By Jay L. Batongbacal

Source: Graphic prepared by Jay L. Batongbacal.

Philippine media went into a minor frenzy with the startling news that Manila purportedly offered Kuala Lumpur a quid pro quo in March: dropping the Philippine claim to North Borneo (Malaysia’s Sabah State) in exchange for Malaysian support for Manila’s arbitration case over the South China Sea. The media reports were quickly denied by the Philippines Department of Foreign Affairs, which noted the total absence of any reference to such a deal in the note that set off the firestorm. Recently, President Benigno Aquino III had to reiterate that his administration was not dropping the claim, prompting Malaysia to summon the Philippine Charge d’Affaires.

The note, which the Department of Foreign Affairs sent to the Malaysian Embassy in Manila, actually attempted to address previous strategic errors in handling the South China Sea disputes. The Philippines had objected when, in May 2009, Malaysia and Vietnam jointly submitted to the Commission on the Limits of the Continental Shelf (CLCS) a claim to an overlapping area of seabed more than 200 nautical miles (nm) from their shores, i.e. an extended continental shelf (ECS) in accordance with Article 76 of the UN Convention on the Law of the Sea. Vietnam also made a separate claim for another area off the Paracels. Significantly, both claims measured exclusive economic zones and continental shelves (EEZ/ECS) from mainland coastlines only, and completely ignored any islands in the Paracels and Spratlys. Both countries regarded them to be entitled only to 12 nm territorial seas.

Thus the submissions were clearly advantageous to the Philippines at the time. More importantly, a legal united front and common regional practice on the proper interpretation and application of UNCLOS in the South China Sea became possible: such treatment of the islands was consistent with the Philippines’ declared intention to apply the legal regime of islands under UNCLOS Article 121 to the Spratlys. Paragraphs 5(b) and 6 of Annex 1 of the CLCS Rules of Procedure also recognized that coastal States may legally detach the resolution of pending territorial claims from the scientific validation of ECS submissions. These could permit Vietnam and Malaysia’s ECS claim to be processed without prejudicing the Philippine territorial claim.

Ignoring technical advice, however, Manila issued Notes Verbale flatly protesting both submissions. It asserted that the claims “overlap with those of the Philippines” and asked the CLCS not to consider them “unless and until after” they had all resolved their disputes, but not followed by any initiative to even begin talks. On the joint submission particularly, the Philippines additionally objected “because of the controversy arising from the territorial claims on some of the islands in the area including North Borneo.” Worse, Manila did not object to China’s protest against these submissions (which included the depiction of the nine-dash line) until two years later.

With respect to Vietnam’s unilateral ECS submission, the Philippines did not reveal the exact basis of its objection. In the absence of an ECS claim of its own, this implies a vague claim to seabed as much as 300-600 nm away. As for the Vietnam-Malaysia joint ECS area, the blanket objection applies to seabed up to 450 nm away, across Malaysia and Brunei’s presumed EEZ/ECS. Taken together, these imply that Manila is reserving the option of declaring 200 nm EEZ/CS from its Kalayaan Islands Group within the Spratlys. Referencing North Borneo also irked Malaysia, which retaliated with its own note, and pointed out that previously it did propose that the Philippines join a trilateral submission, but Manila did not reciprocate.

Rather than bringing the smaller South China Sea littorals closer at a golden opportunity, Manila antagonized its two neighbors, created grounds for suspicion and distrust, and practically allied itself with China. Of course, Manila reverted once it felt the force of Beijing’s increasingly assertive policies. This partly explains some ASEAN members’ hesitation whenever the Philippines calls for a strong, united position vis-à-vis China on the disputes.

Manila’s more recent note tries to correct its error insofar as it affects its current diplomatic and legal positions against Beijing. Unfortunately, its language and tone provide little incentive for active cooperation. The request for “confirmation” of Philippine “understanding” of the submission is unnecessary: that the 200 nm zone emanates only from mainland coasts is plain, self-explanatory, and graphically illustrated in the publicized executive summaries. Stating that Hanoi’s and Kuala Lumpur’s response determines Manila’s next move suggests a non-conciliatory attitude, and also places the burden of responsibility on them. It is actually a disincentive to a favorable written response.

Instead of pushing the note, the Philippines should just act: understand and interpret the Vietnamese and Malaysian submissions at face value without need of “confirmation,” reach a deal for mutual non-objection to all their ECS claims, and make its own ECS submission with mutual non-prejudicial commitments for future negotiation and settlement of pending territorial disputes. De-linking the issue of North Borneo from the South China is consistent with Manila’s updated strategy of separating the issue of sovereignty over the islands and rocks from jurisdiction over maritime spaces.

Although such submission will surely be shelved by the Commission on account of China’s protests, it would clarify the legitimate basis for Philippine claims to seabed areas beyond 200 nm from the archipelago. More importantly, it would establish uniformity in practice and commonality of intentions among the smaller claimant states on the rule of law and proper interpretation and application of UNCLOS in the contentious region.

Mr. Jay L. Batongbacal is Associate Professor, University of the Philippines College of Law, and Director, University of the Philippines Institute for Maritime Affairs and Law of the Sea. He was recently affiliated with the East West Center in Washington D.C. as a U.S.-ASEAN Fulbright Initiative Visiting Scholar, conducting research on evolving US maritime security policies and their impact on the resort to international arbitration and the Rule of Law in the South China Sea disputes.