ABSTRACT
In recent months, it was widely reported 1 that the Philippine and Chinese governments had plans to conclude a joint development agreement (JDA) for Reed Bank, 2 an entirely submerged reef formation located in the northeast part of the Spratly Island group and within the Philippines’ 200 nautical mile exclusive economic zone (EEZ). These reports were met with both consternation and curiosity. The consternation was mainly due to the fact that in July 2016, the Philippines won a sweeping legal victory in the compulsory arbitration case 3 that it brought against China under Annex VII in relation to part XV of the United Nations Convention on the Law of the Sea (UNCLOS). It may be recalled that the Arbitral Tribunal invalidated China’s claim to “historic rights” in the South China Sea—the basis for its “Nine-Dash Line” policy—and declared the same to be inconsistent with the provisions of the UNCLOS. 4 Notably, the award also clarified the status of the various land features in the disputed area. It found that none of them were “islands” capable of generating their own EEZ, and that many of them were not even “rocks” that would entitle their claimant to a territorial sea. 5 Consequently, a number of the features analyzed by the Arbitral Tribunal were properly found to be within the Philippines’ EEZ and not subject to any possible Chinese entitlement. The ruling thus effectively affirmed the Philippines’ sovereign rights over resources within its UNCLOS-designated EEZ and continental shelf. The Arbitral Tribunal subtly yet unequivocally negated the existence of overlapping claims—a fundamental condition for joint development arrangements. Against this backdrop, a JDA relating to such areas might be seen as a negation by the Philippines of its own claim to exclusive sovereign rights. JDAs, after all, are traditionally entered into by states pending the settlement of potentially legitimate overlapping claims. Any future deal between the Philippines and China will thus have to be recognized as a purely political accommodation and not one that is justified by either Philippine or international law.
