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Constitutional Law 1
The 1982 United Nations Convention on the Law of the Sea defines three
distinct areas-territorial waters, exclusive economic zones, and international
waters. Territorial waters are those under government sovereign control and
legally recognized as twelve nautical miles from the low water mark of a coastal
state. This zone is under the exclusive control of the state, but ships of all
nations are allowed innocent passage. Beyond twelve nautical miles is the
Exclusive Economic Zone (EEZ), which extends seaward to 200 nautical miles.
Within an EEZ, the coastal state has special rights to use and exploit marine
resources such as oil exploration, seabed mining, and fishing. The international
community still enjoys the rights and freedom of navigation and over flight in
the EEZ, as well as the ability to lay submarine telecommunications cables and
other non-resource related uses of the oceans. Beyond 200 miles is considered
international waters where all coastal and non-coastal states have equal access
and enjoy the freedom of the seas and other activities.1
1
1 http://www.atlanticcouncil.org/blogs/new-atlanticist/maritime-disputes-and-international-law,
Reveron, D., Atlantic Council, Maritime Disputes and International Law, April 19, 2010, September 5, 2014
This is where the issue arises in Justice Carpio’s view regarding our
nation’s marine wealth in the West Philippine Sea when the imperialist country,
China claims almost 90% of the South China Sea under its so-called 9-dashed
line which unfortunately overlaps 80% of the Philippines’ EEZ in the West
Philippine Sea. His discussion of the Territorial Dispute focuses on whether the
Philippines will keep or lose 80% of its exclusive economic zone and 100% of
its extended continental shelf in the West Philippine Sea and our duty to uphold
the mandate of our 1987 constitution that states: “The state shall protect the
nation’s marine wealth in its xxx exclusive economic zone, and reserve its
use and enjoyment exclusively to Filipino Citizens.”
As a Filipino citizen, and a law student I strongly affirm to what our 1987
constitution mandates as specified by Justice Carpio, just as a soldier will do his
duty in service of the country without any reservation, we must protect our
nation’s marine wealth for the advantage of all Filipino Citizens in any way
possible.
Hence, as a small country that guises as one that is easy to oppress but
will never dispirited and as a country that “adopts the generally accepted
principles of international law as part of the law of the land and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity with all
nations.”2, Philippines opted to file an arbitration case against China in
accordance with The 1982 United Nations Convention on the Law of the Sea
which at stake in the arbitration will determine whether Philippines will keep
or lose 80% of its exclusive economic zone and 100% of its extended
continental shelf in the West Philippine Sea.
The right which China officially notified the world where no single
country in the world recognizes, respects, tolerates or acquiesces. The
historical right which according to non-Chinese scholars of the sea is without
basis under international law.
2
Tanada v Angara, G.R. No. 118295
Allow me to enumerate why China cannot claim any historical right as
cited by Justice Carpio,
First, UNCLOS extinguished all historical rights of other states within the
200 NM EEZ of the adjacent coastal state. That is why this 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 a coastal state automatically terminated upon the effectivity
of UNCLOS.
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 on territorial sea. Thus,
under UNCLOS, a state cannot claim historical rights over waters beyond its
territorial sea. In short, China’s claim to the waters enclosed by the 9-dashed
line claim does not fall under any of the maritime zones – internal waters,
territorial sea, EEZ and ECS – recognized by international law or UNCLOS that
can be claimed by a coastal state. Only China seems to know what kind of
maritime regime the 9-dashed line water falls under, but China is not telling the
world except that it is claiming indisputable sovereignty over such waters by
historical right.
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 extent and scope of such claim. Two, the state 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 to the exercise of such authority. China fails to comply
with any of these four conditions.
I affirm his statement when he said that under the general principles and
rules of international law, China cannot claim any “historical right” that pre-
dated UNCLOS. Even assuming, for the sake of argument, that China has such
historical right, the entry into force of UNCLOS in 1994 extinguished such right.
Under UNCLOS, a state cannot claim any historical right to the EEZ or ECS of
another state.
In an article by Jojo Malig he quoted Bensurto who said that under
UNCLOS you are not supposed to occupy unoccupied features and wondered
how China can have historical claims to continental shelf when a continental
shelf is a modern concept.3
Justice Carpio is right when he said that under UNCLOS, EEZs can only be
drawn from baselines along the coast of continental land or an island capable
of human habitation or economic life of its own. China’s 9-dashed-lines do not
comply with the basic requirement of UNCLOS for drawing EEZs.
He also sustained that China has no EEZ that overlaps with the
Philippines’ EEZ in the Scarborough area and that China’s baselines are either
along the Coast of Hainan Island, which is 580 NM from Luzon, or along the
coast of mainland China, which is 485 NM from the Zambales coastline in Luzon
facing Scarborough Shoal. Furthermore, Justice Carpio said that even by
granting the Chinese-held Paracels an EEZ, the Paracels are about 480 NM from
Luzon. To have overlapping EEZs, the distance between the opposite baselines
in Luzon where its distance from the nearest Chinese baseline is less than
400NM.
If only all these technicalities that displays our nation’s unquestionable right
over this EEZs will be used and China decides to approve of it then there’s will
be no dilemma for our country but unfortunately, China won’t comply with the
demands of smaller countries and has no plans of resulting to international law
because apparently, it is not on their side.
