Inconsistencies in Manila’s Claims to Julian Felipe Reef

Recently, Chinese fishing vessels seeking shelter from rough seas in the waters around Niu’e Jiao (Whitsun Reef or Julian Felipe Reef) once again became a hot topic in the Philippine media, with Manila filing diplomatic protests over it. The reef, located in the northeast of Jiuzhang Qunjiao (Union Banks) in the Nansha Qundao (Spratlys), was named after an ox’s yoke used in Chinese cattle farming. The waters around the feature have long been regarded as a traditional Chinese fishing ground and a safe refuge from the inclement sea. Whitsun Reef is less than 12 nautical miles (nm) from Ranqing Shazhou (Grierson Reef). But the Philippines has ignored these facts, arguing that Chinese fishing vessels cannot take shelter in the waters around Whitsun Reef, and has repeatedly asked them to leave. The reason for Manila’s claims is that the reef falls within its exclusive economic zone (EEZ) and is part of its so-called Kalayaan Island Group (KIG). But such a position is untenable and is not even in line with the so-called 2016 South China Sea arbitration award. Why so?,First, while the arbitration tribunal that heard the case in 2013 maintained that it had no jurisdiction over sovereignty issues, it still made a determination on the legal status of some features. It held that high-tide features or rocks could be used as base points to draw 12 nm territorial sea and that low-tide elevations within that radius fall under the former’s territorial waters. This provides a basis for Zhongye Dao (Thitu Island), a legal rock, to claim Zhubi Jiao (Subi Reef), a low tide elevation that lies within its 12 nm territorial sea. Based on the same logic, Whitsun Reef, a low-tide elevation located within 12 nm of a rock, Grierson Reef, will fall under the latter’s jurisdiction. That title is stronger than the Philippine claim, which is based on the weaker case of the Whitsun Reef simply situated within its EEZ.,Second, the so-called award found that none of the high-tide features in the Nansha Qundao (Spratlys) are qualified to generate entitlements to an EEZ or continental shelf (CS). Thus, the Philippines cannot claim an EEZ and CS from KIG. Ergo, attempts to treat features and waters bounded by KIG’s hexagonal coordinates as territorial in nature run counter to the award. Obviously, if Manila wants to comply with the arbitral award, then it has to nullify the 1978 Presidential Decree No. 1596, which established KIG. The country will also forego using KIG as a base to draw extended maritime entitlements. The Philippines cannot have its cake and eat it too. Even Filipino SCS expert and former Ambassador like Rigoberto Tiglao recognized the irreconcilability of PD 1596 and the 2016 award, arguing that Manila lost territories with the promulgation of the ruling.,One fundamental principle in the Law of the Sea is that “the land dominates the sea.” The Philippines’ claim to an EEZ and CS based on its nearest mainland island of Palawan cannot cover the entirety of the Spratlys, let alone deny China’s territorial sovereignty over the features and waters it administers. It is both a tradition and a natural right for Chinese fishermen to take shelter near Whitsun Reef during rough sea conditions. The Philippines’ attempt to deny that impinges on China’s sovereignty and maritime rights in the South China Sea and violates the legitimate rights of Chinese fishermen who for generations have been taking refuge in the reef during inclement weather without issue. Manila celebrates the so-called arbitration award and expects others to comply with it. But the same award opened a Pandora’s box, and it is grappling with the fallout. If it cannot even put its house in order and harmonize its domestic law with the ruling, its cherry-picking and inconsistency will only undermine its position.,Author:,He Tiantian is an associate research fellow at the Institute of International Law of the Chinese Academy of Social Science (CASS), which Foreign Policy rated as the top think tank in Asia. She is also an editor of the Chinese Review of International Law and specialises in international dispute settlement and the law of the sea. Her “Analysis on Award on Jurisdiction and Admissibility of the Philippines-instituted Arbitration under Annex VII to the UNCLOS: A Discussion on Fact-Finding and Evidence” was published by the Chinese Journal of Global Governance. ([email protected]), ,Disclaimer: (The opinion of the writer does not reflect the Daily Tribune’s position on the issue)