Justice Tony Carpio, hero

3 June 2017

These past few months, in more than one occasion, President Duterte has been quoted
as criticizing Senior Associate Justice Antonio Carpio for “just talking”, and not doing
something about the South China/West Philippine Sea dispute. What a strange thing to
say about the man who has in fact done the most about the issue, to whom the country
owes so much for defending its territory and constitution. Although I have sometimes
disagreed with him, I can say with absolute certainty - Justice Tony is a hero, a defender
of the country’s territory and of our Constitution.

Definitely, on the South China/West Philippine Sea dispute, few can equal the passion
and dedication of Justice Carpio. In particular, the most senior Justice of our Supreme
Court has used his brilliance, encyclopedic knowledge of the law, his mastery of history,
and formidable reputation to propagate the legal, historical, political, and moral
arguments of the Philippines through his speeches and lectures delivered in various
fora, both in the Philippines and abroad. Thankfully, all these speeches and lectures are
now compiled in an e-book The South China Sea Dispute: Philippine Sovereign Rights
and Jurisdiction in the West Philippine Sea that is available for free in the internet.

The e-book is a collation of 140 lectures and speeches delivered in a span of five (5)
years from October 2011 to March 2017. They recapitulate and emphasize the
compelling moral and legal strength of the Philippine claim and the illegality of the
incursions undertaken by Beijing in territories which by legal and historical right
indisputably belong to the Philippines.

To honor Justice Carpio, at this time when he is being unfairly attacked (including by
ignorant trolls who have no idea who the man is) and more importantly to celebrate our
sovereignty as we prepare to celebrate Independence Day, I am serializing in a 4-5
parts series the salient parts of Justice Carpio’s book.

Justice Carpio begins by tracing the sea migration of the Austronesians people, from
which the Malayo-Polynesian languages including Tagalog, were derived, beginning
approximately 4,200 years ago and ended about 1250 CE. They migrated over vast
distances in three oceans including the Pacific Ocean, Indian Ocean and South China
Sea by outrigger sailboat what is now known as balangay in the Philippines, vaka in
Hawaii, vawaka in Polynesia, and vahoaka in Madagascar.

According to Carpio, the Austronesians from the Philippines navigated the waters of
South China Sea, pillaged the villages of the islands and plied their trade long before
Kublai Khan’s failed invasion of Southeast Asia. The ancient Chinese named the sea
Nan Hai or the South Sea, but not South China Sea while the ancient Malays also
called this sea Laut Chidol or the South Sea. For centuries, the South China Sea was
known to navigators as Champa Sea named after an empire in Vietnam. Early in the
15th century, from 1405 to 1433, the emperor of the Ming Dynasty sent Admiral Zheng
He on seven voyages to Malacca, Thailand, Sri Lanka, India, Yemen, Saudi Arabia, and
Kenya to promote trade and to project the power of the Ming Dynasty. But he never
claimed for China the territories he visited.

After this historical section, Justice Carpio makes us look at the United Nations
Convention on the Law of the Sea or UNCLOS, adopted on 10 December 1982 and
entered into force on 16 November 1994. The UNCLOS is the constitution that governs
the oceans and seas and maritime disputes among member states. It is a codification of
customary international law. It also introduced novel concepts such as the exclusive
economic zone and the extended continental shelf, and institutionalized the common
heritage of mankind. To date, it has been ratified by 167 states and the European Union.

Carpio outlines the main principle of UNCLOS encapsulated in the phrase “land
dominates the sea.” Citing a treaty provision, he states the rule as “all maritime zones or
entitlements are measured from the coast of continental land, island or rock above
water at high tide (Articles 3, 57 & 76, UNCLOS),” and “The rights of a coastal state
over the continental shelf do not depend on occupation, effective or notional, or on any
express proclamation [Article 77(3), UNCLOS]. If the coastal state does not explore the
continental shelf or exploit its natural resources, no one may undertake such activities
without the express consent of the coastal state [Article 77(2), UNCLOS].

