THE RULE OF LAW IN THE WEST PHILIPPINE SEA DISPUTE

(Publication Version)

Speech delivered before the Philippine Bar Association

29 August 2013

Justice Antonio T. Carpio

In the 17th century, England, Spain and Portugal, the naval

superpowers of the day, claimed ownership of the oceans and seas they
discovered, and enforced their claims through the barrel of the naval
cannon. In 1609, Hugo Grotius, the father of international law, argued
in his classic Mare Liberum (The Free Sea) that the oceans and seas
belonged to all mankind and no nation could claim them as its own.
After over a century of battle between those who insisted on ownership
of the oceans and seas and those who fought for freedom of the oceans
and seas for all mankind, Grotius’ idea eventually prevailed and became
part of international law. It also laid the foundation for the law of the
sea.

In this the 21st century, China, Asia’s rising regional naval power,
is claiming ownership by historical right to almost 90% of the South
China Sea. China’s claim, represented by its 9-dashed line map, echoes
the 17th century maritime claims of the naval superpowers of that era.
China is enforcing its claim through its rapidly growing naval fleet. If
left to stand, China’s claim will bring the world back to the turbulent
maritime era 400 years ago, when nations claimed the oceans and seas
and maritime claims were settled through the naval cannon, not through
the Rule of Law.

What is the dispute in the West Philippine Sea?

China claims “indisputable sovereignty” over all the waters,

islands, reefs, rocks, seabed, minerals, and living and non-living
resources falling within its 9-dashed line claim in the South China Sea.
The 9-dashed line area comprises almost 90% of the total area of the
South China Sea. China’s 9-dashed line claim encroaches on 80% of
the Philippines’ 200-nm exclusive economic zone (EEZ) and 100% of
its 150-nm extended continental self (ECS) facing the South China Sea
- what the Philippines calls the West Philippines Sea. China’s 9-dashed
line claim has similar effects on the EEZs and ECSs of Vietnam,

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Malaysia, Brunei and Indonesia facing the South China Sea. The
countries most adversely affected by China’s 9-dashed line claim, in
terms of the size of the area encroached by the 9-dashed line claim, are
the Philippines, Vietnam, Malaysia, Brunei and Indonesia, in that order.

Is there an international law that governs the resolution of the

West Philippine Sea dispute?

The 1982 United Nations Convention on the Law of the Sea, or

UNCLOS, which entered into force in 1994, governs the conflicting
maritime claims in the South China Sea. All the claimant states in the
South China Sea dispute, including the Philippines and China, have
ratified UNCLOS. UNCLOS is the Constitution for the world’s
oceans and seas. UNCLOS codified the then existing customary
international law of the sea, created novel entitlements in favor of
coastal and landlocked states, and adopted a compulsory dispute
settlement mechanism to insure that there is a final authoritative body to
interpret and apply its provisions.

UNCLOS has been ratified by 165 states, comprising an

overwhelming majority of the members of the United Nations. For this
reason, even the novel maritime entitlements under UNCLOS in favor
of coastal and land-locked states, which maritime entitlements have
been consistently affirmed by international tribunals since 1994, now
form part of customary international law. Even non-signatory states, as
well as signatory states that later withdraw from UNCLOS, are bound
by these maritime entitlements.

UNCLOS governs only maritime entitlements, maritime space and

maritime disputes. The maritime entitlements of states - the territorial
sea, EEZ and ECS and their resources – emanate and are drawn only
from baselines on continental land or islands. UNCLOS provides for a
compulsory dispute settlement mechanism, subject to certain types of
disputes that states are allowed to exclude from compulsory arbitration.
All states that ratified UNCLOS bound themselves in advance to this
compulsory dispute settlement mechanism. The Philippines and China,
having ratified UNCLOS, are bound by this compulsory dispute
settlement mechanism.

UNCLOS does not govern territorial sovereignty disputes over

land or land features in the oceans and seas. Territorial sovereignty

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disputes over land or land features - that is, islands, reefs and rocks
above water at high tide - are governed by the rules and principles of
general international law. An international tribunal can acquire
jurisdiction over territorial sovereignty disputes only with the consent of
the states that are parties to the particular dispute, in the absence of a
treaty binding them in advance to the jurisdiction of such tribunal. There
is no such treaty between the Philippines and China.

