SC Justice Carpio on Maritime Dispute with China: 'We Need the World Behind Us'

Supreme Court Senior Associate Justice Antonio T. Carpio expressed optimism at a forum held February 26 at the Claire Isabel McGill Luce Auditorium that the United Nations-backed arbitral tribunal will render a favorable judgment on the case filed by the Philippines against China on its 9-dash lines claim illegal.

The 9-dash line of China plots what China claims to be its “national boundaries” from its land territory to the sea, extending to areas that fall within the Philippines’ exclusive economic zone (EEZ) and extended continental shelf (ECS).

China’s encroachment covers, among others, the Spratly Islands and Scarborough Shoal in the West Philippine Sea, restricting access to marine resources. The same 9-dash line is being contested by Brunei, Indonesia, Malaysia and Vietnam as it also similar gobbles up large areas of their respective EEZs and ECSs.

“All these acts of China, among so many others, demonstrate beyond doubt that China is claiming sovereignty, sovereign rights and jurisdiction to all the waters, fisheries, oil, gas, mineral resources, seabed and subsoil enclosed by the 9-dashed lines,” Justice Carpio lamented.

He said to resolve the maritime dispute, which has compromised regional security, the Philippines brought its case to the Permanent Court of Arbitration (PCA) at The Hague, invoking the United Nations Convention on the Law of the Sea (UNCLOS).

While China has ratified the UNCLOS, becoming bound by it, Justice Carpio said it does not recognize The Hague-based court authority and has refused to participate in arbitration.

After winning what many termed as “round one” of the case, following the PCA’s unanimous vote on its jurisdiction of the case filed by the Philippines against China and the admissibility of the Philippines’ claims, Justice Carpio said he is confident on a decision ruling the illegality of China’s 9-dash line claim.

But while the ruling would be favorable to the Philippines, Justice Carpio said there is no assurance that China, a signatory to the same UNCLOS invoked by the Philippines, would honor it.

“We need the world to rally behind us for China to follow the ruling… We need to use world opinion to pressure China to comply with the ruling,” he said.

The call of countries around the world for China to comply with the ruling of the international arbitral court may translate to serious implications on the economy and trade relations of China. Some countries may refuse to be engaged in China’s Maritime Silk Road, a strategic initiative to spur investment and collaboration between China and other countries. Others may consider limiting exports and imports.

Already, world support for compliance with arbitral decision has been articulated in three significant multilateral meetings. In April 2015, the Group of Seven (Canada, France, Germany, Italy, Japan, United Kingdom and United States) is issued a call on all states for “peaceful management or settlement of maritime disputes in accordance with international law… and to fully implement any decision rendered by the relevant courts and tribunals which are binding on them.” A similar resolution calling for “respect the eventual decision of UNCLOS” was issued by the European Parliament on EU-China relations in December 2015. And in the ASEAN-US Special Leaders’ Summit at Sunnylands, California in February 2016, the ASEAS heads of states and US President Barack Omaba reaffirmed in a joint resolution “the key principle of ‘Shared commitment to peaceful resolution of disputs, including full respect for legal and diplomatic processes, without resorting to the threat or use of force in accordance with universally recognized principles of international law and the 1982 United Nations Convention of the Law of the Sea.'”

Even the midst of China’s proclamations of the imperative of bilateral negotiations, which Justice Carpio said has been exhausted by the Philippine government, China has resisted from undertaking activities in contested waters. It has, instead, reclaimed, dredged and built seven islands within the Philippines and the contesting parties’ respective EZZs and ECSs.

The Philippines has aggressively protested against the actions of China, but China has remained unfazed. Justice Carpio said China has neglected diplomatic calls for restraint and has instead fortified its naval patrolling in the area, beefing up its maritime command, as it continues to construct airstrips, buildings, hangars, and radar and telecommunication towers.

So what is Chain’s grand design in the South China Sea?

“China’s grand design is to control the South China Sea for economic and military purposes. China wants all the fisheries, oil, gas and mineral resources within its 9-dash lines,” Justice Carpio said.

