in dispute: US think-tank

By Jojo Malig,

Posted at Jul 11 2012 05:58 PM | Updated as of Jul 13 2012 06:11 AM

MANILA, Philippines - The Philippines has an advantage over China in their territorial dispute, but only if Manila will take a clear and firm stand on what it is claiming in the West Philippine Sea, a US security think-tank said.

Making a stand means the Philippines' claims on specific areas in the disputed waters should be "codified in law" to strengthen the legal basis of the country's maritime claims, said Gregory Poling, research associate of Southeast Asia Program at the Center for Strategic and International Studies (CSIS) in Washington, D.C.

Poling, in a July 6 analysis of the competing claims in the West Philippine Sea, said the Philippines and other Southeast Asian countries having laws to press their claims will also "allow them to present a united front to China in arguing one crucial point: The only acceptable basis for maritime claims in the South China Sea must be international law, especially UNCLOS (United Nations Convention on the Law of the Sea)."

"Were the ASEAN claimants to present an agreed-upon framework for establishing what is and is not disputed, the burden would rest with Beijing to clarify the basis for its own claims," he said. "At that point, Beijing would have limited options."

"Such pressure might give more moderate voices, like those in the Ministry of Foreign Affairs, more credibility, allowing China to clarify its claims by retaining those to the Spratlys and Paracels but giving up its egregious claims to the waters in between. This would mark an important step toward resolving the South China Sea dispute," he added.

After a lot of perceived foot-dragging, then President Gloria Macapagal-Arroyo enacted the Philippine Baselines Law (RA 9522) in 2009 that established the Philippines' coastal baselines in accordance with UNCLOS.

However, confidential US diplomatic memos published by anti-secrecy group WikiLeaks pointed out that the law did not include the disputed territory in the Philippines' baselines and left the Spratlys and Scarborough classed as "regimes of islands."

According to cable 09MANILA428, Arroyo saw the compromise bill as the best way to prevent the tension over the disputed territories from worsening "and partly out of recognition that the Philippines lacks the military capacity to defend the Spratlys, if it should ever come to that."

The memo believes that Arroyo signed the watered-down measure with the hope that she "placated" China's anger over a more assertive baselines law.

Poling, in his analysis, said China is deliberately being ambigious over its claims in the West Philippine Sea because it gives Beijing "the flexibility to interpret its position to serve the audience at hand."

'China can't claim Panatag Shoal'

He also said China has no legal basis to back its claims on Scarborough or Panatag shoal.

"For years the Chinese territorial claims in the South China Sea extended only to the Spratlys (Nansha, or 'South Banks') and Paracels (Xisha, or 'West Banks'). Any claim to other features, like Scarborough Shoal, was only implied in so far as they fell within the ambiguous 9-dash lines," he said.

"Then China extended its claim to the entirely submerged Macclesfield Bank via the imaginary Zhongsha, or 'Middle Banks,' despite there being no way under international law to claim title over a submerged feature as if it were an island," he added.

"Further, in recent years, as Beijing has tried to move beyond an overreliance on the indefensible 9-dash lines, Scarborough Shoal has been incorporated as part of Zhongsha. The fact that it lies hundreds of miles from Macclesfield Bank or that it appears on none of the historical documents China puts forth to prove its title to the Spratlys and Paracels seemingly does not matter," Poling said.

The CSIS researcher said China is contradicting itself when its own Ministry of Foreign Affairs statement issued a statement in February 2012 that "no nation claims sovereignty over the entire South China Sea and that the dispute is only about the 'islands and adjacent waters. islands and adjacent waters.'"

He cited the annual unilateral fishing ban for the entire West Philippine Sea as proof of Beijing's unclear position on what it is indeed claiming in the Spratlys.

Local, international laws should end dispute

ASEAN countries setting their claims into laws -- both in local legislation and in a multilateral framework under international law -- will place China in a difficult position, Poling said.

"Alternately, Beijing could reject entirely the primacy of accepted international law in the dispute, but that would be extremely damaging to China’s larger interests," he added.  "Such a course of action would identify China as the undeniable remaining belligerent in the dispute and rally regional and international opinion around the ASEAN claimants’ position."

A draft document agreed by the foreign ministers of the Philippines and other ASEAN members state that they want international laws, including UNCLOS, to be the basis for settling competing claims in the West Philippine Sea, according to Agence France-Presse.

They are currently meeting in Cambodia to finally hammer out a code Of conduct in the disputed waters of the region.

The draft document outlining ASEAN's position calls on all sides to "undertake to resolve territorial... disputes in the (South China Sea) by peaceful means in accordance with international law, including UNCLOS."

China is opposing the ASEAN as a venue for settling the disputes and does not want UNCLOS to be used, as well, according to official statements from Beijing.