THE WEST PHILIPPINE SEA DISPUTE

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1 THE RULE OF LAW IN THE WEST PHILIPPINE SEA DISPUTE Justice Antonio T. Carpio

2 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.

3 China Returns to 17th Centur ry Era In the 21st Century, China claims ownership of almost the entire South China Sea by historical right. China is enforcing its cannon. claim through the naval China is bringing back the world to the 17th Century.

4 The West Philippine Sea Dispute Under its 9-dashed line historical claim, China asserts indisputable sovereignty to 80% of the EEZ and 100% of the ECS of the Philippines in the WPS.

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6 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.

7 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. China, the Philippines, and all other claimant states to the Spratlys have ratified UNCLOS, and are bound to follow UNCLOS faithfully.

8 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 landlockedd 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.

9 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-nm ECS. 2. The right of all states to fish in the high seas. 3. The right of all states ECS. to the seabed beyond the 4. The prohibition against any state subjecting the high seas to its sovereignty.

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11 China s 9-Dashed Line Claim China anchors its 9-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.

12 James Shoal

13 From 11 to 9 to 10 Lines

14 China s 9-Dashed Line Claim Chinese legal scholars are divided as to what the 9 or 10 dashes mean. China officially notified line claim only in the world of the 9-dashed China never enforced the 9-dashed line claim from 1947 up to the present. No country recognizes or acquiesces in to China s 9-dashed line claim.

15 China s 9-Dashed 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 or right about China s 9-dashed line claim.

16 China 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 under its 9- dashed line claim. This precondition is inconsistent with shelving the sovereignty issue.

17 China s Joint Development Offer This precondition means the Philippines will give up its maritime entitlements in the WPS that are guaranteed under 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 development offer. agreed to China s joint

18 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.

19 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 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.

20 1744 Murillo Map

21 1744 Murillo Map Showing Panacot (Scarborough)

22 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 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.

23 Ramifications of Arbitration on Philippines Even if China s 9-dashedd 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 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.

24 Ramifications of Arbitration on Philippines Protecting the nation s maritime zones is an intergenerational 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. No nation can remain independent, sovereign and free for long without a credible self-defense force.

25 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.

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