Justice Antonio T. Carpio
8 February 2013
Dean Danny Concepcion, Prof. Raffy Morales – the Faculty Adviser of the Philippine Law Journal, other members of the U.P. Law Faculty, Chair Jenny Domino and other members of the PLJ Editorial Board, distinguished guests, fellow students of the law, friends: good afternoon to everyone.
Let me congratulate Chair Jenny and her Editorial Board for launching the on-line Philippine Law Journal. This has been the dream of many PLJ Chairs, and it has happened finally during the watch of Chair Jenny. Today, the PLJ joins the cyberspace age. However, there is still a lot of work to do, specifically to digitize, proof read, and upload the back issues of the PLJ spanning almost 100 years. Fortunately, the software program that Sam Galope, our IT specialist, developed for the PLJ will make uploading articles, and managing the website, a breeze. Thank you Sam for a wonderful job in developing the PLJ website.
Of special interest to many of us here this afternoon is the on-line only PLJ issue on the West Philippine Sea dispute. The on-line PLJ issue on the West Philippine Sea dispute is a purely cyberspace issue, devoted exclusively to the multi-state maritime dispute over large areas of the South China Sea. The focus, of course, will be on the action of the Philippines to bring China to arbitration under UNCLOS. Appropriately, the first article uploaded to this issue is the Notification and Statement of Claim given by the Philippines to China. Everyone should read carefully this Statement of Claim – it is a well-crafted document, skillfully avoiding territorial or land sovereignty issues as well as maritime issues that China has reserved from arbitration, yet putting at issue the major source of the South China dispute – the validity of China’s 9-dash line claim to almost 90% of the South China Sea.
The Statement of Claim says that last 2012 China “seized” – the exact word used is “seized” – six small rocks, barely 3 meters above water at high tide, in Scarborough Shoal. You will recall that last November 2012 the Chinese Vice-Foreign Minister informed our Foreign Secretary that the Chinese Coast Guard vessels will remain permanently in Scarborough Shoal. This means China has seized, taken over and occupied permanently Scarborough Shoal, which was previously under the possession and control of the Philippines.
We had prior possession and control because in the ‘60s and ‘70s U.S. and Philippine air force planes used to drop bombs on Scarborough Shoal for target practice. There could be no better proof of possession and control of a territory than dropping bombs on it for target practice. We dropped the bombs without any protest from China or any other country. We gave prior worldwide Notices to Mariners, thru the usual international maritime channels, to stay clear of the area during the bombing practice.
We know, moreover, that Scarborough Shoal is expressly mentioned in the Baselines Law as part of the Philippine national territory. Now, what should the President of the Philippines, or of any country for that matter, do when part of the national territory is seized, taken over and occupied by another country?
There are four options in responding to such seizure or occupation by a foreign power.
- The first option is to send naval and air assets to evict the foreign occupier. This is not an option for the Philippines. We do not have the military capability to evict the Chinese Coast Guard Vessels in Scarborough Shoal.
- The second option is to request action or assistance from the U.N. Security Council and our ASEAN partners. This is not an option for the Philippines. China is a permanent member of the U.N. Security Council, with veto power. Our ASEAN partners can be divided into five groups: those who live next to China and cannot afford to antagonize China; those who need economic aid from China; those who are neutral because they have no competing claims with China; those who have only minor competing claims with China and just prefer to lie low because they need to trade with China or find it not worth the trouble to press the issue with China; and those who have substantial competing claims with China and have no choice but to defend their turf lest China run over them. Since ASEAN acts only by consensus, the Philippines obviously cannot rely on ASEAN for assistance.
- The third option is to file a diplomatic protest with China. This is not an option for the Philippines. In 1995, when China seized Mischief Reef by building a fisherman’s shelter, our diplomatic protest with China fell on deaf ears. Now, 17 years later, China’s fisherman’s shelter in Mischief Reef has turned into an intimidating military fortress. Unless we do something more effective, China will just slowly swallow our reefs and shoals, whether submerged or not.
- The fourth option, the only remaining option for the Philippines, is to find a way to bring China to arbitration in an international tribunal where the playing field is level, where warships and warplanes, as well as economic sanctions, do not count, but where the rule of international law reigns supreme. Such arbitration is a peaceful resolution of a dispute between states in accordance with international law. But how do we compel China to accept arbitration? Now, this requires a little legal creativity. That is why I said earlier you have to read our Statement of Claim carefully.
We all know that on territorial or land sovereignty issues, the disputant states must give their consent to the jurisdiction of the arbitral tribunal before the tribunal can act. We also know that China will never give its consent to arbitration on territorial sovereignty issues. But China, by ratifying UNCLOS, has actually agreed to compulsory arbitration on “any interpretation or application of the Convention,” save only on the issues that it made reservations as allowed by the Convention. China’s reservations refer to maritime boundary delimitations, historic bays and title, and military activities.
The issues of whether China’s 9-dash line claim violates the 200 NM EEZ granted to coastal states under UNCLOS, whether the islands or rocks in the Spratlys or Scarborough Shoal generate only a territorial sea or also EEZs, and whether China has a right to appropriate fully and permanently submerged reefs like Mischief Reef that are outside the EEZ of China and within 200 NM of the Philippines, are outside of the reservations made by China. Thus, the Philippine position is that China can be brought to compulsory arbitration on these issues.
So the fourth option, to bring China to arbitration before an international tribunal, is actually possible but not on the issue of China’s seizure or occupation of Scarborough Shoal, which is a territorial or land sovereignty issue, but on the validity of China’s 9-dash line claim and on the status of islands, rocks and submerged reefs, which are purely maritime issues regulated by the Convention.
China’s 9-dash line claim is the basis for its expansive claim to the submerged areas in the South China Sea that lie beyond the territorial sea of the islands and rocks. Invalidating the 9-dash line claim, and securing a ruling that none of the islands and rocks generate EEZs, will narrow down considerably the dispute to purely territorial or land sovereignty disputes over who owns the islands and rocks and their surrounding 12 NM territorial sea. We can afford to shelve resolution of this territorial or land dispute, including who has sovereignty over Scarborough Shoal, for the next 100 or even 1000 years.
Is this good for us? Yes, because there can no longer be any legal dispute that the fully submerged Reed Bank, which is where the rich reserves of gas is located, belongs exclusively to the Philippines, being within 200 NM from Palawan and more than 800 NM from China. The resolution of the legal issue is important for investors.
So, when you look at the four options available to the Philippines, we really had no choice but to go for the fourth option. It was our only viable option in response to China’s seizure of Scarborough Shoal. Any other option would be ineffective and also extremely humiliating to us as a nation. That is why I fully agree with the decision of the President to bring China to arbitration under UNCLOS.
But what are our chances of success under such arbitration? I have also four possible scenarios as to the outcome of the arbitration. But it will take me much longer to discuss these four scenarios, and I think I have already said enough. My purpose is just to give you a preview of what exciting articles you can read in the On-Line PLJ issue on the West Philippine Sea dispute. So visit regularly the PLJ website at plj.upd.edu.ph.
Thank you and a good day to all.