In short, any maritime dispute between the Philippines and China

is subject to compulsory arbitration under UNCLOS, except for the
disputes that China has excluded from compulsory arbitration in
accordance with UNCLOS. In contrast, the territorial sovereignty
dispute between the Philippines and China over land and land features is
not subject to compulsory arbitration.

What is the right or entitlement of the Philippines under

international law that is being violated by China?

Under UNCLOS, every coastal state is entitled as a matter of

international law to a 200-nm EEZ, plus an additional 150-nm ECS
where applicable, drawn from baselines on continental land or islands.
In lieu of this additional 150-nm ECS, a coastal state may adopt an ECS
of up to 100-nm seaward from the 2,500 meter isobath. This legal
maritime entitlement is one of the most important reasons why
developing coastal states approved UNCLOS. Without this important
legal maritime entitlement there might have been no UNCLOS. In case
of overlapping EEZs or ECSs, the opposing or adjacent coastal states
shall negotiate in good faith an equitable maritime boundary.

Also, land-locked states joined UNCLOS for two reasons: first,

the area of the sea beyond the EEZ of a coastal state, called the high
seas, is open to fishing for all states, whether coastal or land-locked; and
second, the seabed and its minerals beyond the ECS of a coastal state is
declared the common heritage of mankind - belonging to all states,
whether coastal or land-locked.

China’s 9-dashed line claim negates, and thus violates, the

Philippines’ legal entitlement under UNCLOS to an EEZ and ECS.
China’s 9-dashed line claim also negates, and thus violates, the right of
all states on this planet, including the Philippines, to fish in the high
seas or the area beyond the EEZ of a coastal state. China’s 9-dashed

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line claim furthermore negates, and thus violates, the right of all states
on this planet, including the Philippines, to the seabed and its mineral
resources beyond the ECS of a coastal state. Finally, China’s claim of
“indisputable sovereignty” to areas of the South China Sea beyond the
EEZs of coastal states violates the prohibition under UNCLOS against
states subjecting the high seas to their sovereignty.

What is the basis of China’s 9-dashed line claim?

China anchors its 9-dashed line claim on so-called “historical

rights.” However, China admits that its 9-dashed line claim was first
included in an official Chinese map only in 1947 during the
Kuomintang Government. In 1998, China enacted its Exclusive
Economic Zone and Continental Shelf Law to affirm its sovereign rights
and jurisdiction over its EEZ and ECS under UNCLOS. A provision in
this 1998 law states, “this Act shall not affect the historical rights of the
People’s Republic of China.” This 1998 law is the first official
reference in a Chinese law to China’s “historical rights” to maritime
areas outside its EEZ and ECS. However, the rights of a state under
international law cannot be enlarged by its domestic legislation, but only
by customary international law or by a convention like UNCLOS.

China’s 9-dashed line claim was originally represented by 11

dashes in the 1947 Chinese map, then reduced unilaterally in 1950 to 9
dashes without explanation after the Communists ousted the
Kuomintang from the mainland. In January this year China released a
new official map adding a 10th dash on the eastern side of Taiwan.
China’s claim was ambiguous from the start as China failed to explain
its scope until January this year. Moreover, until now China has never
revealed the exact coordinates of its 9 or 10-dashed line claim, and
neither has China explained the basis under international law for its
claim.

China formally announced to the international community its

claim only in 2009 when it submitted to the United Nations a map
depicting its 9-dashed line claim. This map, showing no coordinates of
the 9 dashes, was appended to a note verbale China lodged to protest
Vietnam and Malaysia’s joint submission of their ECSs. With this map,
China claimed “indisputable sovereignty” over the islands and “adjacent
waters” within the enclosed area, as well as sovereign right and
jurisdiction over the “relevant waters,” seabed and subsoil within the

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enclosed area. China did not explain the meaning of the words
“adjacent waters” and “relevant waters,” which are not used in
UNCLOS. China thus failed to clarify the ambiguity of its 9-dashed
line claim. China’s submission of its 9-dashed line claim to the United
Nations was, of course, promptly protested by other claimant states.

