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07/06/2011: A Rules-Based Regime in the South China Sea

A Rules-Based Regime in the South China Sea
Albert F. Del Rosario
Secretary of Foreign Affairs

The rule of law is the bedrock of peace, order and fairness in modern societies. The rise of a rules-based international system has been the great equalizer in global affairs. Respect and adherence to international law have preserved peace and resolved conflicts. International law has given equal voice to nations regardless of political, economic or military stature, banishing the unlawful use of sheer force.

Nowhere is the pursuit and promotion of a rules-based international system more germane, than in the definition and the protection of the integrity of the territory of a country. An established and well-defined territory, terrestrial or maritime, is a sine qua non for the existence of any nation-state. In a global community of complementing and competing interests, a rules-based international system bestows clarity, definitiveness and legitimacy to territorial claims.

Where there are disputes, rules provide an effective tool for peaceful and fair resolution.

Not since the Panganiban (Mischief) Reef incident in 1995 has the Philippines faced serious challenges in the West Philippine Sea, otherwise known as the South China Sea (SCS). For instance, our ownership of the Kalayaan Island Group (KIG) features and our legitimate maritime jurisdictions have been contested by certain nations, even as the Philippines’ sovereignty and jurisdiction over the KIG are firmly grounded on international law.

A rules-based approach therefore provides the key to securing our claims and advancing the peaceful settlement of disputes for all in the SCS.

For the Philippines, certainly, the primacy of international law, particularly the United Nations Convention on the Law of the Sea (UNCLOS), is the cornerstone on which we define and protect our territory and maritime entitlements in the SCS.  It is this principle and the requirements of UNCLOS that governed the passage in 2009 of the Philippine Archipelagic Baselines Law (R.A. 9522).

The same principles underpin the two vital pieces of proposed legislation defining our maritime zones and archipelagic sea lanes which have been certified as urgent by President Benigno S. Aquino III.

International law is also the guidepost by which the Philippines engages parties -- claimants and non-claimants alike -- towards a peaceful and just resolution of disputes and the guarantee of freedom of navigation in the SCS.

This same pursuit of a rules-based system was behind the adoption of the 2002 ASEAN-China Declaration of Conduct of Parties in the South China Sea (DoC).

Paragraph 5 of the DoC provides that “the Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited reefs, shoals, cays, and other features and to handle their differences in a constructive manner.” It is noted that this very provision is being aggressively violated.

Under the DoC, the Parties also affirmed the need for a binding Code of Conduct (CoC) and agreed to work towards its realization. A CoC would concretely express our collective goal for rules-based actions by all concerned Parties.

To reinforce this goal, we offer a framework that transforms the SCS from an area of dispute to a Zone of Peace, Freedom, Friendship, and Cooperation (ZoPFF/C) by a segregation of disputed relevant features from the undisputed waters of the SCS consistent with UNCLOS. In the words of President Aquino, ZoPFF/C is a modality for ensuring that “what is ours is ours, and with what is disputed, we can work towards joint cooperation.”

For example, Recto (Reed) Bank is part of the continental shelf of the western coast of Palawan Province in the Philippines. It is about 85 nautical miles from the nearest coast of Palawan and therefore well within the 200 nautical miles Continental Shelf of the Philippine archipelago under UNCLOS.  In contrast, it is roughly 595 nautical miles from the nearest coast of China. This means that the Philippines has unequivocal sovereign rights over Recto (Reed) Bank.

Since the Recto (Reed) Bank is ours, it can only be exclusively developed by the Philippines. The Philippines may however invite foreign investors to assist in developing the area in accordance with Philippine laws.

The disputed features, on the other hand, can be transformed into a Joint Cooperation Area for joint development and the establishment of a marine protected area for biodiversity conservation under ZoPFF/C.

We are confident that ZoPFF/C represents an important contribution to securing peace, stability and progress in the SCS within a rule-of-law framework, and that the concept deserves serious and favorable consideration by countries with stakes in the SCS.

The Philippines’ policy in the SCS, both with respect to securing its terrestrial and maritime domain and to advocating dispute resolution and joint cooperation where applicable, is grounded on an unwavering adherence to international law. Since international law must be observed, it behooves the Philippines to embrace this imperative to the fullest.

We expect nothing less from our international partners.