This document summarizes the key points made by Rommel Banlaoi in his testimony to the Philippine Senate on issues related to Scarborough Shoal/West Philippine Sea, maritime zones bills, and archipelagic sea lanes bills: 1) While the Philippines can pass domestic laws, they only apply domestically and their impact internationally depends on consistency with international law and recognition by other states. 2) The territorial disputes in the South China Sea involve competing domestic laws and claims between states, so they can only be resolved through negotiation, arbitration, or war. 3) China's growing demand for fish and energy resources is driving its increasingly assertive actions in the South China Sea to protect claimed maritime rights

1. PHILIPPINE INSTITUTE FOR PEACE, VIOLENCE VIOLENCE
PHILIPPINE INSTITUTE FOR PEACE, AND TERRORISM RESEARCH
2nd Floor, CPDRI Room, Asian InstituteRESEARCH
AND TERRORISM of Tourism, University of the Philippines
Commonwealth Avenue, 7, West Crame,
No. 5, Road Diliman, Quezon City 1101 Philippines
San Juan, Metro Manila, Philippines 4333870
Telephone +632 9946972 Fax: +632
www.pipvtr.com
www.pipvtr.com
POSITION ON SCARBOROUGH SHOAL/WEST PHILIPPINE SEA
ISSUES, MARITIME ZONES BILLS AND
ARCHIPELAGIC SEA LANES BILLS
Rommel C. Banlaoi
Head, Center for Intelligence and National Security Studies (CINSS) of the
Philippine Institute for Peace, Violence and Terrorism Research (PIPVTR)
Delivered at the public hearing of the Committee on Foreign Relations, the
Philippine Senate, on 27 April 2012, at the Session Hall, 2nd Floor, Senate of the
Philippines, GSIS Bldg., Financial Center, Pasay City.
The Honorable Chairperson and distinguished members of this committee.
It is my pleasure to appear before you today to offer my scholarly insights on the
agenda of this public hearing, particularly in the light of the on-going standoff
with China in Panatag Shoal or Bajo de Masinloc, which the international
community calls Scarborough Shoal.
I am not a lawyer so I am not in the right position to talk about the legal
ramifications of the West Philippine Sea, Maritime Zones Bills and the
Archipelagic Sea lanes Bills. But as a scholar of international politics and being
the Head of the Center for Intelligence and National Security Studies (CINSS) of
the Philippine Institute for Peace, Violence and Terrorism Research (PIPVTR), an
independent, non-government research organization, I am keenly following these
issues not only for research and instructions but also for policy research and
development. I stand before you today to share my humble thoughts on the
present agenda in aid of legislation.
Let me start by stressing that the concept of West Philippine Sea and bills on
Philippine Maritime Zones and Archipelagic Sea Lanes are not only domestic
issues but they are also international concerns with profound national and
regional security implications. Unless we have a broad understanding of the
international politics surrounding these issues and concerns, using a new name
and passing domestic laws can just be moot and academic, if not an exercise in
futility.
The Philippine government has adopted the West Philippine Sea (WPS) to refer
to the body of waters that is deemed part of Philippine territory, which is located
West of our Archipelago. The main intention of the Philippine government in
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2. using WPS is to assert our territorial claim in our disputed maritime zones. The
use of the South China Sea (SCS), the government asserts, has subliminal
message that this body of waters belongs to China; thus there is a need to change
the name to convey the stand of the Philippines. Vietnam calls it East Sea (ES).
So, why don’t we call it WPS indeed? But what’s in a name?1
The use of WPS, SCS or ES is just a geographic description. While it has
psychological and propaganda value for states using these names, they are just
labels devoid of any legal meaning that can be used for any form of ownership.
The use of the Indian Ocean does not mean that this water belongs to India.
The passage of Philippine Archipelagic Baselines Law in 2009 and the proposed
Maritime Zones bills and the Archipelagic Sea Lanes bills are part of the
Philippine government’s legal offensives to assert our territorial claims in this
disputed body of waters in accordance with international law. With limited
military capability to assert our claim, the most logical and pragmatic option for
the Philippines is to really go legal. Even if, for the sake argument, we have
sufficient military capability to defend our claim, going to war to settle this kind
of territorial disputes is counter-productive for national and regional security.
Based on my understanding of international politics, laws passed domestically
only have domestic applications for internal law enforcement purposes. They
have international applications only if they are consistent with international laws
and are recognized by the international community.