China has always been ambiguous about the scope of its 9-dashed
line claim – whether it is claiming only the islands within the 9-dashed
line area, or whether it is also claiming all the waters and resources
within the 9-dashed line area beyond the applicable maritime zones.
Even Chinese scholars on the law of the sea are divided as to whether
the 9-dashed line claim includes all the waters within the area,
comprising almost 90% of the South China Sea. China’s incumbent
judge in the International Tribunal for the Law of the Sea, Zhiguo Gao,
wrote in 1994 that the 9 dashes merely identify the islands owned by
China within the enclosed area and do not represent a claim to all the
waters and resources within the enclosed area.

In January this year China appears to have clarified at least the

scope of its claim by issuing a new official map describing 10 dashes on
the map as its “national boundaries.” By using the term “national
boundaries,” China is apparently claiming everything within these
boundaries as part of its national territory. If so, China has clarified
only this year that it is claiming all the waters, islands, reefs, rocks,
living and non-living resources, the seabed and the minerals found
within the previous 9, now 10-dashed line area. This is consistent with
the aggressive actions of Chinese surveillance ships in harassing survey
vessels of Vietnam and the Philippines exploring for oil and gas in their
own EEZs that overlap the waters enclosed by the 9-dashed lines, even
if the waters are outside the maritime zones of any disputed island and
outside the EEZ or ECS of China.

Still, China has not explained the basis under international law of
its “historical rights” to the 9-dashed line claim. China has not released
an official paper or document explaining such “historical rights,” and
the justification for such “historical rights” under international law.
China has refused to defend its 9-dashed line claim before an
international tribunal on the law of the sea. However, on its face alone
the 9-dashed line claim has absolutely no basis under international law.

First, UNCLOS extinguished all historical rights of other states

within the 200-nm EEZ of the adjacent coastal state. That is why this

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200-nm zone is called “exclusive” – no state other than the adjacent
coastal state can exploit economically its resources. Fishing rights that
other states historically enjoyed within the EEZ of the adjacent coastal
state automatically terminated upon the effectivity of UNCLOS.
Moreover, UNCLOS prohibits states from making any reservation or
exception to UNCLOS unless expressly allowed by UNCLOS. Any
reservation of claims to “historical rights” over the EEZ or ECS of
another coastal state is prohibited because UNCLOS does not expressly
allow a state to claim “historical rights” to the EEZ or ECS of another
state. In short, UNCLOS does not recognize “historical rights” as basis
for claiming the EEZs or ECSs of other states.

The few cases where the waters beyond the territorial sea were
still treated as internal waters because of “historical rights” all happened
before the advent of UNCLOS, when the breadth of the territorial sea
was still three miles. These cases involved deeply indented bays, like
the Chesapeake Bay bordering Maryland and Virginia in the United
States, or deeply indented gulfs like the Gulf of Fonseca in Central
America bordering Honduras, Nicaragua, and El Salvador. These bays
and gulfs are adjacent to the coast and have long been accepted by other
states as internal waters. With UNCLOS, the territorial sea has been
extended to 12-nm, and a 200-nm EEZ has been granted to coastal
states, removing the need for a coastal state to invoke “historical rights”
to exclude other states from its deeply indented bays or gulfs. In none
of these few cases has “historical rights” been invoked to claim a non-
adjacent area beyond 200-nm from the coast, or to claim an entire or
nearly entire sea bordering several states.

Second, under UNCLOS the term “historic bays” refers to internal

waters, and the term “historic titles” refers to territorial seas. A state can
claim “historical rights” over waters only as part of its internal waters or
territorial sea. There is no freedom of navigation and no freedom of
over-flight in internal waters or territorial sea. There is a right of
innocent passage for ships in the internal waters and territorial sea.

The South China Sea, beyond the 12-nm territorial sea of coastal
states, has never been considered as the internal waters or territorial sea
of any state. Since time immemorial, ships of all nations have exercised
freedom of navigation in the South China Sea. Likewise, since the time
airplanes flew across the seas, aircraft of all nations have exercised
freedom of over-flight over the South China Sea. If the South China
were the internal waters or territorial sea of China, then no state could

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have exercised freedom of navigation and freedom of over-flight over
the South China Sea. Indeed, China has stated that there is freedom of
navigation and freedom of over-flight in the South China Sea, an
admission that the South China Sea does not constitute its internal
waters or territorial sea.

