Will Filipino fishermen be able to fish in Scarborough after tribunal ruling?

When the Permanent Court of Arbitration (PCA) hands down its verdict on Tuesday, 5 p.m. Manila time (11 a.m. in The Hague), it will rule on the Philippines’ 15 submissions, one of which may have an important practical implication on Filipino fishermen.

That is Submission No. 10, where the Philippines protested that “China has unlawfully prevented Philippine fishermen from carrying out traditional fishing activities within the territorial sea of Scarborough Shoal.”

Submission No. 10 is one of 7 Philippine submissions which the PCA had earlier ruled to have jurisdiction of in its Award of Jurisdiction and Admissibility on October 29, 2015. The rest will have to be decided in conjunction with the merits of the Philippines’ case.

In its characterization of the dispute, the PCA summarized the Philippine position as follows:

“The Philippines has requested that the Tribunal determine the status  – as an island, rock, low-tide elevation, or submerged feature – of nine maritime features, namely: Scarborough Shoal, Mischief Reef, Second Thomas Shoal, Subi Reef, Gaven Reef, and McKennan Reef (including Hughes Reef), Johnson Reef, Cuarteron Reef, and Feiry Cross Reef” … in Philippines’ submission no. 3, 4, 6, and 7.”

“… the Philippines’ submissions No. 8 through 14 concern a series of disputes regarding Chinese activities in South China Sea,” the PCA further said.

China's grand design

In 2012, just two years into the term of then-President Benigno Aquino III, China seized Scarborough Shoal (also called Panatag Shoal) from the Philippines. The year after, the Philippines’ launched its lawfare against China’s might by filing the case at the PCA.

On May 16, 2016, China announced a unilateral fishing ban in the South China Sea that includes the Scarborough Shoal.

In one of his presentations on the South China Sea row, Supreme Court Senior Associate Justice Antonio Carpio said that such action was part of China’s grand design to control the South China Sea.

“China wants all the fisheries, oil, gas and mineral resources within the 9-dashed lines. China already takes 50 percent of the annual fish catch in the South China Sea as more than 80 percent of its coastal waters are already polluted,” he said.

And China can very well do what it wants: “China has the largest fishing fleet in the world with 200,000 sea-going vessels and 2, 640 long distance ocean-going vessels,” Carpio added.

A source privy to the case would not say what the PCA would do with submission No. 10 (declare the Chinese actions as illegal?) but it would rule on all 15 submissions of the Philippines, whether for or against.

But further at risk here, according to Carpio, is 80 percent of the Philippines’ exclusive economic zone of EEZ or a total of over 531,000 square kilometers of maritime space including 150,000 square meters of the Philippines’ extended continental shelf.

The basis for China’s claims is the 9-dashed lines claim, only submitted to the United Nations in 2009.

It is, according to Carpio, the root cause of the dispute.

“It has no legal bases and no fixed coordinates. It gobbles up large swathes of Exclusive Economic Zones of the Philippines, Vietnam, Malaysia and Brunei,” Carpio said.

Contrast this to the Philippines historic evidence to prove that Scarborough Shoal is its own.

One of which is the 1734 Murillo Velarde Map, considered to be “the mother of all Philippine maps.”

It was published in 1734 by the Jesuit Pedro Murillo Velarde where it showed that Scarborough’s name was Panacot (threat or danger).

“The Scarborough shoal had a Tagalog name 213 years before China drew its 9-dashed lines map,” Carpio said.

PHL position

A source privy to the case said maps would have very little value in the way the Tribunal decides the case but it does provide a window to how it would.

In its October 2015 Award on Jurisdiction and Admissibility, the PCA said that it would not determine sovereignty, which was China’s objection.

But, “.. the Tribunal is of the view that it is entirely possible to approach the Philippines’ submission from the premise – as the Philippines’ suggest – that China is correct in its assertion of sovereignty over Scarborough Shoal and the Spratlys,” it said.

Solicitor General Florin Hilbay argued before the Tribunal the following positions:

• “China is not entitled to exercise what it refers to as ‘historic rights’ over the waters, seabed and subsoil beyond the limits of its entitlements under the Convention (United Nations Convention on the Laws of the Sea).
• … the so-called nine-dash lines has no basis whatsoever under International law insofar as it purports to define the limits of China’s claim to ‘historic rights.’
• …. Various maritime features relied upon by China as a basis upon which to assert its claims in the South China Sea are not islands that generate entitlement to an exclusive economic zone or continental shelf …
• China has breached the Convention by interfering with the Philippines’ exercise of its sovereign rights and jurisdiction,” and;
• China has irreversibly damaged the regional maritime environment, in breach of (the Convention), by its destruction of coral reefs in the South China Sea, including areas within the Philippines’ exclusive economic zone, by its destructive and hazardous fishing practices, and by its harvesting of endangered species.

When the PCA rules on Tuesday, it would not only rule on the entitlements of the features in the South China Sea and on China’s actions as the Philippines wants but would by consequence decide whether the UNCLOS would stay relevant.

These words from Justice Carpio: “(The) South China sea dispute can overturn the United Nations Convention on the Laws of the Sea (UNCLOS), the Constitution for the oceans and seas of our planet.”

The UNCLOS is ratified by 86 percent of the 193 UN member states including China. — RSJ, GMA News