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BY AYIN DREAM D. APLASCA
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February 8, 2018
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IS CHINA allowed to conduct research at Benham Rise? The answers are divided into two – Yes and No. Which is which?
In 2016, the Philippines won its case before the Permanent Court of Arbitration (PCA) in The Hague in the Netherlands. It ruled that China had no legal basis to claim historic resources within the sea areas falling within its so-called “nine-dash line.’”
Let me discuss first what the issue was all about and the decision of the PCA in relation to what is happening right now.
In 2012, China took control of the Scarborough Shoal. Prior to that, there was tension between Chinese coastguard ships and a Philippine naval vessel that had stopped a Chinese fishing boat to inspect it. Thus in 2013, the Philippines brought its dispute to the PCA. However, China ignored the said protest and called its sovereignty in the area as “indisputable.”
China even argued that the panel does not have jurisdiction over the case. Their position was that issues of sovereignty and boundary definition are not covered by the United Nations convention.
The panel ruled that it has jurisdiction. China, however, did not participate in the hearing on the merits of the case.
As a result, on July 12, 2016 the PCA ruled that China had no legal basis for claiming the South China Sea and had aggravated the regional dispute with its land reclamation and construction of artificial islands that destroyed coral reefs and natural conditions in the disputed areas. Unfortunately, China rejected the decision outright.
Say what now? It’s high time again to revisit the United Nations Convention on the Law of the Sea (UNCLOS).
Counterchecking the Preamble of UNCLOS, it states that the State Parties to the Convention should recognize “the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.”
This only means that the Philippines has no valid ground to disallow other member states from conducting research. However, in the case of China, the Philippines has a valid ground for the former because it refused to comply with the arbitral ruling of the tribunal created under UNCLOS. As what Supreme Court Senior Associate Justice Antonio Carpio has said, “Philippines can validly disallow China from conducting Marine Scientific Research in the extended continental shelf in Benham Rise.”
It should be noted also that the UNCLOS under Article 57 provides that States have sovereign rights over waters located 200 nautical miles from the Exclusive Economic Zone (EEZ) and over waters found to be a part of its extended continental shelf. In our case, Benham Rise is inside Philippine EEZ and the rest is part of the country’s continental shelf.
However, the administration has a different answer on this that needs consideration. Research may be allowed provided that Filipino researchers should also be involved. Non-compliance with the said condition is tantamount to denial of their requests.
This may be applicable to all, but isn’t it absurd to allow China to conduct research due to the fact that it did not heed the UN tribunal’s decision? Think twice. The consequences are at the expense of our national security.
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(Atty. Ayin Dream D. Aplasca practices her profession in Iloilo City. She may be reached thru ayindream.aplasca@gmail.com/PN)
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