Restating the Supreme Court case of Magallona v. Ermita, which the author himself
penned, Carpio said that “Supreme Court upheld the constitutionality of Republic Act
No. 9522, which was enacted in 2009 to align the Philippine baselines to conform with
UNCLOS. The Supreme Court rejected the argument that the Treaty of Paris lines
should be the baselines of the Philippines from where to measure its territorial sea, EEZ
and ECS.”

On the South China Sea Dispute, Justice Carpio points out that the dispute started
when in December 1947, the Kuomintang Government of China adopted the nine-
dashed line claim as embodied in a map, entitled Location Map of the South Sea
Islands with eleven dashes forming a broken U-shaped line covering almost the entire
South China Sea, “, claiming “indisputable sovereignty” over all the islands and the
“adjacent” waters enclosed by the line, and “sovereign rights and jurisdiction” over the
“relevant” waters enclosed by the line.” The author insists that the nine-dashed line
claim is bereft of any merit in international law. The author argues on the force of the
well-entrenched international law doctrine of “land dominates the sea,” and all maritime
entitlements must be measured from baselines along the coast of continental land,
island or rock above water at high tide, which China fails comply. According to the
author, “In short, these Chinese legal scholars claim that China is entitled to rights akin
to EEZ and ECS rights beyond what UNCLOS provides, even at the expense of
depriving other coastal states of their own EEZs and ECSs.” In claiming so, China in
wants to grab 80 percent of Philippine EEZ in the South China Sea.

Controversies in the South China Sea

June 6, 2017

This is the second of a series on the South China Sea dispute based on Justice Antonio
Carpio’s e-book The South China Sea Dispute: Philippine Sovereign Rights and
Jurisdiction in the West Philippine Sea. I endorse the book to lawyers and non-lawyers
alike, certainly to all patriots. I have made this a required reading for all my
constitutional law, public international law, and environmental law classes.

In the previous column, I looked at how Justice Carpio set up our understanding of the
dispute by looking at historical accounts and the development of the law of the sea. In
this column, I share Carpio’s understanding of the true nature and extent of the
territorial and maritime disputes. In essence, he frame this as follows: “The dispute in
the South China Sea is rooted in conflicting territorial and maritime claims over islands,
rocks, reefs, and maritime zones among six countries bordering the South China
Sea.”

As described in the book, the territorial Disputes, are those in the Spratlys, Paracels,
and Scarborough shoal.

In the Spratly Islands, China, Vietnam, the Philippines, Malaysia, and Brunei have
territorial disputes, with China and Vietnam claiming the entire Spratlys, while the
Philippines and Malaysia claiming only certain islands and rocks above water at high
tide. Louisa Reef, within Brunei’s EEZ and about 1 meter above water at high tide, is
claimed by Brunei, and by China as Nantong Reef.

Similarly, China and Vietnam have a territorial dispute over the Paracels.

Likewise, China and the Philippines have a territorial dispute over Scarborough Shoal.
The maritime entitlements of rocks above water at high tide, like Scarborough Shoal,
can be independently determined without deciding which state exercises sovereignty
over the rocks. One does not need to know which state has sovereignty over such rocks
to conclude with certainty that such rocks are not capable of sustaining human
habitation or economic life of their own. Not a single blade of grass grows on the rocks
of Scarborough Shoal, and not a single drop of fresh water can be squeezed from those
rocks. Scarborough Shoal, whose biggest rock is 1.2 meters above water at high tide,
can generate only a 12 NM territorial sea, regardless of which state has sovereignty
over the shoal.

Aside from the territorial dispute, there are also maritime disputes to be dealt with. The
distinction is important to understand the significance of the arbitration case the
Philippines filed against China that Justice Carpio discusses lengthily in the book and
which I will summarize in a later column.