China’s 1992 Law on Territorial Sea and Contiguous Zone

declares a 12-nm territorial sea measured from its baselines. Since
China’s own law limits its territorial sea to 12-nm from its baselines,
China cannot claim the waters within the 9-dashed line map as its
territorial sea. The waters within the 9-dashed line claim cannot also be
considered internal waters of any state because they are in the open sea
bordering seven coastal states. The South China Sea falls under the
UNCLOS definition of a semi-enclosed sea because it consists “entirely
or primarily of the territorial seas and EEZs of two or more States.”

Since the time that Grotius’ idea of the free sea became part of
international law, no nation could appropriate or claim “indisputable
sovereignty” to any part of the oceans and seas beyond its territorial sea
or beyond what other states recognize as its internal waters. This is
reflected in UNCLOS, which only grants a coastal state specified
sovereign rights and jurisdiction over its EEZ and ECS, and expressly
prohibits any coastal state from subjecting the high seas to its
sovereignty.

Thus, the waters enclosed by China’s 9-dashed line claim are

neither internal waters nor territorial sea of China. The waters cannot
also form part of China’s EEZ or ECS because they are not drawn from
China’s baselines and are beyond the limits of China’s EEZ and ECS as
drawn from China’s baselines. In short, China’s claim to the waters
enclosed by the 9-dashed line claim does not fall under any of the
maritime zones recognized by international law or UNCLOS – namely,
internal waters, territorial sea, EEZ, and ECS - that could be claimed by
a coastal state. Only China seems to know under what maritime zone
the 9-dashed line waters fall, but China is not telling the world except to
claim “indisputable sovereignty” over such waters by “historical rights.”

Third, under the general principles and rules of international law, a

claim of “historical rights” to internal waters or territorial sea must
satisfy four conditions. One, the state must formally announce to the
international community such claim to internal waters or territorial sea,
clearly specifying the nature and scope of such claim. Two, the state

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must exercise effective authority, that is, sovereignty, over the waters it
claims as its own internal waters or territorial sea. Three, such exercise
of effective authority must be continuous over a substantial period of
time. Four, other states must recognize, tolerate or acquiesce in to the
exercise of such authority.

China fails to comply with any of these four conditions. China

officially notified the world of its 9-dashed line claim only in 2009. Not
a single country in the world recognizes, respects, tolerates or
acquiesces in to China’s 9-dashed line claim. China has never
effectively enforced its 9-dashed line claim from 1947 to 1994 when
UNCLOS took effect, and even after 1994 up to the present. Thus,
under the general principles and rules of international law, China cannot
claim “historical rights” that pre-dated UNCLOS. Even assuming, for
the sake of argument, that China has such “historical rights,” the entry
into force of UNCLOS in 1994 extinguished such rights. Under
UNCLOS, a state cannot claim any “historical right” to the EEZ or
ECS of another state.

In the 2002 Asean-China Declaration on the Conduct of Parties

in the South China Sea, China agreed that all claimant states shall
resolve their disputes “in accordance with universally recognized
principles of international law, including the 1982 UN Convention on
the Law of the Sea.” China did not state that “historical rights,” or any
other circumstance, should be a factor in resolving the disputes. China
thus agreed that only international law, in particular UNCLOS, should
govern the resolution of the disputes in the South China Sea.

Clearly, there is nothing “historical” or “right” about China’s 9-

dashed line claim because it is fairly recent, without fixed coordinates,
ambiguous even to its own legal scholars, inconsistent with its own
national law, contrary to the general principles and rules of international
law, contrary to UNCLOS, contrary to the Asean-China DOC, and still
evolving as recently as this year. Not a single state in the world
recognizes, tolerates or acquiesces in to China’s 9-dashed line claim.
By asserting their own claims to parts of the waters enclosed by China’s
9-dashed line claim, the other claimant states actually oppose and
contest China’s 9-dashed line claim.

What is China’s offer to jointly develop the disputed areas?

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 China has been dangling to the Philippines and other claimant
states its offer to jointly develop the disputed areas while shelving the
sovereignty issues. This joint development offer originated from Deng
Xiaoping’s three-part guideline: sovereignty belongs to China, shelve
the disputes, and pursue joint development. There are at least three
problems to this offer.

First, China wants to jointly develop the EEZ of the Philippines

but refuses to jointly develop China’s own EEZ. In effect, China is
saying to the Philippines, what is exclusively your economic zone
belongs to both of us, but what is exclusively our economic zone is ours
alone, and if you do not agree, our warships will be there to prevent you
from developing your exclusive economic zone.

