The Rule of Law in the West Philippine Sea Dispute by Justice Antonio Carpio

“The Rule of Law in the West Philippine Sea Dispute

THE RULE OF LAW IN THE WEST PHILIPPINE

SEA DISPUTE

Justice Antonio T. Carpio

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

THE RULE OF LAW IN THE WEST PHILIPPINE

SEA DISPUTE

Justice Antonio T. Carpio


Origins of Law of the Sea

In the 17th Century, navalownership of oceans andenforced their ownership

In 1609, Hugo Grotius arguedLiberum that the oceansmankind.

Grotius’ idea later became The foundation of law of

and seas belong to all mankind


Origins of Law of the Sea

naval superpowers claimedand seas they discovered, and

ownership through the naval cannon.argued in his classic Mare

oceans and seas belonged to all

became part of international law.of the sea is that the oceans

mankind.


China Returns to 17th Century

In the 21st Century, Chinaalmost the entire Southright.

China is enforcing itscannon.

China is bringing backCentury.


China Returns to 17th Century Era

China claims ownership ofSouth China Sea by historical

claim through the naval

back the world to the 17th


The West PhilippineSea Dispute

Under its 9-dashed lineasserts “indisputable sovereigntyEEZ and 100% of the ECSWPS.


West PhilippineSea Dispute

line historical claim, Chinasovereignty” to 80% of theECS of the Philippines in the

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


Law Governing the WPS Dispute

UNCLOS, which took effectWPS dispute.

UNCLOS codified existinglaw and created novel maritime



effect in 1994, governs the

existing customary internationalmaritime entitlements.



UNCLOS provides forsettlement mechanismmaritime disputes.

UNCLOS governs onlyterritorial sovereignty disputes

China, the Philippines, andto the Spratlys have ratifiedbound to follow UNCLOS



for a compulsory disputefor the settlement of

only maritime disputes, notdisputes.

and all other claimant statesratified UNCLOS, and are

UNCLOS faithfully.


Maritime Entitlements under UNCLOS

UNCLOS guarantees everyPhilippines, a 200-NMwhere applicable.

Coastal and landlockedhigh seas, which is the area

The area beyond the ECS,belongs to all coastal andcalled the AREA – whichof mankind.


Maritime Entitlements under UNCLOS

every coastal state, like theEEZ, plus a 150-NM ECS

landlocked countries can fish in thearea beyond the EEZ.ECS, with all its resources,and landlocked states; this is

which is the common heritage


Violation of UNCLOS Legal Entitlements

China’s 9-dashed line claim1. The Philippines and otherto a 200-nm EEZ and 150-nm2. The right of all states to fish3. The right of all statesECS.4. The prohibition againsthigh seas to its sovereignty.


Violation of UNCLOS Entitlements

claim violates:other states’ legal entitlement

nm ECS.fish in the high seas.to the seabed beyond the

against any state subjecting thesovereignty.

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


China’s 9Line Claim

China anchors its 9-dashedrights.”

The 9-dashed lines first appearedGovernment map; theprovenance; the dashesreduced to 9, and then increased

The dashes have noexplanation whether theythe islands within the enclosedto all the enclosed waters


s 9-Dashed Line Claim

dashed line claim on “historical

appeared in a 1947 Chinesethe map is of dubious

were originally 11, laterincreased to 10.no coordinates, and no

they signify a claim only toenclosed area, or also a claim

waters.


James Shoal


James Shoal


From 11 to 9 to 10 Lines


From 11 to 9 to 10 Lines



Chinese legal scholars areor 10 dashes mean.

China officially notified the world of the 9line claim only in 2009.

China never enforced the 91947 up to the present.

No country recognizes or acquiesces in to China9-dashed line claim.



are divided as to what the 9

China officially notified the world of the 9-dashed

China never enforced the 9-dashed line claim from

No country recognizes or acquiesces in to China’s


The 9-dashed line claimprinciples and rules of internationalof historical rights to the

The 9-dashed line claimwhich does not recognizerights” to the EEZ or ECS

There is nothing “historicalChina’s 9-dashed line claim



claim is contrary to theinternational law on claimssea.

claim is contrary to UNCLOS,recognize claims of “historical

ECS of another state.historical” or “right” aboutclaim.



• China is offering to jointlyPhilippines’ EEZ thatline claim, while shelving

• However, China requires,development, that the PhilippinesChina’s “indisputable sovereigntydashed line claim.

• This precondition is inconsistentsovereignty issue.

China’s Joint Development Offer


jointly develop areas in theoverlap China’s 9-dashed

shelving the sovereignty issue.requires, as precondition to joint

Philippines first recognizesovereignty” under its 9-

inconsistent with shelving the

s Joint Development Offer


China’s Joint Development Offer

This precondition meansup its maritime entitlementsguaranteed under UNCLOSthe Philippines willsovereignty over all theIsland Group.

Acceptance of China’development is not allowedConstitution.

No claimant state hasdevelopment offer.


s Joint Development Offer

means the Philippines will giveentitlements in the WPS that are

UNCLOS; this also means thatgive up its territorial

the islands in the Kalayaan

’s precondition or jointallowed by the Philippine

agreed to China’s joint


Why the Philippines Filed Arbitration Case

In November 2012, Chinathat Chinese surveillancepermanently in Scarborough

In short, China had invaded The Philippines had no

retake Scarborough Shoal



China informed the Philippinessurveillance vessels would remainScarborough Shoal.

invaded Philippine territory.no capability to physically

Shoal.


The only effective responsemake was to bring Chinamaritime aspect of the 9is also the historical basisclaim to Scarborough Shoal,the other islands, reefs andthe WPS.



response the Philippines couldChina to arbitration on the

9-dashed line claim, whichbasis of China’s territorial

Shoal, Mischief Reef and alland rocks China claims in



1744 Murillo Map


1744 Murillo Map


1744 Murillo Map ShowingPanacot (Scarborough)


1744 Murillo Map ShowingPanacot (Scarborough)


Ramifications of Arbitration on UNCLOS

China’s 9-dashed lineUNCLOS; upholding one

If allowed to stand, Chinameans UNCLOS ceasesthe South China Sea.UNCLOS is at stake.


Ramifications of Arbitration on UNCLOS

line cannot co-exist withone means killing the other.China’s 9-dashed line claim

to be the law of the sea in. The very survival of


Ramifications of Arbitration on Philippines

Even if China’s 9-dashedChina is not expected toScarborough Shoal.

The Philippines must wageenlist world opinion inpeople that the 9-dashedinternational law, and thatLaw is the only peaceful,the WPS dispute.



dashed line claim is invalidated,vacate Mischief Reef and

wage a worldwide campaign toin convincing the Chinese

dashed line is contrary tothat adherence to the Rule of

peaceful, fair and lasting solution to


Protecting the nation’s maritimegenerational duty of all Filipinos,for a long struggle.

The Philippines must buildself-defense force, particularlyto protect its maritime zones

No nation can remain independent,free for long without a credible



maritime zones is an inter-Filipinos, who must prepare

build and maintain a credibleparticularly strengthening its navy,

zones.independent, sovereign and

credible self-defense force.



Rule of Law Durable Solution

• The use of force or threatWest Philippine Disputefor future conflicts.

• The only fair, just and lastingPhilippine Dispute is towhich means the faithful


Rule of Law the only Durable Solution

threat of force to resolve theDispute will only plant the seeds

lasting solution to the Westfollow the Rule of Law -

faithful application of UNCLOS.


END


END

The Rule of Law in the West Philippine Sea Dispute by Justice Antonio Carpio

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