Arbitration vs Beijing: Victory for Phl is victory for mankind

China’s communist rulers absurdly annex the “global commons,” Earth resources that sensibly belong to all. Supreme Court Senior Associate Justice Antonio T. Carpio discusses this in “Grand Theft of the Global Commons,” a recent speech at the University of San Agustin-College of Law, Iloilo City. Following is the last of a four-part serialization of his research.

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Hainan’s Fishery Regulations authorize Chinese maritime vessels to apprehend foreign fishing boats operating without permission within waters administered by Hainan. Chinese authorities can seize the fish catch and fishing equipment of foreigners operating in Macclesfield Bank, and even fine them up to $83,000.

Prof. Carl Thayer of the University of New South Wales calls the Fishery Regulations an act of “state piracy” by China. Others have called it the biggest seizure of international waters since the 1493 Papal Line of Demarcation that divided between Spain and Portugal the newly discovered world outside of Europe.

I call the Fishery Regulations of Hainan a grand theft of the global commons in the South China Sea. China is taking for its exclusive benefit fishery resources that belong to all peoples of the world, as prescribed and commanded by UNCLOS. China, being a party to UNCLOS, is legally bound to comply in good faith with UNCLOS provisions. By appropriating the fishery resources of Macclesfield for its exclusive use, China blatantly is violating its international obligation to comply with UNCLOS.

Chinese authorities carefully have presented Hainan’s Fishery Regulations as routine administrative issuances that merely implement existing Chinese law. Thus, China’s Foreign Ministry spokeswoman Hua Chunying stated, “China is a maritime nation, so it is totally normal and part of the routine for Chinese provinces bordering the sea to formulate regional rules according to the national law to regulate conservation, management and utilization of maritime biological resources.” The Global Times chimed in that the Fishery Regulations are “just technical amendments to China’s Fisheries Law that has been enforced for more than two decades.”

The “technical amendments,” as interpreted and applied by Hainan authorities, actually bring China’s Fisheries Law into direct, frontal clash with UNCLOS. China’s claim of jurisdiction over the high seas in the South China Sea creates this direct and frontal clash. As long as China subjects the high seas, and the EEZs of other coastal States, to its sovereign jurisdiction, China cannot escape being in gross violation of international law, in particular UNCLOS.

Where Philippines stands

The Philippines has brought China to an UNCLOS arbitration panel to question the validity of China’s 9-dashed lines, which encroach on 80 percent of the Philippine EEZ in the West Philippine Sea, including the Reed Bank and the Malampaya gas field. The stakes are enormous not only for the Philippines, but also for all States of this planet.

The Philippines seeks to prevent China from encroaching not only on the Philippine EEZ, but also on the global commons in the South China Sea. The Philippines is fighting a legal battle not only for itself but also for all mankind. A victory for the Philippines is a victory for all States, coastal and landlocked, that China has shut out of the global commons in the South China Sea. ASEAN States whose EEZs also are encroached by China’s 9-dashed lines will likewise benefit immensely from a Philippine victory.

If China’s 9-dashed lines are allowed to stand, then there will be no global commons in the South China Sea. If there be no global commons in the South China Sea, then there will be no global commons in the rest of the oceans and seas of our planet. Great naval powers will appropriate for themselves whatever global commons they can grab. Coastal nations, large or small, will be forced to strengthen their naval forces to protect their own maritime zones. Naval might, not the law of the sea, will prevail in the oceans and seas of our planet. That will spell the end of UNCLOS, and the end of the rule of law in more than two-thirds of the surface of our planet.

As citizens of the world, we all have a profound stake in preserving the global commons in the South China Sea. As law professors, law students, law practitioners, magistrates and life-long students of the law, we must employ all our legal skills to defend the rule of law in the South China Sea. As Filipinos blessed by the Almighty with the extensive marine resources of an archipelagic State, we must be faithful to our duty as stewards of these marine resources — to protect and preserve these marine resources in our EEZ for the present and future generations of Filipinos.

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