Second, as explained by Chinese officials and scholars, China’s

offer of joint development is subject to the precondition that
participating coastal states must first expressly recognize China’s
“indisputable sovereignty” under its 9-dashed line claim. This
precondition effectively means that once a state agrees to joint
development, it must not only vacate any island it possesses in the
Spratlys and turn over the same to China, it must also renounce any
maritime claim within the 9-dashed line area. This precondition
demanded by China is obviously inconsistent with its offer to shelve the
sovereignty issue.

Third, if the Philippines agrees to China’s joint development offer,

the Philippines will in effect give up its exclusive “sovereign right and
jurisdiction” to exploit all the living and non-living resources in its own
EEZ. The Philippines will also give up its exclusive right to exploit the
mineral resources in its own ECS. The bottom line is that China’s joint
development offer will negate the maritime entitlements of the
Philippines under UNCLOS. This is constitutionally impermissible
because our 1987 Constitution mandates, “The State shall protect the
nation’s marine wealth in its archipelagic waters, territorial sea and
exclusive economic zone, and reserve its use and enjoyment exclusively
to Filipino citizens.”

Naturally, not a single claimant state has agreed to China’s joint

development offer. China’s response to the negative reaction of other
claimant states to its joint development offer is to harass the ships of
other claimant states exploring for oil and gas within their own EEZs.
In May 2011, Vietnam protested that Chinese surveillance vessels cut

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off the cables of a Vietnamese ship surveying within Vietnam’s own
EEZ. In December 2012, the Vietnamese again protested another
cable-cutting act committed by two Chinese vessels on a Vietnamese
ship surveying within Vietnam’s EEZ. In March 2011, the Philippines
also protested that Chinese surveillance vessels menacingly circled a
Philippine-commissioned ship surveying in the Reed Bank, which is
within the Philippines’ EEZ.

These harassment tactics by the Chinese have prevented Vietnam

and the Philippines from exploiting the resources within their own
EEZs, an exclusive right guaranteed to them under UNCLOS. These
harassment tactics only confirm that in practice China is claiming all the
waters and resources within its 9-dashed line map, even if the waters
and resources fall within the EEZ of other coastal states that have no
overlapping EEZs with China.

The only joint development that is feasible in the Spratlys is for all
claimant states to respect each others’ EEZs as guaranteed by UNCLOS,
and to jointly develop the disputed areas beyond these EEZs. In the
absence of overlapping EEZs in the Spratlys, the EEZ of a coastal state
can never be a disputed area because UNCLOS, to which all claimant
states in the Spratlys are parties, guarantees such EEZ to every coastal
state. Beyond the EEZs, the extended continental shelves of claimant
states in the Spratlys overlap and can be considered disputed areas, and
thus open to joint development. This kind of joint development, with no
preconditions, is friendly, fair, practical and durable because it is in
accordance with UNCLOS. There is no bullying in this kind of joint
development, and no state illegally appropriates the EEZ of another
state.

Why did the Philippines file an arbitration case against China?

Following the tense standoff in April and May 2012 between

Chinese and Philippines vessels in Scarborough Shoal, the Philippines
withdrew in June 2012 its vessels from Scarborough Shoal on the
understanding of a mutual withdrawal of vessels by both China and the
Philippines. The Chinese, however, reneged on their commitment and
refused to withdraw their vessels. Then in November 2012, China
informed the Philippines that the Chinese surveillance vessels would
remain permanently stationed in Scarborough Shoal. China was now in
permanent occupation of Scarborough Shoal.

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 Scarborough Shoal is a submerged reef except for six small rocks
that protrude not more than three meters above water at high tide. The
width of the largest rock above water at high tide is only a few meters.
The Philippines built a lighthouse on one of the rocks in 1965, and
another lighthouse in 1991. From the 1960s to the 1980s Scarborough
Shoal was a bombing range of American and Philippine Air force planes
practicing bombing runs. Prior to such practice bombings, American
and Philippine authorities would give worldwide notices to mariners to
avoid Scarborough Shoal. No protest was ever heard from China.

