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WPS Speech of J Carpio PDF
WPS Speech of J Carpio PDF
(Publication Version)
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.
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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.
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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.
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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.
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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.
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.
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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.
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.
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.
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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.
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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.
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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.
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.
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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.
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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.
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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.
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.
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.
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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.
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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.
---end---
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