The Exclusive Economic Zones of ASEAN States China, on the one side, and on the
other side, Vietnam, the Philippines, Malaysia, Brunei, and Indonesia have a maritime
dispute with China whose nine-dashed line encroaches on the EEZs of these five
ASEAN states. West Philippine Sea The dispute between the Philippines and China
involves the EEZ and ECS70 of the Philippines in the West Philippine Sea, which forms
part of the South China Sea. Under Administrative Order No. 29 (2012), the West
Philippines Sea refers to the waters covered by the maritime entitlements (territorial sea
and EEZ) of the Philippines in the South China Sea. The West Philippine Sea also
includes the Philippine ECS. Under Article 77 (3) of UNCLOS, the right of the
Philippines to its continental shelf, including its 150 NM extended continental shelf, does
not depend on any occupation or proclamation. Such continental shelf inheres ipso
facto and ab initio to the Philippines by virtue of its sovereignty over its land territory.

The Philippine arbitration case against China actually does not involve a territorial
dispute but exclusively focus on maritime disputes involving the interpretation or
application of UNCLOS. Thus Justice Carpio clarifies that “The Philippines did not ask
the Arbitral Tribunal to rule which state is sovereign over certain islands or rocks above
water at high tide. Rather, the Philippines asked the Arbitral Tribunal to rule on the
extent of the maritime entitlements (0, 12 or 200 NM) of certain geologic features,
regardless of which state, if any, exercises sovereignty over them.”

Justice Carpio’s e-book points out that the Spratlys consist of about 750 geologic
features lying off the coast of Palawan, most of which are submerged at all times while
others are above water only at low tide. Only twenty-eight features remain above water
at high tide.

China’s claims to the Spratlys is based on the supposed award made in the Cairo,
Potsdam and San Francisco Conferences. Again, according to Justice Carpio, these
claims are unfounded. The 1943 Cairo Conference, attended by Roosevelt, Churchill
and Chiang Kaishek, produced a press release that “territories taken from China by
Japan, including Manchuria, Taiwan and the Pescadores, would be returned to the
control of the Republic of China after the conflict ended.” Yet, the Spratlys were never
mentioned because these islands were not taken by Japan from China but from the
French and the Spratlys were then unoccupied when Japan took over these islands.
Same goes with the 1951 San Francisco Peace Conference, when the motion of the
USSR to award the Paracels and the Spratlys to China was defeated by a vote of 46 to
3, with one abstention.

China’s Historic Rights Claim

10 June 2017

This is the third of four columns serializing Justice Antonio Carpio’s e-book the South
China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine
Sea. In this article, I summarize and share Carpio’s analysis of China’s historic claim to
the areas that the Philippines has sovereignty over.
Justice Carpio emphasizes the fallacy of China’s historic claims by advancing a number
of assertions.

Historical facts is not a valid basis whatsoever in the resolution of maritime disputes
under UNCLOS. He presents as an example Spain and Portugal which cannot reclaim
their colonial territories despite the 1481 Papal Bull confirming the division of the then
undiscovered territories between the two countries. Moreover, the South China Sea was
not even named by the Chine but by European cartographers.

Neither can conquest be the basis for ownership under international law. On this
argument he cites Greece conquest by Alexander the Great of Egypt, Iran, Turkey, and
the land stretching up to Pakistan. Same goes with China’s claim over Mongolia claim
or Italy as to the land conquered and ruled by the Roman Empire from 27 BCE to 476
CE, stretching from Europe to the Middle East.

Citing the case the Island of Palmas Case (The United States of America v. The
Netherlands), Carpio argues that in international law “a state cannot maintain title to
territory based on discovery alone where subsequent to such discovery another state
has shown “continuous and peaceful display of territorial sovereignty” over the same
territory. Since the 19th century, the rule in international law has been that discovery
alone.”

This argument is buttressed by UNCLOS which states that “a state can only invoke
“historic” rights to claim a territorial sea or internal waters in deeply indented bays or
gulfs along the coast of the mainland, like in the Gulf of Fonseca89 (Article 10,
UNCLOS). Historic rights or historic title cannot be invoked to claim EEZs or ECSs.
The creation of the EEZ under Article 56 of UNCLOS with “sovereign rights,” which
means supreme rights, accorded to the adjacent coastal state, extinguished all historic
rights or claims by other states to the EEZ of a coastal state. The word “exclusive” in
the term EEZ means the economic exploitation of the zone is exclusive to the adjacent
coastal state. No one may exploit the natural resources in the EEZ without the express
consent of the coastal state [Article 77(3), UNCLOS].”