Scarborough Shoal appeared in the first map of the Philippines

issued under the American regime in 1899. Earlier during the Spanish
regime, Scarborough Shoal, at that time called Panacot, appeared in
several Spanish maps of the Philippines starting at least in the 1734
Murillo map. While Scarborough Shoal was outside the lines drawn in
the 1898 Treaty of Paris, Spain and the United States two years later
entered into the 1900 Treaty of Washington clarifying that islands to
which Spain had “title or claim of title” were also ceded to the United
States even though outside the lines drawn in the Treaty of Paris. Thus,
Spain ceded Scarborough Shoal to the United States under the 1900
Treaty of Washington. Under the 1935 Constitution, the territories ceded
by Spain to the United States under the Treaty of Paris and the Treaty of
Washington form part of the Philippine national territory. Under the
2009 amendment to the Philippine Baselines Law, Scarborough Shoal is
declared as a Regime of Islands for purposes of determining its
baselines.

The Philippines had five options in responding to the Chinese

occupation of Scarborough Shoal. First was to send naval vessels and
marines to retake Scarborough Shoal. This was not feasible because of
the superior Chinese naval forces. Second was to file a diplomatic
protest with China. This was useless because China would simply
ignore the protest – as it ignored the protest of the Philippines after
China seized Mischief Reef 17 years earlier in 1995. Third was to ask
Asean to lobby China to withdraw from Scarborough Shoal. This was
not realistic because some Asean countries are hesitant to offend China.
Besides, Asean countries do not take sides on territorial disputes.
Fourth was to take the matter to the United Nations Security Council.
This was also futile since China has a veto power in the Security
Council. The fifth and only viable option was to bring the matter to an
international tribunal for arbitration, where the playing field would be

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level and military power would not count, but only the rule of law
would govern. Incidentally, the Philippines could also not invoke the
Phil-U.S. Mutual Defense Treaty since the U.S. has made it clear that
the islands, reefs and rocks in the South China Sea are outside the scope
of the treaty.

With China’s occupation of Scarborough Shoal, the Philippines

had no other recourse but to go to an Annex VII arbitral tribunal under
UNCLOS. It was the only sensible and effective response that the
Philippines could offer. Otherwise, nothing would stop China from
occupying another rock, reef, or shoal within its 9-dashed line claim
even if within the EEZ of the Philippines.

The Chinese occupation of Scarborough Shoal is an invasion of

Philippine territory, giving rise to a territorial sovereignty dispute.
However, the Philippines could not bring China to compulsory
arbitration on a territorial sovereignty dispute without China’s consent.
That is why the Philippines decided to do the next best thing - bring
China to compulsory arbitration on the maritime aspect of China’s 9-
dashed line claim. If China’s 9-dashed line claim is invalidated, then
China will lose its excessive claim to the waters of the South China Sea.
More significantly, China’s basis for claiming territorial sovereignty
over the islands within its 9-dashed line claim will weaken considerably
since the 9-dashed line claim is central to China’s historical claim to
territorial sovereignty over the islands within the enclosed area.

Is China’s consent required for the compulsory arbitration?

When a state ratifies UNCLOS, the state consents in advance to be

bound by the compulsory dispute settlement mechanism under
UNCLOS on “any dispute concerning the interpretation or application”
of the provisions of UNCLOS. However, a state is allowed to opt out of
compulsory arbitration for certain matters, like disputes on maritime
boundary delimitation. In 1996, ten years after ratifying UNCLOS,
China opted out of compulsory arbitration for certain types of disputes,
including any dispute on maritime boundary delimitation. A state
remains bound to compulsory arbitration with respect to the
interpretation or application of UNCLOS on disputes that the state has
not excluded, or cannot exclude, from compulsory arbitration.

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 Thus, when an actual dispute arises involving the interpretation
or application of UNCLOS, a signatory state is already deemed to have
given its consent to compulsory arbitration, unless the dispute is one
that is properly excluded from compulsory arbitration under UNCLOS.

The Philippines’ arbitration case against China involves the

interpretation or application of UNCLOS on three main issues. The first
issue is whether China’s 9-dashed line claim can negate the grant under
UNCLOS of an EEZ to the Philippines. This issue does not involve any
maritime boundary delimitation because there are no overlapping EEZs
between China and the Philippines, certainly not in the island of Luzon
facing the West Philippine Sea. Scarborough Shoal, whatever state may
have sovereignty over it, does not generate an EEZ because only small
rocks are found there. Admittedly, those rocks are not islands capable
of sustaining human habitation or economic life of their own, which is
the condition for an island to have an EEZ.