Since I am not an international lawyer, I must admit my limitations to discuss the
legal intricacies of these issues, particularly the detailed provisions of Maritime
Zones and Archipelagic Sea Lanes bills. I would like to underscore, however, that
if domestic laws of one sovereign state compete with and even being challenged
by domestic laws of other sovereign state, particularly if it pertains to territorial
ownership, then we have an inter-state problem. In this case, the problem can be
solved either through bilateral negotiation (multilateral if it involves more than
two states), international arbitration, or, as a last resort, war.
The last option is definitely out of Philippine agenda. But if the Philippines is
attacked militarily because of territorial disputes with our neighbors, then we can
invoke the Mutual Defense Treaty (MDT) with the United States. But this is an
ugly scenario that everyone does not want to happen. Even if we invoke the MDT,
retaliation from the U.S. is not automatic, as it needs to pass through the
constitutional processes of the U.S. Congress.
The first option apparently puts the Philippines in a very disadvantaged position
if the negotiation is done bilaterally with China because of the asymmetry of our
relations. But this is a pragmatic, albeit difficult, option. The Philippines wants
1For
my detailed take on this issue, see Rommel C. Banlaoi, “West Philippine Sea: What’s in a
Name?”, Newsbreak (15 June 2011).
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3. to multilateralize the problem through the Association of Southeast Asian
Nations (ASEAN). But the grim reality is that ASEAN does not have common
position on the South China Sea problem, particularly in the context of regional
power dynamics and intra-ASEAN territorial disputes.
The Philippine government regards the second option as our best option –
international arbitration. But international arbitration can only occur if the
other party is willing to put the issue to this process. Since international
arbitration is a creature of a “contract” that involves all parties concerned, doing
it unilaterally is a gargantuan mission.
As a sovereign state, the Philippines is entitled to pass any domestic laws
pertaining to our territorial waters, maritime zones and archipelagic sea lanes
that we really deem necessary to promote our national interests. China also
passed its own domestic law in 1992 declaring almost 80% of the South China
Sea as part of its territorial waters and contiguous zones.
The Philippines already passed its Archipelagic Baselines Law in 2009 and we are
not prevented to pass into law the Maritime Zones and Archipelagic Sea Lanes
bills. It is now our call, however, if we have the means and wherewithal to
enforce our laws and make violators accountable to these laws.
What begs the question at than in the light of the standoff in the Scarborough
Shoal is why Chinese and other nationalities continue to fish in what we call our
waters?
For us, other nationalities are not fishing but poaching in our waters. We have
laws to make poachers accountable.
However, these waters have been traditional fishing grounds of many people of
various nationalities for centuries. Thus, preventing them to fish on the bases of
our domestic laws is really a tall order – it requires adequate resources and a
strong political will.
The situation is complicated by the fact that other nations claim that the waters
that we call ours also belong to them. That is why we have disputes in the WPS,
which we want to settle through international laws.
For us to understand the complex territorial disputes in the South China Sea,
particularly in the context of the on-going standoff between China and the
Philippines in the Scarborough Shoal (and how to deal with the situation and
peacefully resolve the standoff), we also need to understand the relevance of
fishing in the maritime territorial disputes.
Fishermen of various national origins are attracted to the South China Sea
because of its very rich marine resources. A recent study shows that fish stocks in
the South China Sea “are a multi-billion-dollar industry”, which accounts for “as
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4. much as one-tenth of the global catch.”2 Since fish protein represents 22 percent
of the average Asian dietary needs (much higher to the global average of 16
percent), fish demands from littoral states in the South China Sea grow.3
China, particularly, has already demonstrated its increased demands for fish.4
The increased demand for fish is directly proportional to the increased income of
Chinese citizens resulting from its phenomenal economic growth.
The World Bank (WB) has declared China in 2011 as the world’s second largest
economy, next to the United States. If its current growth of at least 8 percent
annually continues, the International Monetary Bank (IMF) forecasted that
China could be the world’s largest economy by 2016.5 Thus, China’s current
fishing behavior in the South China Sea is dictated by its growing demand for
these resources resulting from the increased purchasing power of Chinese
consumers.
China is also increasing its naval and maritime law enforcement capabilities in
order to protect its “maritime defense” (haifang) and “maritime rights and
interests” (haiyang quanyi or haiquan) in the South China Sea and other waters
in Asia (such as Senkaku/Diaoyu Island in the East China Sea in conflict with
Japan and the Yellow Sea in conflict with South Korea). China regards these
waters as part its territory.
