THE RULE OF LAW IN

THE WEST PHILIPPINE

SEA DISPUTE

Justice Antonio T. Carpio

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 Origins of Law of the Sea
 In the 17th Century, naval superpowers claimed
ownership of oceans and seas they discovered, and
enforced their ownership through the naval cannon.
 In 1609, Hugo Grotius argued in his classic Mare
Liberum that the oceans and seas belonged to all
mankind.
 Grotius’ idea later became part of international law.
 The foundation of law of the sea is that the oceans
and seas belong to all mankind.
mankind

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 China Returns to 17th
Century Era
 In the 21st Century, China claims ownership of
almost the entire South China Sea by historical
right.
 China is enforcing its claim through the naval
cannon.
 China is bringing back the world to the 17th
Century.

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 The West Philippine
Sea Dispute
 Under its 9-dashed line historical claim, China
asserts “indisputable sovereignty”
sovereignty to 80% of the
EEZ and 100% of the ECS of the Philippines in the
WPS.

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 Law Governing
the WPS Dispute
 UNCLOS, which took effect in 1994, governs the
WPS dispute.
 UNCLOS codified existing customary international
law and created novel maritime entitlements.

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 Law Governing
the WPS Dispute
 UNCLOS provides for a compulsory dispute
settlement mechanism for the settlement of
maritime disputes.
 UNCLOS governs only maritime disputes, not
territorial sovereignty disputes.
disputes
 China, the Philippines, and all other claimant states
to the Spratlys have ratified UNCLOS, and are
bound to follow UNCLOS faithfully.

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 Maritime Entitlements
under UNCLOS
 UNCLOS guarantees every coastal state, like the
Philippines, a 200-NM EEZ, plus a 150-NM ECS
where applicable.
 Coastal and landlocked countries can fish in the
high seas, which is the area beyond the EEZ.
 The area beyond the ECS, with all its resources,
belongs to all coastal and landlocked states; this is
called the AREA – which is the common heritage
of mankind.

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 Violation of UNCLOS
Legal Entitlements
China’s 9-dashed line claim violates:
1. The Philippines and other states’ legal entitlement
to a 200-nm EEZ and 150-nmnm ECS.
2. The right of all states to fish in the high seas.
3. The right of all states to the seabed beyond the
ECS.
4. The prohibition against any state subjecting the
high seas to its sovereignty.
“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 China’s
s 9-Dashed
9
Line Claim
 China anchors its 9-dashed
dashed line claim on “historical
rights.”
 The 9-dashed lines first appeared in a 1947 Chinese
Government map; the map is of dubious
provenance; the dashes were originally 11, later
reduced to 9, and then increased to 10.
 The dashes have no coordinates, and no
explanation whether they signify a claim only to
the islands within the enclosed area, or also a claim
to all the enclosed waters.
waters
“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 James Shoal

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
From 11 to 9 to 10 Lines

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 China’s
s 9-Dashed
9
Line Claim
 Chinese legal scholars are divided as to what the 9
or 10 dashes mean.
 China officially notified the world of the 9-dashed
9
line claim only in 2009.
 China never enforced the 9-dashed
9 line claim from
1947 up to the present.
 No country recognizes or acquiesces in to China’s
China
9-dashed line claim.

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 China’s
s 9-Dashed
9
Line Claim
 The 9-dashed line claim is contrary to the
principles and rules of international law on claims
of historical rights to the sea.
 The 9-dashed line claim is contrary to UNCLOS,
which does not recognize claims of “historical
rights” to the EEZ or ECS of another state.
 There is nothing “historical
historical” or “right” about
China’s 9-dashed line claim.
claim

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 China’s
s Joint
Development Offer
• China is offering to jointly develop areas in the
Philippines’ EEZ that overlap China’s 9-dashed
line claim, while shelving the sovereignty issue.
• However, China requires, as precondition to joint
development, that the Philippines first recognize
China’s “indisputable sovereignty”
sovereignty under its 9-
dashed line claim.
• This precondition is inconsistent with shelving the
sovereignty issue.

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 China’s
s Joint
Development Offer
 This precondition means the Philippines will give
up its maritime entitlements in the WPS that are
guaranteed under UNCLOS;
UNCLOS this also means that
the Philippines will give up its territorial
sovereignty over all the islands in the Kalayaan
Island Group.
 Acceptance of China’’s precondition or joint
development is not allowed by the Philippine
Constitution.
 No claimant state has agreed to China’s joint
development offer.
“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 Why the Philippines Filed
Arbitration Case
 In November 2012, China informed the Philippines
that Chinese surveillance vessels would remain
permanently in Scarborough Shoal.
 In short, China had invaded Philippine territory.
 The Philippines had no capability to physically
retake Scarborough Shoal.
Shoal

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 Why the Philippines Filed
Arbitration Case
 The only effective response the Philippines could
make was to bring China to arbitration on the
maritime aspect of the 9-dashed
9 line claim, which
is also the historical basis of China’s territorial
claim to Scarborough Shoal, Mischief Reef and all
the other islands, reefs and rocks China claims in
the WPS.

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
1744 Murillo Map

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
1744 Murillo Map Showing
Panacot (Scarborough)

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 Ramifications of
Arbitration on UNCLOS
 China’s 9-dashed line cannot co-exist with
UNCLOS; upholding one means killing the other.
 If allowed to stand, China’s
China 9-dashed line claim
means UNCLOS ceases to be the law of the sea in
the South China Sea.. The very survival of
UNCLOS is at stake.

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 Ramifications of
Arbitration on Philippines
 Even if China’s 9-dashed
dashed line claim is invalidated,
China is not expected to vacate Mischief Reef and
Scarborough Shoal.
 The Philippines must wage a worldwide campaign to
enlist world opinion in convincing the Chinese
people that the 9-dashed
dashed line is contrary to
international law, and that adherence to the Rule of
Law is the only peaceful, fair and lasting solution to
the WPS dispute.

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 Ramifications of
Arbitration on Philippines
 Protecting the nation’s maritime zones is an inter-
generational duty of all Filipinos, who must prepare
for a long struggle.
 The Philippines must build and maintain a credible
self-defense force, particularly strengthening its navy,
to protect its maritime zones.
zones
 No nation can remain independent, sovereign and
free for long without a credible self-defense force.

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 Rule of Law the only
Durable Solution
• The use of force or threat of force to resolve the
West Philippine Dispute will only plant the seeds
for future conflicts.
• The only fair, just and lasting solution to the West
Philippine Dispute is to follow the Rule of Law -
which means the faithful application of UNCLOS.

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio
 END

“The
The Rule of Law in the West Philippine Sea Dispute”
Dispute by Justice Antionio T. Carpio