In the Spratlys there is no island capable of sustaining human

habitation or economic life of its own. This is the position of the
Philippines, Vietnam, Malaysia and Brunei. Thus, there are also no
overlapping EEZs between the Philippines and other claimant states in
the Spratlys. However, since China claims that islands in the Spratlys
generate EEZs, the second issue is whether an island in the Spratlys
actually generates an EEZ. The resolution of this issue does not
involve any maritime boundary delimitation. This issue is an inquiry
into whether an island in the Spratlys satisfies the UNCLOS
requirement of being able to “sustain human habitation or economic life
of [its] own.” If none of the islands satisfies this requirement, then
there are no overlapping EEZs in the Spratlys and hence no maritime
boundary delimitation is involved. If an island satisfies this
requirement, and thus generates an EEZ, then the tribunal will so
declare but will proceed no further without the consent of China
because the issue will then involve overlapping EEZs requiring
maritime boundary delimitation for its resolution.

In the event that the arbitral tribunal rules that an island in the
Spratlys generates an EEZ, the Philippines can bring China to
compulsory conciliation under an UNCLOS conciliation commission.
Under UNCLOS, a state that opts out of compulsory arbitration
involving maritime boundary delimitation shall nevertheless submit to
compulsory conciliation. The conciliation commission will adjust the
median line of the overlapping EEZs, taking into account Palawan’s

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more than 600-nm coastline as against the less than 1-nm coastline of
the biggest island in the Spratlys. Under prevailing law of the sea
jurisprudence, such huge disproportion in the opposing coastlines will
entitle the island in the Spratlys to an EEZ either only seaward away
from Palawan, or to a proportionally minuscule EEZ facing Palawan, if
at all. Although the report of the conciliation commission is not
binding on China, China is obligated under UNCLOS to negotiate in
good faith with the Philippines based on the report of the conciliation
commission.

The third issue is whether China can appropriate and construct

artificial islands on low-tide elevations (LTEs) within the Philippines’
EEZ, like the massive structure China built on Mischief Reef, which
China officially describes as a shelter for Chinese fishermen. LTEs are
rocks above water at low tide but under water at high tide. LTEs
beyond the territorial sea of a coastal state do not generate any maritime
zone, not even a territorial sea. LTEs beyond the territorial sea are not
subject to appropriation and to claims of territorial sovereignty because
they are not land but part of the maritime zone. Under UNCLOS, only
the adjacent coastal state can build artificial islands within its EEZ.

A corollary issue raised by the Philippines is whether China can

subject the high seas in the South China Sea to its sovereignty. The high
seas refer to the area beyond the EEZs of coastal states. China’s 9-
dashed line claim subjects the high seas in the South China Sea to
China’s “indisputable sovereignty.” UNCLOS expressly provides that
no state shall subject the high seas to its sovereignty. This UNCLOS
provision is a codification of centuries’ old customary international law.

Under UNCLOS, the refusal of a party to participate in a dispute

settlement proceedings, where such participation is compulsory, “shall
not constitute a bar to the proceedings” and the tribunal can still decide
the case on the merits.

How long will it take for the arbitral tribunal to decide the case?

The 5-man Annex VII arbitral tribunal met for the first time last
July 11, 2013 and designated The Hague as seat of the arbitration and
the Permanent Court of Arbitration as the Registry of the proceedings.
Although China has refused to participate in the proceedings, it is still
being notified, and requested to comment, at every stage of the

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proceedings. Last Tuesday, August 27, 2013, the Tribunal issued an
Order approving its Rules of Procedure and directing the Philippines to
submit its Memorial not later than March 30, 2014. The Order states
that the Memorial shall “fully address all issues, including matters
relating to the jurisdiction of the Arbitral Tribunal, the admissibility of
the Philippines’ claim, as well as the merits of the dispute.” The Order
further states, “The Arbitral Tribunal will determine the further course
of the proceedings, including the need for and scheduling of any other
written submissions and hearings, at an appropriate later stage, after
seeking the views of the Parties.” Based on the Tribunal’s Order
requiring all issues to be addressed in the Memorial of the Philippines, it
is possible that the Tribunal may decide the jurisdictional issue together
with merits of the dispute. Arbitrations under Annex VII may take two
to three years before a decision is reached.