On the other hand, what’s really in it for China that despite her whopping
territory she suddenly has been persistent of her historical right over what
belongs to our nation and the other claimant states?
3
http://www.abs-cbnnews.com/focus/06/06/13/unclos-does-not-support-chinas-claims-
us-naval-expert-says, Malig, D., ABS-CBNNEWS.COM, UNCLOS does not support China's
claims, US naval expert says, June 6, 2013, September 6, 2014
One, South China Sea accounts for 10 percent of the world’s fishing
revenue. This revenue is split between China, Philippines, Taiwan, Malaysia,
and Brunei who each claim small part of the South China Sea as their own
through various treaties.
Two, the total annual income of all these nations a year is $5 Trillion
dollars a year. If China can claim all of the South China Sea as its own, China
would be the richest nation on earth.
Three, the only undetermined fact is the oil that Chinese scientist have
found, but China has never tap any of these resources yet. Let’s just say many
countries in the Middle East have been able to survive off of oil revenue being
70-80% of their total income. How much more richer and powerful would
China be if they had full ownership of the South China Sea. 4
4
http://chinavsphilippineswar.blogspot.com/, China vs. Philippines War. Road to World
War 3: How the battle for the 5 trillion dollar fishing industry + oil might cause another
devastating war. May 25, 2012
5
http://outravel.blogspot.com/2012/04/treasure-in-scarborough-shoal-
island.html, Outravel, Treasure in Scarborough Shoal Island – Philippines.
they have their list even without scouting any of these Islands because the
committee had no means of doing such.
Arbitrating the South China Sea dispute is assuredly more fraught than
commercial disputes, grating as it does on China's rawest nerve: territorial
sovereignty. That is why it must be complemented by all claimant states
exploring the equivalent of an amicable settlement: shelving questions of who
owns what and focusing on joint development of resources for which
compelling precedent exists.6
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 China’s economic zone is China’s alone, but what is
exclusively the Philippines’ economic zone belongs to both China and the
Philippines, and if the Philippines does not agree, China’s warships will be there
to prevent the Philippines from exploiting its exclusive economic zone.
6
http://www.foreignpolicy.com/articles/2014/04/10/beijing_should_let_law_reign_
south_china_sea, Haider, Z. Foreign Policy, Nine-Dash Mine: Why Beijing should let
international law reign in the South China Sea., April 10, 2014, September 6, 2014
Not one of the claimant states to the Spratly’s has accepted China’s joint
development offer because this would equate to a complete surrender to
China’s outlandish indisputable sovereignty claims.
Justice Carpio cleared that the fact that the use of enjoyment of our EEZ
is reserved exclusively to Filipino Citizens does not mean that Chinese
companies cannot anymore participate as technical and financial contractors.
Yes, we should reserve the use and enjoyment of our marine wealth in
our EEZ exclusively to Filipinos, as mandated by the constitution, which we all
sworn to uphold but up to what extent are we willing to vow on this if there will
already be a threat to a person’s life, liberty and property, which, we also have
solemnly sworn to uphold and this world is not just all about lengths and
widths, depths and heights. It is about the existence of life.
Meyer v. Nebraska says that the core of protected liberty includes not
merely freedom from bodily restraint but also the right of the individual to
7
http://www.humanrights.is/the-human-rights-
project/humanrightscasesandmaterials/humanrightsconceptsideasandfora/substantivehu
manrights/therightstointegrity/, Icelandic Human Rights Centre, The Rights to Integrity
contract, to engage in any occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children [and] to worship God according
to the dictates of conscience. 8
Despite not facing any threat to its security, China has embarked on a
path of radical change to both its military strategy and capabilities. The
realization in the 1980s that the Soviet Union was no longer a threat for major
conflict and the Gulf War have had a profound effect on Chinese military
thinking. The strategic focus has now shifted to the offensive. The main theme
is power projection and the ability to fight a modern war with advanced
technology.
China has also used its economic boom and change in military strategy to
commence an ambitious military modernization program. The PLAAF is
acquiring some of the most advanced fighter/bomber aircraft and weapons in
the world. They are also purchasing state of the art air defence systems and
developing supporting aircraft roles such as in-flight refuelling and airborne
early warning. The PLAN is also upgrading its fleet with power projection in
mind. China has an active submarine replacement program in place and has
purchased Russian Kilo-class submarines. New surface vessels are being built
and the PLAN is paying more attention to replenishment at sea capability. While
the PLA has not received the same attention as the navy or air force, it has
formed a large RRU of well-equipped soldiers. China has also continued to
upgrade its nuclear weapons and has developed a solid fuel missile with a MIRV
capability. A space program has also been active and there is a program to trial
a space shuttle by 2005.
Bernas, S.J., 2009. The 1987 Constitution of the Republic of the Philippines: A
8
After all is said and done, our nation like any other country will definitely
protect what they uphold and believe belongs to them for the greater good of
their people but what will resolve disputes if no country, big or small, decides
to concede will be the stand of rest of the world. No imperialist country is too
big and powerful of a nation with the rest of the world.
9
http://fas.org/nuke/guide/china/doctrine/0046.htm, Major H.A. Hynes, China: the
Emerging Superpower