I have no more time to discuss in detail the military capabilities of China at
present. But suffice for me to say that that People’s Liberation Army Navy
(PLAN) has flirted with the idea of a new type of naval campaign that encourages
“attacks against coral islands and reefs” (dui shanhu daojiao jingong zhanyi).
Naval experts say that this campaign scenario “appears to be tailored to the South
China Sea disputes where China might consider attacking islands and reefs held
by other claimants.”6 It is not year clear, however, whether this idea has been
adopted as an official military campaign strategy of the PLA. My point is that the
idea has crossed their minds.
2PatrickM. Cronin, ed., Cooperation from Strength: The United States, China and the South
China Sea (Washington, D.C.: Center for a New American Security, January 2012), p. 55.
3Ibid., p. 90.
4PatrickM. Cronin, “China’s Global Quest for Resources and Implications for the United States”
(Testimony before the U.S.-China Economic and Security Review Commission on 26 January
2012).
5 “IMF Report: China Will be the Largest Economy by 2016” (25 April 2011) at
http://www.marketplace.org/topics/business/imf-report-china-will-be-largest-economy-2016.
6PhillipC. Saunder, Christopher Yung, Michael Swane and Andrew Nien-Dzu Yang, eds., The
Chinese Navy: Expanding Capabilities, Evolving Roles (Washington DC: Center for the Study of
Chinese Military Affairs at the Institute for National Strategic Studies of the National Defense
University, 2011), p. 50.
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5. Chinese fishermen in the South China and the Scarborough Shoal do more than
fishing. Observers say that fishing activities “are civilian instruments of power
that help stake out legal claims and establish national maritime rights.”7 Thus,
the Chinese government protects their fishermen to promote its concept of
maritime rights and stake out its legal maritime claims. China’s current behavior
in the Scarborough Shoal is part of this overall power projection. According to a
report:
Chinese officials are deliberately using civilian maritime law-
enforcement vessels, rather than the People’s Liberation Army
Navy—to enforce China’s maritime rights and fishing laws. Whereas
China resorted to using warships over Mischief Reef territorial
disputes in the 1990s, the recent assertiveness of China in these
waters has been prosecuted largely with civilian instruments of
power.8
Aside from fish, China is also convinced to assert its position in the South China
Sea because of its increasing and incessant demand for oil.
It is estimated that the potential oil resources of the South China Sea is 213 Bbbl.
There are conflicting claims, however, about the size of natural gas and oil
deposits in the area. According to US Geological Survey, about 60% to 70% of
the hydrocarbon resources in the South China Sea are gas.9
A research conducted by Chinese experts reveals that that the total gas resources
of the South China Sea can reach 900 Tcf (Total Cubic Feet) with an annual
production of 1.8 Tcf.10 Chinese geologists have recently detected 'super-thick' oil
and gas-rich strata in the South China Sea and also identified 38 offshore oil and
gas basins in the area.11
7Cronin, “China’s Global Quest for Resources and Implications for the United States”, p. 2.
8Ibid., p. 3.
9Global Security, “South “China Sea Oil and Natural Gas” at
http://www.globalsecurity.org/military/world/war/spratly-oil.htm <accessed on 4 January
2011>.
10 Ibid.
11 “Huge Source of Oil, Gas Found in South China Sea”, Sify News (17 January 2011) at
http://www.sify.com/news/huge-source-of-oil-gas-found-in-south-china-sea-news-
international-lbrokhcdigb.html <accessed on 7 February 2011>.
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6. Because of reported oil and gas resources, all claimants in the South China Sea
have existing gas and oil exploration activities in the area.12
China has exploration project in Vanguard Bank, which is proximate to
Indonesia’s Natuna Gas Field. Vietnam has projects Dai Hung and Blue Dragon
Fields that are adjacent to disputed territories in the South China Sea. The
Philippines has natural gas power project in Malampaya, which is close to
disputed Spratly group of islands. The Philippines also has oil development plans
in the Reed Bank that is being contested by China.
