Acting Secretary Enrique Manalo, Undersecretary Eduardo Malaya, Atty. Igor Bailen, other officials and employees of the Department of Foreign Affairs, distinguished guests, friends, a pleasant afternoon to everyone. Thank you for inviting me here this afternoon to join you in celebrating the Golden Anniversary of the Vienna Convention on the Law of Treaties. As you know, the most important source of international law are treaties. Treaties regulate relations between and among states. Treaties constitute the law between and among treaty states. Treaties must be observed faithfully between and among treaty states as expressed in the maxim pacta sunt servanda. Harmonious relations between and among treaty states can be maintained only if states uniformly apply and interpret treaties that regulate their relations. Treaties cannot operate to regulate relations and conduct of states if treaty states have different interpretations of treaties to which they are parties. There can be no effective dispute settlement between and among treaty states without uniform and universally accepted rules of treaty interpretation.
That is the function of the Vienna Convention – the treaty we celebrate today for its 50th year since its signing. The Vienna Convention is the common language used in applying and interpreting treaties so that states are on the same wavelength when they negotiate, conclude, apply, interpret and terminate treaties, enabling peace and stability in the world and the advancement of civilization in an orderly manner. The Vienna Convention is now deeply embedded in Philippine jurisprudence. The Vienna Convention has been cited, in both majority and minority opinions, in no less than 22 Supreme Court decisions that applied and interpreted treaties entered into by the Philippines. The most important example of the value of the Vienna Convention to the Philippines was the application of the Vienna Convention in the South China Sea Arbitration at The Hague. In its July 12, 2016 Award on the merits, the arbitral tribunal wrestled on what constitutes a rock which can sustain human habitation of its own so as to be to be entitled not only to a 12-NM territorial sea, but also to a 200-NM exclusive economic zone. A 12-NM territorial sea around a rock one or two inches above water at high tide is already so valuable that coastal states fight over its sovereignty. The surface area of the 12-NM territorial sea around a tiny rock in the middle of the South China Sea is about 155,000 hectares, more than twice the land area of Singapore of about 70,000 hectares, and more than twice the land area of Metro Manila of about 63,000 hectares.
A rock that is capable of human habitation of its own is entitled to a 200-NM exclusive economic zone. The surface area of the 200-NM exclusive economic zone around a rock capable of human habitation of its own is 20 times the 12-NM surface area of a rock entitled only to a 12-NM territorial sea. That means a rock capable of human habitation of its own can have a maximum exclusive economic zone of about 2.58 million hectares, 41 times larger the land area of Metro Manila or Singapore, or one-fourth the land area of Luzon. And of course, the state that has sovereignty over that habitable rock owns all the fish, oil, gas and other mineral resources within such huge maritime area consisting of the exclusive economic zone of the habitable rock. This was the issue when the arbitral tribunal considered whether Itu Aba, at 46 hectares the largest geologic feature in the Spratlys, was a rock capable or not capable of human habitation of its own. Of course, if Itu Aba were declared a rock capable of human habitation of its own, its 200-NM exclusive economic zone would largely overlap with the 200- NM exclusive economic zone of Palawan, which is situated at a distance of about 260-NM from Itu Aba. And the most telling consequence of such overlapping exclusive economic zones would be that the arbitral tribunal would have no jurisdiction over the maritime dispute in the overlapping maritime areas, since the dispute would turn into a maritime boundary delimitation to which China admittedly opted out of compulsory arbitration in accordance with UNCLOS.