What are the ramifications of this case on international law?

China’s 9-dashed line claim simply cannot co-exist with

UNCLOS. Upholding one means killing the other. If China’s 9-dashed
line claim is upheld or allowed to stand, UNCLOS will cease to be the
law of the sea in the South China Sea. China will appropriate for itself
not only the EEZs and ECSs of other coastal states but also the high
seas and all the living and non-living resources found there. This will
be the beginning of the end for UNCLOS. Other naval powers will
likewise claim other oceans and seas, taking away the EEZs and ECSs
of weak or defenseless coastal states. The oceans and seas of the planet
will be governed by the rule of the naval canon.

Indeed, the maritime dispute between the Philippines and China

is an acid test to the very survival of UNCLOS - whether the Rule of
Law will govern the oceans and seas of our planet, or whether the rule
of the naval cannon will prevail, as it did in the time of Grotius. Legal
scholars on the law of the sea all over the world are keenly watching the
outcome of the Philippines’ arbitration case.

What are the ramifications of this case on the Philippines?

The Philippines has wisely chosen to bring its maritime dispute

with China to a forum where warships, fighter planes and missiles do
not count, eliminating the military advantage of China and insuring that

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the outcome of the dispute will be decided only in accordance with the
Rule of Law. It was a wise decision, but one borne out of necessity
because it was actually the only viable option open to the Philippines.

We have to admit that as a nation we have neglected to maintain a

credible self-defense force, particularly in our naval assets despite our
being an archipelagic country with extensive coastlines and a vast EEZ.
We are paying dearly for this neglect, by losing Mischief Reef in 1995,
Scarborough Shoal in 2012, and most likely Ayungin Shoal in the near
future. To remain a sovereign and independent nation, to maintain our
territorial integrity, to avoid further humiliation, and to maintain our
self-respect as a nation, we must build and maintain a credible self-
defense force. There is simply no alternative to this. No nation can
remain sovereign, independent and free for long without maintaining a
credible self-defense force, even if international law and world opinion
are on its side.

As a nation we must also understand that the maritime and

territorial dispute with China in the West Philippine Sea is an inter-
generational struggle to maintain our sovereignty and territorial
integrity. Our generation may win the legal battle in the UNCLOS
arbitration case, but for sure China will not simply abandon its massive
structure in Mischief Reef or withdraw its surveillance vessels in
Scarborough Shoal.

After securing a favorable ruling from the arbitral tribunal, our

generation must still win over world opinion and convince the Chinese
people that they will become a rogue nation if their Government
continues to violate international law. he Chinese leaders may not
survive politically if they simply abandon the 9-dashed line claim
without the Chinese people being convinced that their 9-dashed line
claim is against international law. The present generation of Chinese
have been taught from the time they entered school that the South China
Sea belongs to them. The next generation of Filipinos, and even the
generation after them, must continue to wage a worldwide campaign to
convince the Chinese people that the 9-dashed line claim has no basis in
international law.

UNCLOS does not provide for a world policeman or sheriff to

execute decisions of international arbitral tribunals. Member states of
UNCLOS are expected to voluntarily self-execute decisions of arbitral
tribunals. For a losing party, this will happen only if the Government of

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the day can survive politically even if it complies with a decision
against its own state. A Government will survive politically if its
people understand that the decision is mandated by international law.
The world must explain to the Chinese people that the 9-dashed line
claim is contrary to international law. No nation can claim the oceans
and seas as its own. That is why it is necessary for the Philippines to
first secure a ruling from an international tribunal that the 9-dashed line
claim is contrary to international law.

The West Philippine Sea dispute can, and must be resolved,

through the Rule of Law because it is the only fair, just and durable
solution to a situation where the opposing states are vastly unequal in
terms of military, economic and political strength. Any resolution of
the dispute outside of the Rule of Law will only result in unequal
treaties and plant the seeds of conflict for future generations.

The Rule of Law in the West Philippine Sea dispute is UNCLOS.

All the claimant states to the dispute are parties to UNCLOS and are
bound to comply with their treaty obligations under UNCLOS in good
faith. If the West Philippine Sea dispute is settled in accordance with
UNCLOS, then the world can be assured that there will be a just,
permanent and lasting peace in the West Philippine Sea.

---end---

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