Carpio: China's invasion is armed aggression
International law trumps China's claims, Carpio says
MANILA (UPDATED) - China's invasion and occupation of Mischief Reef in 1995 and Scarborough Shoal in 2012 are acts of armed aggression against the Philippines that violate the United Nations Charter, according to Supreme Court Senior Associate Justice Antonio Carpio.
Carpio, in a recent speech before the Philippine Women's Judges Association, said China is also threatening to forcibly evict Philippine Marines aboard the shipwrecked RPS Sierra Madre in Ayungin Reef within the Philippines' exclusive economic zone (EEZ) in the Spratlys.
The Philippines is not the lone target of China, according to Carpio. He said Beijing also committed armed aggression against Vietnam in the Paracels in 1974 and Fiery Reef Cross in 1988.
"The world is now familiar with the expansionist designs of China in the South China Sea. China's creeping invasion of the islands, rocks and reefs, as well as of the waters, of the South China Sea grows in force and aggressiveness each day as China's naval forces assume greater superiority over those of other coastal states," he said.
Carpio said China is using force and is making up historical falsehoods because its position is weak under international law
He said the Manila is in the right path by filing an arbitration case against Beijing in accordance with Constitution and the 1982 United Nations Convention on the Law of the Sea (UNCLOS). "At stake in the arbitration before an UNCLOS Annex VII tribunal is whether the Philippines will keep or lose 80% of its exclusive economic zone and 100% of its extended continental shelf (ECS) in the West Philippine Sea."
He said that based on arguments Beijing has presented and under the general principles and rules of international law, it cannot claim any "historical right" in the West Philippine Sea that pre-dated UNCLOS.
"Even assuming, for the sake of argument, that China has such 'historical right,' the entry into force of UNCLOS in 1994 extinguished such right. Under UNCLOS, a state cannot claim any 'historical right' to the EEZ or ECS [extended continental shelf] of another state," the senior magistrate said.
He specifically mentioned China's controversial 9-dashed line claim that renegade Koumintang forces drew up only in 1947 and presented to the UN only in 2009.
"China's claim to a 'historical right' to the waters enclosed within the 9-dashed lines in the South China Sea is utterly without basis under international law. This is the almost universal opinion of non-Chinese scholars on the law of the sea," Carpio said.
He explained that UNCLOS extinguished all historical rights of other states within the 200 nautical-mile EEZ of an adjacent coastal state. "That is why this 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."
Carpio added that UNCLOS bars nations from making any reservation or exception to UNCLOS unless expressly allowed by the international agreement.
"UNCLOS does not recognize 'historical rights' as basis for claiming the EEZs or ECSs of other coastal states," he stressed.
Carpio said that under UNCLOS, 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."
He said the South China Sea has never been considered as the internal waters or territorial sea of any state. "Since time immemorial, ships of all nations have exercised freedom of navigation in the South China Sea. Likewise, since the time airplanes flew across the seas, aircraft of all nations have exercised freedom of over-flight over the South China Sea."
"The waters enclosed within the 9-dashed lines cannot also form part of China's EEZ or ECS because they are not drawn from China's baselines and are beyond the limits of China's EEZ and ECS as drawn from China's baselines. In short, China's claim to the waters enclosed by the 9-dashed line claim does not fall under any of the maritime zones - internal waters, territorial sea, EEZ and ECS - recognized by international law or UNCLOS that can be claimed by a coastal state," Carpio said.
"Only China seems to know what kind of maritime regime the 9-dashed line waters fall under, but China is not telling the world except that it is claiming 'indisputable sovereignty' over such waters by 'historical right,'" he said.
'SPURIOUS HISTORICAL BASIS'
Carpio said China is using spurious interpretation of history, particularly with regard to Scarborough Shoal.
He said the Chinese embassy in Manila claimed in an article on its website that Scarborough Shoal is Nanhai island that the 13th century Chinese astronomer-engineer-mathematician Guo Shoujing allegedly visited in 1279.
Carpio, however, revealed that in a document entitled 'China's Sovereignty Over Xisha and Zhongsa Islands Is Indisputable' issued on January 30, 1980, China's Ministry of Foreign Affairs officially declared that the Nanhai island that Guo Shoujing visited in 1279 was in Xisha -- or what is internationally called the Paracels -- which are a group of islands more than 380 nautical miles from Scarborough Shoal.
He said it would also have been impossible for Guo Shoujing to go ashore to "visit" Scarborough Shoal and install an observatory when it is just pieces of rock rising a few feet from the sea.
Carpio said China can't claim its southernmost territory the fully submerged James Shoal, which is just 50 nautical miles from the coast of Sarawak in Malaysia.
He said a Chinese committee that drew up a map in the 1930s and gave Chinese names to some islands in the Spratlys didn't even visit the areas.
"Apparently, Chinese leaders and cartographers claimed James Shoal as China's southernmost territory even without seeing James Shoal. Certainly, no Chinese could have gone ashore to 'visit' James Shoal. James Shoal is the only national border in the world that is fully submerged and beyond the territorial sea of the claimant state," Carpio said.
"Indeed, all Chinese official maps during the Yuan, Ming and Qing Dynasties placed the southernmost border of China at Hainan Island. The famous 17th century Qing Dynasty Kangxi maps, prepared by the Jesuit missionaries who became advisers to Emperor Kangxi, placed Hainan Island as the southernmost border of China. None of the Chinese dynasty maps ever mentioned the Paracels, the Spratlys, Scarborough Shoal, the 9-dashed lines or the U-shaped lines," he added.
Carpio said that as late as September 1932, China was telling the world that its southernmost border was Hainan Island, and not the submerged James Shoal.
"The real and unvarnished historical facts in the South China Sea are quite different from what China has claimed them to be. Despite its name, which was given by European explorers and cartographers, the South China Sea was never the sole domain of China or of any one country," he said.
Carpio reiterated this in another speech he delivered at De La Salle University on Friday.
"China's claim of sovereignty over South China Sea is an egregious lie, inconsistent with historical facts and its own pronouncements," he said.
Carpio said that under international law, historical information is irrelevant in the settlement of maritime disputes. "Yet, China insists without basis," he said.
He said "ancient maps" also prove nothing -- at best evidence of claim but not basis of a territorial title. Carpio cited the Burkina Faso vs. Mali case at the International Court of Justice as an example.
"Even if we indulge China in its claims, historical facts, ancient maps, and former Chinese constitutions disprove China's 9-dash claim," Carpio said.