As noted by Justice Carpio, China was an active participant in the negotiations of

UNCLOS from 1973 to 1982. China even sided with the developing coastal countries in
demanding a 200 NM EEZ where the coastal state has exclusive sovereign rights to
exploit the EEZ. Now contradicting its previous actions, China is now claiming that
historic rights as an exception to the exclusive sovereign rights of coastal states in their
EEZs. In fact, in the UNCLOS negotiations the participants agreed that the 200 NM
EEZ proceeds on the assumption that all historic claims of other states in the EEZ of a
coastal state were deemed extinguished.

The author points out that even assuming, quod non, historic rights can be claimed
beyond the territorial sea, the following sine qua non requisites must first be complied
with for historic rights to be valid under international law: First, the state actually
exercised authority over the area where it claims historic rights; Second, the state
exercised that authority continuously and for a long period of time; and Third, other
states either acquiesced in or failed to oppose the exercise of such authority.

China’s nine-dash line claim fails to satisfy these requisite conditions. Yet, despite the
baselessness of its claims, China invokes “historical facts” as basis for its nine-dashed
line claim without specifying what these historical facts are.

China anchors its claim of sovereignty over the islands on supposed abundant historical
evidence. Yet the author observes these are in fact non-existent and the evidence
mostly fabricated. The author cites a noted French geographer, Francois-Xavier Bonnet,
who has extensively researched on the South China Sea dispute, who asserts that
China actually planted its so-called “abundant historical evidence,” at least in the
Paracels and the Spratlys. Francois Xavier Bonnet writes:

“Several authors writing about the Chinese claim to the Paracel Islands have dated to
1902 the first official Chinese expedition to these islands. However, none of these
writers has been able to show any records of this 1902 expedition taking place. In fact,
Chinese records show that the expedition never happened. Instead, a secret expedition
took place decades later to plant false archeological evidence on the islands to bolster
China’s territorial claim. The same strategy has been applied in the Spratly Islands: the
sovereignty markers of 1946 had been placed, in fact, ten years later, in 1956.” The
author likewise cites as annexes documents purporting to antedate markers in certain
disputed Islands including the Paracels and the Spratlys.”

Finally, Justice Carpio notes that while China points to ancient Chinese maps as
“historical facts” to claim the islands, rocks, reefs, and waters within the nine-dashed
line in the South China Sea, it, however, refuses to produce these supposed ancient
maps. Noting further that under international law, a map per se does not constitute a
territorial title or a legal document to establish territorial rights.

There should be no doubt who has the legal upper hand on this dispute. In the final
column of this series, I will summarize the arbitral award the Philippines won against
China as interpreted by Justice Carpio. I will also share his thoughts on how this award
could be enforced.

Winning against China

13 June 2017

This is the final column based on Justice Antonio Carpio’s e-book The South China Sea
Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea. I summarize
here Justice Carpio’s interpretation of thebdecision of the Arbitral Tribunal in the Permanent
Court of Arbitration that upheld the Philippine positions on most issues. I also share Justice
Carpio’s suggestions on how the Arbitral Award can be enforced.

On the Scarborough Shoal, the Tribunal ruled that the Shoal is a high-tide elevation entitled to a
12 NM territorial sea but not to a 200 NM EEZ since obviously it is not capable of human
habitation. The territorial sea of Scarborough Shoal, which includes the lagoon, is however a
traditional fishing ground of Filipino, Chinese, and Vietnamese fishermen. In any case, China
cannot prevent Filipino fishermen from fishing in the territorial sea of Scarborough Shoal.