Malaysia, which controls disputed reefs located in oil rich portion of the South
China Sea, has begun its natural gas production from Angsi Field that is expected
to produce 65,000 b/d of oil and 450 MMscfd of gas. Brunei has exploration
projects in Louisa Reef that is also being claimed by Malaysia. To avoid conflicts
and create a relationship of amity, Brunei and Malaysia decided to enter into
joint oil exploration projects in Louisa Reef. Brunei also explored the possibility
of joint oil exploration with China considering that China buys an average of
20,ooo barrels of oil daily from Brunei.13
China has, in fact, recently announced its plan to step up oil and natural gas
exploration in the South China Sea by spending an average of 500 million Yuan
($75 million) a year in the next two decades in order to meet the country’s
growing imported energy needs, which in 2010 already reached 55 per cent of
total domestic consumption.14 It is forecasted that 60% of China’s oil
consumption will be imported by 2020 making gas and oil exploration in the
South China Sea necessary to reduce dependence on oil imports.
Fishy and oily issues currently propel the assertive behavior of China in the South
China Sea. Now, how can we respond to a more assertive China?
Passing our bills on maritime zones and archipelagic sea lanes will not alter
China’s assertive behavior.
While we believe that passing these bills will strengthen our territorial claims,
they will, however, not yet solve our problems in the WPS because overlapping
claims remain. While we can execute our laws in our “non-disputed territories”,
executing them in “disputed territories” will be a huge challenge. Even if these
laws are consistent with existing international laws, no international law is self-
executing.
12See Craig Snyder, “The Implications of Hydrocarbon Developments in the South China Sea” at
http://faculty.law.ubc.ca/scs/hyd.htm <accessed on 8 February 2011>.
13Goh de No, “Brunei Open to Joint Exploration with China”, The Brunei Times (3 February
2011).
14“China to Increase Expenditure on Oil, Gas Exploration”, The Nation (25 January 2011) at
http://thenationonlineng.net/web3/business/energy/25742.html <accessed on 7 February
2011>.
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7. International law is not like domestic law. It “differs dramatically in enforcement
and adjudication. On enforcement, there is no executive to make a state accept a
court decision. International politics is a self-help system. In the classic ways of
international law, enforcement was sometimes provided by the great powers.”15
In other words, international politics is still in the state of anarchy where there is
no supreme authority above the sovereign state. Conflicts among states are
settled either through war or diplomacy. In our conflict with China on the WSP
and Scarborough Shoal, our only option is to pursue the diplomatic track and
settle this peacefully.
Our pursuit of diplomacy with China can only work if we refrain from using
words that hurt feelings such as “bully”, “aggressive”, “provocateur”, and the like.
We can stand firm in our claims by using more constructive words because
conflicts and cooperation in international politics are also products of social
constructions.
Friends and foes in international politics are what states make of it. If we call
China a bully, then China will be a bully. If we call China a responsible power,
China will be pressured to act that way. This is not naiveté. This is handling the
situation constructively.
Dragging the U.S. into our bilateral conflicts with China can only complicate
things. The Philippines can enlarge our voice in ASEAN if ASEAN can come out
with a common position.
We can use the international community to get the sympathy of other states. We
can invoke international laws to prove our case before the community of nations.
But at the end of the day, the reality of international politics still prevails. The
reality dictates that in our present circumstances, the only pragmatic option for
us is to patiently convince China in a bilateral way that peaceful cooperation in
the South China Sea is more beneficial than prolonging the standoff and dragging
the Philippines and other claimants into costly conflict. For example, we can
encourage China to enter into joint maritime patrols of the disputed waters in
order to promote sustainable fishing practices in the South China Sea.
China may have the military and economic powers to assert its claims in the
Spratlys. The Philippines can use the power of ideas to tame China and find just
and lasting solution to the South China Sea problem.
Our on-going dispute with China on WPS is just one aspect of our relations with
China. Beyond these disputes, our relation with China is productive. China is the
15Joseph S. Nye, Understanding International Conflicts: An Introduction to Theory and History,
7th Edition (Pearson Longman, 2008).
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8. Philippines’ second largest source of official development assistance, third largest
trading partner and fourth largest source of foreign tourists.
The years 2012 and 2013 have been declared as years of friendly exchanges
between the Philippines and China. Let us not allow the disputes in the WPS and
the standoff in the Scarborough Shoal destroy this friendship. Let us talk to China
and remind China that the Philippines is a friend and we deserve to be treated
that way.
Please accept my sincere appreciation for extending to me this rare opportunity
to impart my humble thoughts today.
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