The issue of whether to submit the status of Itu Aba for adjudication by the arbitral tribunal divided the Philippine lawyers involved in the arbitration. One group was certain that Itu Aba would be declared non-habitable following the ruling in Nicaragua v. Colombia where a geologic feature almost as large as Itu Aba was declared not capable of human habitation of its own despite the presence of potable freshwater well. The other group did not want to take the risk of Itu Aba being declared habitable which would result in the case, at least with respect to the overlapping exclusive economic zones, being dismissed for lack of jurisdiction by the tribunal. The President then, Simeon Aquino III, made a Solomonic decision: do not raise the status of Itu Aba as an issue in the prayer of the Statement of Claim, but discuss the status of Itu Aba in the Memorial. Thankfully, the arbitral tribunal considered the status of Itu Aba as impliedly raised as an issue when the Philippines claimed in its prayer that the arbitral tribunal confirm that the Philippines has a full 200-NM exclusive economic zone facing the South China Sea. And how did the arbitral tribunal decide whether or not Itu Aba was capable of human habitation of its own? Let me quote from the arbitral ruling of 12 July 2016: The critical element of Article 121 for the Tribunal is its paragraph (3), which provides “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”
In order to interpret this provision, the Tribunal must apply the provisions of the Vienna Convention on the Law of Treaties. The general rule of interpretation is set out in Article 31 of the Vienna Convention and provides that a treaty “shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Further, “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” shall be taken into account. Pursuant to Article 32 of the Vienna Convention, as supplementary means of interpretation, recourse may be had to the preparatory work of the treaty to confirm its meaning, or determine the meaning when it is otherwise ambiguous, obscure, or leads to a manifestly absurd or unreasonable result. Applying Article 31 of the Vienna Convention, the arbitral tribunal ruled that Itu Aba is not capable of human habitation of its own, and is entitled only to a 12-NM territorial sea. Itu Aba has no exclusive economic zone that can overlap with the exclusive economic zone of Palawan, and thus the arbitration did not raise any maritime boundary delimitation and consequently the arbitral tribunal had jurisdiction over the maritime issues raised involving the waters between the Spratlys and Palawan. In the Summary of its ruling, the arbitral tribunal interpreted Article 121 and concluded that the entitlements of geologic feature depend on “(a) the objective capacity of a feature, (b) in its natural condition, to sustain either (c) a stable community of people or (d) economic activity that is neither dependent on outside resources and not purely extractive in nature.” The arbitral tribunal explained that the exclusive economic zone was created for the benefit of people who reside and settle in an island as a community and who make the island their permanent home. If an island never had such a population in its history, it is probably because it is incapable of human habitation of its own. The arbitral tribunal’s interpretation, pursuant to the Vienna Convention, of a habitable island under Article 121 of UNCLOS has significantly reshaped the fortunes and economies of coastal states all over the world. Surprisingly, the greatest beneficiary of this interpretation is China. With the arbitral tribunal’s interpretation of a habitable island entitled to a 200- NM exclusive economic zone, coastal states that have sovereignty over small uninhabited islands all over the world can no longer claim exclusive economic zones for these islands. Clearly, many uninhabited islands will no longer be entitled to a 200-NM exclusive economic zones as previously claimed by the coastal states that have sovereignty over them. Consequently, the high seas in the oceans and seas of the world have vastly increased. In the high seas, there is freedom of fishing – all states, coastal or landlocked, have the right to fish in the high seas all over the world. China has the largest fishing fleet in the world and is clearly the number one beneficiary of the arbitral ruling in this regard.
Moreover, China, as a member of UNCLOS, can apply with the International Seabed Authority for a permit to explore and exploit the mineral resources in the seabed beyond the 12-NM territorial seas of these non-habitable islands anywhere in the world. China, along with a handful of countries, has the technology to mine the deep seabed. Whatever China lost in the South China Sea arbitration, in terms of fishing rights and mineral resources, it has more than recovered in other seas and oceans of the world. Incidentally, the United States, not being a member of UNCLOS, cannot apply with the International Seabed Authority for a permit to explore and exploit the deep seabed. Furthermore, the exclusive economic zones that the U.S. has claimed for its non-habitable islands in the Pacific Ocean are now part of the high seas where China’s vast fishing fleet can legally fish. The South China Sea arbitration, in particular the arbitral tribunal’s ruling of what constitutes a habitable island entitled to a 200-NM exclusive economic zone, will re-shape the direction of the Law of the Sea for decades to come. The Philippines is fortunate that the Vienna Convention was there to guide the arbitral tribunal in the interpretation of Article 121 of UNCLOS. China cannot complain because China is a state party to both UNCLOS and the Vienna Convention. The Vienna Convention, in the light of the overwhelming victory of the Philippines in the South China Sea arbitration, should reassure us to continue our faith and confidence in the rule of law in resolving peacefully our disputes with other states. Thank you and a pleasant day to everyone.