‘UNCLOS useless if not applicable to South China Sea’

MANILA, Philippines - If the United Nations Convention on the Law of the Sea (UNCLOS) cannot apply to the South China Sea and West Philippine Sea dispute, then it cannot apply to any other maritime row, according to Supreme Court Senior Associate Justice Antonio Carpio.

Carpio voiced his position in a lecture on China’s nine-dash line claim at the Center for Strategic and International Studies (CSIS) in Washington last Oct. 5.

In Beijing’s nine-dash claim, China’s maritime domain covers almost the entire South China Sea and West Philippine Sea, including the exclusive economic zones (EEZ) of smaller neighboring countries.

But he made clear the Philippines will abide by any ruling of the arbitral tribunal on the issue of jurisdiction that Beijing raised against the case filed by Manila contesting China’s expansive maritime claim.

“If UNCLOS does not apply to the South China Sea dispute, as when China’s nine-dash lines are allowed to gobble up the EEZs of coastal states as well as the high seas, then UNCLOS, the constitution for the oceans and seas, cannot also apply to any maritime dispute in the rest of the oceans and seas of our planet,” Carpio said.

“It will be the beginning of the end for UNCLOS,” he added.

“The rule of the naval cannon will prevail in the oceans and seas of our planet, no longer the rule of law. There will be a naval arms race among coastal countries,” he warned.

He discussed China’s deceptive nine-dash line claim, specifically its lack of historical basis, contrary to Beijing’s pronouncements.

“Will the world community allow a single state to rewrite the Law of the Sea, so this single state can exercise indisputable sovereignty to almost an entire sea, subject the high seas to its sovereign jurisdiction and seize large areas of other coastal states’ EEZs, which are their legal maritime entitlements under both customary international law and UNCLOS?” Carpio said.

Ambassador Jose Cuisia Jr., for his part, said “maritime security and the South China Sea will continue to impact US-China relations and China’s relations with its neighbors.”

He said Carpio’s thoughts would enrich the discourse on what has been characterized by professor Michael Tkacik of Stephen Austin State University as possibly the single most important dispute in the world today.

The SC magistrate said China’s setting of new boundaries under the nine-dash line has effects not only on the Philippines but also on other countries in the region and the world.

“The Philippines loses about 80 percent of its EEZs facing the West Philippine Sea, including the entire Reed Bank and part of the Malampaya gas field,” he said.

“Malaysia loses about 80 percent of its EEZ in Sabah and Sarawak facing the South China Sea, as well as most of its active oil fields in the same area. Vietnam loses about 50 percent of its total EEZ,” he explained.

Brunei loses about 90 percent of its total EEZ, while Indonesia’s EEZ would shrink by 30 percent, particularly in the area of Natuna Islands, “whose surrounding waters comprise the largest gas field in Southeast Asia,” he said.

He reiterated that China’s enforcement of its nine-dash claim is a violation of the UNCLOS and the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea as it threatens peace, security and stability in the region.

In 2002, China, along with member countries of the Association of Southeast Asian Nations (ASEAN), committed to resolve the South China Sea dispute “in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea.”

Eleven years later, China began insisting that historical facts be accepted as additional basis of its claim.

“After the Philippines filed in January 2013 its arbitration case against China under UNCLOS, China’s Foreign Minister Wang Yi declared that the South China Sea dispute should be resolved in accordance with historical facts and international law,” Carpio added.

But he said official and unofficial maps of China from 1136 during the Song Dynasty until the end of the Qing Dynasty in 1912 show that the southernmost territory of China has always been Hainan Island.

Hua Yi Tu, a Chinese stone map from the 12th century, excludes disputed islands in the South China Sea from China’s territory.

The 1986 Huang Chan Zhi Sheng Yu Di Quan Tu or The Qing Empire’s Complete Map of All Provinces shows that Hainan Island was a part of Guangdong province and became a separate province only in 1988.

Official and unofficial maps of the Philippines from 1636 until 1933 show that Panatag (Scarborough) Shoal has always been part of the Philippines.

The 1734 Murillo Velarde Map shows Panatag Shoal and some features in the Spratly Group of Islands as part of the Philippines.

The Islas Filipinas, Mapa General Observatorio de Manila published in Washington in 1899 by the US Coast and Geodetic Survey shows Bajo Masinloc, also called Scarborough Shoal, as Philippine territory.

The maps, including the Chinese ones, only prove that the Philippine position has both legal and historical basis, the SC magistrate said.

“The 1898 Treaty of Paris between Spain and the United States drew a rectangular line wherein Spain ceded to the United States all of Spain’s territories found within treaty lines,” Carpio said.

While Panatag Shoal lay outside the treaty lines, it was included two years later in the 1900 Treaty of Washington wherein Spain clarified that it would also relinquish to the US all islands and islets within the archipelago not covered by the Treaty of Paris.

“Thus, Spain ceded Scarborough Shoal to the United States under the 1900 Treaty of Washington,” Carpio said.

Washington is the first leg of Carpio’s US lecture tour on the South China Sea and West Philippine Sea dispute.