On China’s claim of the Scarborough Shoal because the shoal was allegedly the observation
point in the South China Sea where Guo Shoujing erected in 1279 CE an astronomical
observatory, this claim is belied because China had already identified Xisha (the Paracels) as
the observation point when China presented its argument against Vietnam in 1980. As clearly
pointed out by Carpio, “The biggest rock on Scarborough Shoal is just 1.2 meters above water
at high tide, and not more than 6 to 10 people can stand on it. It is physically impossible to
erect, or operate, the massive astronomical observatories of Guo Shoujing on the tiny rocks of
Scarborough.”

As regard the environment, the Arbitral Tribunal ruled that China violated its obligation under
UNCLOS to “protect and preserve the marine environment” when China: (a) Dredged and built
islands on seven reefs; (b)Failed to prevent its fishermen from harvesting endangered species
like sea turtles, corals, and giant clams in the Spratlys and Scarborough Shoal.

Other issues raised to which The Arbitral Tribunal made a ruling are:

China violated the exclusive right of the Philippines to its EEZ when China: (a) Interfered with
fishing activities of Filipino fishermen within Philippine EEZ, including imposing a fishing
moratorium within Philippine EEZ; (b) Interfered with petroleum activities of Philippine-
commissioned vessels within Philippine EEZ; (c) Failed to prevent Chinese fishermen from
fishing within Philippine EEZ; and (d)Constructed an artificial island and structures on an LTE
(Mischief Reef) within Philippine EEZ.

China alsoi violated its obligation not to aggravate the dispute during the arbitration when China:
(a) Dredged the reefs, reclaimed and built the islands while the proceedings were ongoing, and;
Destroyed the evidence of the natural condition of the geologic features at issue when China
dredged and reclaimed them while the proceedings were ongoing.

Finally, China violated its obligation to observe maritime safety when Chinese coast guard
vessels crossed the path of Philippine vessels at high speed.

In conclusion, Justice Carpio suggests ways forward inthe enforcement of the Arbitral Award,
namely: (a) Enforcement of the Award by the world’s naval powers with respect to freedom of
navigation and overflight for military vessels and aircraft; and, (b) Enforcement of the Award by
the Philippines with respect to its exclusive right to exploit the resources of its EEZ in the South
China Sea.

On the first enforcement method, Justice Carpio observed that naval powers such as the United
States, France and Great Britain can enforce the Award by sailing and flying, and conducting
military activities, in the high seas and EEZs of the South China Sea.

On the second method of enforcement, the Philippines can do several things, such as suing in a
jurisdiction that ratified UNCLOS, move before the International Seabed Authority for the
suspension of China’s exploration permits in the Area, move before the U.N. Commission on the
Limits of the Continental Shelf (CLCS) for the suspension of China’s application for an ECS in
the East China Sea, can negotiate its maritime boundaries with Malaysia (EEZ and ECS) and
Vietnam (ECS), applying the Arbitral Tribunal’s ruling that no geologic feature in the Spratlys
generates an EEZ and that the nine-dashed line has no legal effect on maritime entitlements,
can delineate its ECS from Luzon and file its claim with the CLCS, there being no legal
impediment from the nine-dashed line, and the Philippine navy and coast guard vessels and
aircraft can continue to patrol Philippine EEZ in the West Philippine Sea.

As a final word, Justice Carpio emphaised that the leaders of our nation must exercise utmost
deliberation, consistency, and perseverance in seeking ways to enforce what the Arbitral
Tribunal has finally awarded to the Philippines as its own EEZ in the West Philippine Sea.
Silence or inaction is no way to go as this can be interpreted as a state’s acceptance of a factual
or legal situation.

It is fitting to end this series this week, when we celebrate Independence day of the Philippines.
There can be no real independence without securing our sovereignty. President Duterte’s approach
to foreign policy, while laudable for its independence, has been reckless on its defense of national
territory. Thankfully, we have Justice Antonio Carpio to remind our leaders of what needs to be done,
I reiterate what I said at the beginning of this series, Justice Tony is a hero, a defender of the
country’s territory and of our Constitution. Let’s be thankful for that.