Justice Carpio explains the case against China

For most of us ordinary citizens many of the acronyms that make up much of the discussions concerning our dispute with China are just terms and phrases used by international lawyers talking with each other. Many of us know very little or almost nothing about Unclos, EEZ, ECS, LTE, and other similar references that are at the heart of the disagreements with our powerful next-door neighbor.

In a speech last March 6 before the Philippine Women’s Judges Association, Supreme Court Senior Associate Justice Antonio Carpio explained our case against China and, in the process, provided us with basic information that allows for a better understanding and appreciation of the issues involved.

The speech is quite lengthy but let me share a few points that may help clarify the Philippine position. At stake according to Justice Carpio is “whether the Philippines will keep or lose 80 percent of its exclusive economic zone and 100 percent of its extended continental shelf in the West Philippine Sea.”

The key acronym here is the Unclos, which stands for United Nations Convention on the Law of the Sea. It refers to the international agreements that resulted from UN conferences on the law of the sea from 1973 to 1982. This convention defines the rights and responsibilities of nations with respect to their use of the world’s oceans. The convention came into force in 1994. As of August 2013, 165 countries and the European Union have joined the convention. China and the Philippines are both signatories to the Unclos. The United States, Israel, Turkey, Venezuela are among the few others that are not signatories to the convention.

As Justice Carpio explains, “Unclos, ratified by 165 states comprising 85 percent of the entire membership of the United Nations, is the primary international law governing the use of the oceans and seas of our planet. Specifically, Unclos governs the use of the following maritime zones: (a) internal waters or archipelagic waters, the landward waters adjacent to the territorial sea; (b) territorial sea, an area 12 nautical miles from the baselines along the coast; (c) exclusive economic zone (EEZ), an area of 200 nautical miles from the baselines; (d) extended continental shelf (ECS), an additional area of 150 nautical miles from the outer limits of the EEZ; and (e) the area, which is the common heritage of mankind, the maritime zone beyond the ECS. The area belongs to all states whether coastal or landlocked.

“Unclos governs maritime disputes on overlapping maritime zones like overlapping territorial seas, EEZs and ECS.  Unclos does not govern territorial disputes, which are sovereignty or ownership issues over land territory, like islands or rocks above water at high tide.

“Unclos provides for a compulsory dispute settlement mechanism over maritime disputes among its member states, including disputes involving the interpretation or

application of Unclos… China, the Philippines and all the other disputant States in the South China Sea are parties to Unclos, and are thus bound by the Unclos compulsory dispute settlement mechanism.

“The Philippines’ arbitration case against China is solely a maritime dispute and does not involve any territorial dispute. The Philippines is asking the tribunal if China’s 9-dash lines can negate the Philippines’ EEZ as guaranteed under Unclos. The Philippines is also asking the tribunal if certain rocks above water at high tide, like Scarborough Shoal, generate a 200 nautical mile EEZ or only a 12 nautical mile territorial sea. The Philippines is further asking the tribunal if China can appropriate low tide elevations (LTEs) like Mischief Reef and Subi Reef within the Philippines’ EEZ. These disputes involve the interpretation or application of the provisions of Unclos.”

Much of China’s position is based on so-called historical rights. Justice Carpio points out that “China’s claim to a historical right to the waters enclosed within the 9-dash lines is utterly without basis under international law. This is the almost universal opinion of non-Chinese scholars on the law of the sea: First, Unclos extinguished all historical rights of other states within the 200 nautical miles EEZ of the adjacent coastal state. That is why the 200-NM zone is called “exclusive”—no state other than the adjacent coastal state can exploit economically its resources. Fishing rights that other states historically enjoyed within the EEZ of a coastal state automatically terminated upon the effectivity of Unclos.

“Any reservation of claims to historical rights over the EEZ or ECS of another coastal state is prohibited because Unclos does not expressly allow a state to claim historical rights to the EEZ or ECS of another state. In short, Unclos does not recognize ‘historical rights’ as basis for claiming EEZs or ECS of other coastal states.

“Second, under Unclos the term ‘historic bays’ refers to internal waters and the term ‘historic titles’ refers to territorial seas. A state can claim historical rights over waters only as part of its internal waters or territorial sea. Thus, under Unclos a state cannot claim ‘historical rights’ over waters beyond its territorial sea.”

Justice Carpio closed his speech by reminding China of Deng Xiaoping’s solemn commitment to the world when he declared before the UN General Assembly in April 1974, thus: “If one day China should change her color and turn into a superpower, if she too, would play the tyrant in the world and everywhere subject others to her bullying, aggression and exploitation, the people of the world should identify her as social-imperialist, expose it, oppose it, and work with the Chinese people to overthrow it. ”

Carpio noted that “China’s rulers today have transformed China into the imperialistic hegemon that Deng asked the Chinese people and the world to fight and overthrow should China’s rulers in the future deviate from his vision of a peaceful and law-abiding China. Deng repeatedly promised the world that China would never seek hegemony. Sadly for Deng and sadly for the rest of the world, especially for the Philippines, that day has come.”