He explained that China already takes 50 per cent of the annual fish catch in the South China Sea, as more than 80 per cent of its coastal waters are already polluted. It is also the largest net importer of petroleum in the world. And with the South China Sea being rich in methane hydrates, Justice Carpio said China wants to secure all for itself.

He added that the contested 9-dash lines also enable China to utilize the South China Sea “as a sanctuary for its nuclear-armed submarines – free from surveillance by US submarine-hunting Poseidon airplanes or US nuclear attack submarines.”

In all its claims, China backs itself with no legal basis. Its main argument is the contested waters are historically part of China.

But Justice Carpio said even assuming that “historic rights” can be claimed in the EEZ, ECS or high seas, areas which under international law are owned by no country (but over which China claims ownership within its the 9-dashed lines), three conditions are to be satisfied: (1) the state actually exercises authority over the area where it claims historic rights; (2) the state exercised that authority continuously and for a long period of time; and (3) other states either acquiesced in or failed to oppose the exercise of such authority.

“China’s 9-dashed lines claim fails to satisfy any of these conditions,” Justice Carpio highlighted.

Maps and other archival materials, included those considered of great Chinese historical value, do not indicate China’s jurisdiction over the contested areas covered in its 9-dashed lines claim. Its specific claim to the Spratly Islands only started in 1935 – a contradiction to its proclamation that “Chinese activities in the South China Sea date back to over 2,000 years ago”.

In his presentation, Justice Carpio cited that even Taiwan, in its publication, Compilation of Historical Archives on the Southern Territories of the Republic of China, “using the extensive archives of the Kuomintang, the originator of the 9-dashed lines, has definitively debunked the PROC’s (China) claim that the 9-dashed lines were ‘formed in the long course of history,’ dating back to two thousand years ago.”

Unlike China, which new cartographic sketch of its boundaries shows alteration to accommodate its 9-dash lines, the Philippines has always been showcased in maps to include Spratly Islands within its territory.

A 1965 map of Southeast Asia by Venetian Vincenzo Coroneli, a Franciscan monk who arrived in the Philippines in 1578, encloses Spratly Islands within the jurisdiction of the Philippines. The same maritime jurisdiction was reinforced in the 1734 Murillo Velarde map of the Philippines and in succeeding maps that were developed over the course of history.

Justice Carpio said that before World War II, China’s southernmost defense perimeter was Hainan Island. And at that time, China did not have a single soldier or sailor stationed in any South China Sea island outside of Hainan Island. This changed right after the war.

According to Justice Carpio, China took over the Amphitrite Group of the Paracels and Itu Aba in the Spratlys following the defeat of the Japanese, moving China’s defense perimeter southward. In the following years, Justice Carpio narrated:

• 1974 – China forcibly dislodged the South Vietnamese from the Crescent Group of the Paracels.
• 1988 – China forcibly evicted Vietnam from Johnson South Reef, moving further south China’s defense perimeter in the Spratlys.
• 1995 – China seized Mischief Reef from the Philippines, just 125 nautical miles from Palawan and 594 nautical miles from Hainan.
• 2012 – China seized Scarborough Shoal from the Philippines, just 124 nautical miles from Luzon.
• 2013 – China seized Luconia Shoals from Malaysia, just 54 nautical miles from Sarawak’s coast.
• 2014 – China started island-building on the ricks and submerged areas in the Spratlys to construct air and naval bases.

With many considering the actions of China as a “bullying”, Justice Carpio said it is important to apply UNCLOS to the South China Sea dispute.

“If UNCLOS does not apply to the South China Sea dispute, as when China’s 9-dashed lines are allowed to gobble up the EEZs of coastal states as well as the high seas, then UNCLOS, the constitution for the oceans and seas, cannot also apply to any maritime dispute in the rest of the oceans and seas of our planet,” he explained.

Justice Carpio, who one of the members of the Philippine delegation to The Hague for the oral arguments on the country’s case against China, added: “The rule of the naval cannon will prevail in the oceans and seas of our planet, no longer the rule of law. There will be a naval arms race among coastal countries.”