Bring China’s 9-dash line to UN: Justice Carpio

The Philippine claim on the islands in the South China Sea , now being called West Philippine Sea by Philippine authorities, could have been stronger had past administrations been more decisive about asserting our claims in the area that is being claimed wholly by China and Taiwan and partially by, aside from the Philippines, Vietnam, Malaysia, and Brunei.

In a speech of Supreme Court Justice Antonio T. Carpio at the 50th anniversary celebration of Ateneo de Davao University last Oct. 29 on “The Rule of Law as the Great Equalizer’, he mentioned two instances when the Philippines could have done something but did not to strengthen the Philippine claim over the area that spans hundreds of thousands square kilometers including 53 islets.

Justice Carpio’s speech in full:

The Rule of Law as the Great Equalizer by Justice Carpio

The first time was right after the Philippines became a signatory to the United Nations Convention on the Law of the Sea (UNCLOS) in 1982 and the other one was before China opted out in 2006 from the compulsory dispute settlement mechanism of UNCLOS.

In discussing the rule of law, Carpio zeroed in on three major international conventions which the Philippines has ratified: the UNCLOS; the Agreement creating in 1995 the World Trade Organization or WTO; and the Rome Statute, the treaty creating the International Criminal Court or ICC.

Carpio was President Fidel Ramos’ chief legal counsel and he knows whereof he speaks about the missed opportunities in building lighthouses.

He said: “after the Philippines became a signatory to UNCLOS in 1982, Philippine officials studied for several years various options on how to maximize the country’s archipelagic waters under UNCLOS. Finally, these officials agreed on one thing: establish lighthouses in low-tide elevations (LTEs), which are rocks above water at low tide but submerged at high tide. With lighthouses, these LTEs qualify under UNCLOS as basepoints to connect archipelagic baselines. Without lighthouses, these LTEs do not qualify as basepoints. Preparations were thus made to install lighthouses in several LTEs, particularly in the Kalayaan Island Group.

“In early 1998, the Philippine Government decided to install the lighthouses. However, at the last minute, the Philippine Government backed out and stopped the installation of the lighthouses. Thus, the Philippines missed the chance to maximize its archipelagic waters under UNCLOS.”

Documents I have obtained on this attempt to build lighthouses in KIG showed that it was bureaucratic wrangling, particularly between the National Mapping and Resource Information Authority (NAMRIA) and the Department of National Defense on who would be the lead agency in the activity that had an initial budget of P178 million, that derailed the project.

On the second missed opportunity, Carpio said, “If China’s 9-dashed line map is questioned before an UNCLOS tribunal, there is no doubt that it would be declared as having no basis in international law.

“China’s 9-dashed line map simply cannot co-exist with UNCLOS. Upholding one means killing the other. The challenge then, for the Philippines as well as for other states trampled upon by China’s 9-dashed line map, is how to bring the validity of China’s 9-dashed line map to an UNCLOS tribunal, given that China has opted out in 2006 from the compulsory dispute settlement mechanism of UNCLOS. Had the Philippines and other claimant states brought China to compulsory arbitration before 2006, China, which ratified UNCLOS in 1996, would have had no recourse but to submit to compulsory arbitration. That would have ended China’s claim to the entire South China Sea under whatever basis or theory. Inexplicably, the Philippines and other claimant states missed their chance to bring China to UNCLOS before China opted out of the compulsory dispute settlement mechanism.”

The nine-dash-line is a map showing a U-shaped line enclosing almost the whole of the South China Sea which China claims belongs to them. The map has been widely protested by several countries including the Philippines and criticized in the international community.

In the recently-held forum on South China Sea organized by the Carlos P. Romulo Foundation, Peter Gailbraith, former US ambassador to Croatia and who now heads the Windham Resources Group, which provides negotiating and strategic services to government and corporate clients, said China’s nine-dash-line “has no basis in international law.”

Carpio said “Not all is lost” for the Philippines.

Government agencies involved in the South China Sea issue (Foreign Affairs, Defense and Justice departments) should study this part of Carpio’s speech:

“First, a state that opts out of the UNCLOS compulsory dispute settlement mechanism is still subject to compulsory conciliation under UNCLOS. While the decision of an UNCLOS conciliation commission is not binding on the parties, its ruling is nevertheless persuasive. If the conciliation commission concludes that China’s 9-dashed line map has no basis in international law, then that is practically the end of China’s claim to 90% of the South China Sea. World opinion will turn strongly against China if it insists on its 9-dashed line map. The South China Sea is the second busiest international sea-lane in the world. More than one-half of the world’s merchant fleet by tonnage passes through the South China Sea every year. More than 80% of the crude oil for Japan, South Korea, and Taiwan passes through the South China Sea. The entire world has an important stake in the South China Sea. A country like China that depends on international trade for its growth and prosperity cannot simply ignore world opinion. As events in the break-up of Yugoslavia and the upheavals of the Arab Spring have shown, world opinion has become the defining moral force behind the Rule of Law.

“Second, UNCLOS allows states to opt out of compulsory arbitration only with respect to the delimitation of overlapping maritime zones or issues involving historic bays or titles forming part of internal waters. The validity of China’s 9-dashed line map is an issue that is independent of maritime delimitation because it also affects fishing, scientific research and freedom of navigation in the South China Sea. No historic bay or title is involved because China obviously cannot claim the South China Sea as its internal waters.

“Also, whether the geographic features in the Spratlys Islands Group in the West Philippine Sea are rocks or islands entitled to maritime zones is an issue not subject to the opt out clause as this issue does not involve the delimitation of maritime boundaries. Once the maritime status of these rocks and islands are defined, as distinguished from their sovereignty status, the extent of the disputed area in the South China Sea will also be defined and narrowed. If none of the islands generate their own EEZs, then there will be no overlapping EEZs between China and the Philippines in the Spratlys Islands Group. If some islands generate their own EEZs, then the dispute will be narrowed to those overlapping EEZs, freeing the rest of the South China Sea from any dispute.

“Thus, some international law scholars have suggested that opposing claimant states should subject the validity of China’s 9-dashed line map, as well as the maritime status of the rocks and islands in the South China Sea, to compulsory arbitration under UNCLOS.

“In this crucial battle to secure our EEZ under UNCLOS, the Philippines can never lose to China, unless the Philippines commits an irremediable blunder like bringing the battle outside of UNCLOS. We must bring the battle to an UNCLOS tribunal for resolution of the dispute under UNCLOS. Our right to our EEZ in the South China Sea is guaranteed under UNCLOS. UNCLOS will lose its reason for existence if it fails to secure for the Philippines its EEZ. If the Philippines brings the battle outside of UNCLOS, it can never expect to win over China, whether militarily or diplomatically.”