Whether 9, 10, or 11 dashes, China’s claim is indefensible

In spite of a direct order from the Supreme Court, Environment Sec. Ramon Paje is abetting the dirty nickel mines in Zambales. The mines continue to pollute the towns of Masinloc and Sta. Cruz, all the way to adjacent Infanta, Pangasinan. Unrestricted, they sell the metal to China, for use in weapons and spying systems to grab Philippine oil and fishing resources. Do Paje’s bosses in Malacañang tolerate the health and sovereignty woes that he is causing?

On petition of Masinloc townsmen, the High Court last July ordered the mines closed. Specifically directed to stop the excavations and exports – but disobedient – were Paje and Zambales Gov. Hermogenes Ebdane. Why them? Because it was Ebdane who, in one day in 2012, signed all 94 “small-scale mining” permits to operate outside the allowable zone. And he did so on Paje’s legal opinion that a Marcos decree on such mines is still valid despite repeal by the People’s Small-Scale Mining Act of 1991. Marcos had empowered governors to permit small mines anywhere; the 1991 law allows them only in a province’s designated Minahang Bayan.

The 94 mines are anything but small-scale. The operators use not handpicks or shovels, but colossal extractors, thousands of dump trucks, and bulk-cargo ships. Mines waste muddy the rivers and seas of Masinloc-Sta.Cruz-Infanta, and truck emissions darken the air. Malnutrition and respiratory disease are rampant among the townsfolk.

Chinese nationals run at least five of the 94 mines, in breach of the constitutional bar on foreign exploitation of natural resources. All 94, like the dozens of bigger nickel mines that Paje allows in Surigao, Agusan, Palawan, and Tawi-Tawi, ship to China. Not far offshore from Zambales, Chinese sailors are preparing to build structures in Scarborough Shoal. Last year China’s navy drove away Filipinos from the traditional fishing grounds well within the Philippine 200-mile exclusive economic zone but 800 miles from China’s coast.

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Law, not arms, must reign in domestic as well as international affairs, Supreme Court Justice Antonio T. Carpio says. That should go for China’s territorial claim over the entire South China (West Philippine) Sea. Three points stood out in Carpio’s talk at the Philippine Bar Association’s forum about the controversy:

• China’s claim, based on imagined historic right, is foggy.

It first came out with an 11-dash map, unilaterally delineating its sea borders, in 1947. The Kuomintang regime was then on the verge of rout by the Communists. Though just freed from Japanese rule, China was in civil war, and so could not have studied seriously its territorial stretch. A year after the Kuomintang fled to Taiwan in 1949, Beijing’s Communist rulers reduced the 11-dash map to nine dashes. They did not pursue the claim, apart from imposing made-up history in schools. Meantime, along with 165 states, China signed the 1982 UN Convention on the Law of the Sea, which came into force in 1994. With a rising navy in 1995 China annexed the Mischief Reef, within the Philippines’ 200-mile exclusive economic zone under UNCLOS, and outside of China’s. In 1998 Beijing enacted a baselines law in line with UNCLOS, but inserted a rider to include its supposed historic claims. Only in 2009, after Gloria Arroyo’s treasonous Palawan Sea joint exploration with Beijing, did China regurgitate its nine-dash map. Early this year Beijing again revised it to ten dashes, to encompass Taiwan via a pen stroke.

• China has no reason to claim the Scarborough Shoal.

Since the 18th century the seamark has been included in world and local maps as part of Islas Filipinas. It came by other names: Bajo de Masinloc, Panatag, Karburo, Panacol. When the Philippines too ratified the UNCLOS, the shoal fell within its 200-mile EEZ, way beyond China’s. In the 1950s-1990s Philippine and US warships and aircraft used the shoal for bombing practice and war games. Every time they did so, Philippine authorities formally alerted foreign capitals and passing vessels. Manila also built and maintained a lighthouse, duly registered with the World List of Lights. Beijing never spoke out. Last year Chinese frigates occupied the shoal and roped off Filipino fishermen. Chinese sailors are now priming to erect helipads and gun emplacements, as in Mischief Reef.

• China’s claim has no basis in international law.

The UNCLOS differentiates inhabitable islands from fully and partly submersible seamarks like shoals, atolls, reefs, rocks, banks, rises, and sandbars. Unlike the latter, an island can serve as base point to define a state’s EEZ. By mere domestic edict, Beijing’s 1998 baselines law cannot supersede international pacts and its obligation to the UNCLOS. That is why the Philippines brought the Scarborough and Mischief invasions for UN arbitration. The UNCLOS binds signatory-states to peaceful arbitration in lieu of military muscle flexing. Yet China refuses to join the mediation, and insists on “complete sovereignty” over the disputed waters. Affected as well by China’s claim are Taiwan, Vietnam, Malaysia, Brunei, and Indonesia.

After Carpio’s talk, China’s embassy third secretary squirmed to defend Beijing’s stance. The youngish lawyer stammered that:

One, because of their many points of friendship, Beijing and Manila must not quarrel over a small matter like Scarborough.

Two, China’s historic claim supposedly conforms to the UNCLOS.

Phooey! China may be exchanging goods and cultures with the Philippines. But it cannot be a friend, for it is stealing from its neighbor. And if Beijing is so sure about abidance with the UNCLOS, then why can’t it so demonstrate by participating in the arbitration?

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