SC justice debunks China sea claims

By Edu Punay, The Philippine Star

Posted at Jun 10 2014 05:03 AM | Updated as of Jun 10 2014 01:03 PM

MANILA, Philippines - China's own ancient maps would debunk its supposed "historical" claims over disputed areas in the West Philippine Sea, according to a senior magistrate of the Supreme Court (SC).

In his recent lecture at the De La Salle University-College of Law, Senior Associate Justice Antonio Carpio said an examination of such maps would show that the “historical facts” being claimed by China do not exist.

“All these ancient maps show that since the first Chinese maps appeared, the southernmost territory of China has always been Hainan island, with its ancient names being Zhuya, then Qiongya, and thereafter Qiongzhou,” he stressed.

The magistrate said this shows that Hainan island, which was for centuries a part of Guangdong until 1988 when it became a separate province, is the boundary of the Chinese territory in the Southeast Asian region.

Carpio said even the maps of the Philippines and other countries also did not show the contested islands as part of China.

He recalled that China only claimed its alleged “historical facts” as basis for its maritime claims in the South China Sea after the Philippines filed in January 2013 an arbitration case against it before an international tribunal, invoking UNCLOS (United Nations Convention on the Law of the Sea).

The SC justice also pointed out that the use of “South China Sea” as basis for China’s historical claims holds no water.

“The South China Sea was not even named by the Chinese but by European navigators and cartographers. The Song and Ming Dynasties called the South China Sea the ‘Giao Chi Sea,’ and the Qing Dynasty, the Republic of China as well as the People’s Republic of China call it the ‘South Sea’ without the word ‘China’,” he pointed out.

Citing foundations of international law by Hugo Grotius in the early 17th century, he said that “the oceans and seas of our planet belonged to all mankind, and no nation could claim ownership to the oceans and seas.”

“India cannot claim the Indian Ocean, and Mexico cannot claim the Gulf of Mexico, in the same way that the Philippines cannot claim the Philippine Sea, just because historically these bodies of water have been named after these countries,” he further stressed.

Lastly, Carpio explained that historical facts dating back to the age of discovery in the early 15th century until the 17th century or even earlier “have no bearing whatsoever in the resolution of maritime disputes under UNCLOS.”

The magistrate reiterated that China’s claim of a “historical right” to the waters enclosed within the 9-dash lines in the South China Sea is utterly without basis under international law.

He explained that UNCLOS had extinguished all historical rights of other states within the 200-nautical mile exclusive economic zone of the adjacent coastal state.

This, he said, is the reason why the zone is called “exclusive,” as no state other than the adjacent coastal state can exploit economically its resources.

China claims that Panatag (Scarborough) Shoal, which it branded Huangyan Island, is the Nanhai island that 13th century Chinese astronomer-engineer-mathematician Guo Shoujing allegedly visited in 1279 on orders from Kublai Khan – the first emperor of the Yuan Dynasty – to conduct a survey of the Four Seas to update the Sung Dynasty calendar system.

This supposed visit of Gou Shoujing to Panatag Shoal in 1279 is the only historical association of China with the shoal.

But in his speech during the 19th National Convention and Seminar of the Philippine Women Judges Association last March, Carpio stressed that China already used the same claim in its dispute with Vietnam over the Paracels.

He also cited a Jan. 30, 1980 document entitled “China’s Sovereignty Over Xisha and Zhongsa Islands Is Indisputable” published in Beijing Review, in which the country’s foreign ministry officially declared that the Nanhai island that Guo Shoujing visited in 1279 was in Xisha or what is internationally called the Paracels, a group of islands more than 380 nautical miles from Panatag Shoal.

Carpio said Guo could not have gone ashore to “visit” the shoal because “it was just a rock, with no vegetation, and did not even have enough space to accommodate an expedition party.”

The SC justice also argued that a state may only claim “historical rights” over waters that are part of its internal waters or territorial sea.

He also said China failed to satisfy any of the conditions to claim historical rights under the general principles and rules of international law, such as formal announcement to the international community, continuous exercise of sovereignty over the waters it claims as its own internal waters or territorial sea, and recognition from other states.

He added that China’s 9-dash line claim was “never effectively enforced.”

Since last year, Carpio had been bringing up the West Philippine Sea issue in a number of public speeches.

In a speech before members of the Philippine Bar Association in August last year, Carpio expressed fear that territorial claims over disputed areas of the West Philippine Sea could end up being dictated by naval strength and not by the rule of law, citing the tendency of China to ignore arbitration proceedings.

In a speech three months earlier before law students of the Pamantasan ng Lungsod ng Maynila, Carpio noted that under the United Nations Charter, the International Court of Justice can ask the UN Security Council to enforce its decision. The International Tribunal for the Law of the Sea or ITLOS is also a UN body.

Carpio wrote the Supreme Court decision that unanimously affirmed the constitutionality of the Philippine Archipelagic Baselines law of 2009, beating an UNCLOS deadline.

Diplomacy vs aggression

At Malacañang, presidential spokesman Edwin Lacierda said the administration would continue to match China’s growing aggressiveness with diplomacy.

“People seem to underestimate... the power of the diplomatic track but there has been a growing approval from the international community,” Lacierda said in a press briefing.

“We believe that with the international community’s support, we can persuade China to act as a responsible member of the international community,” he added.

He said they still have to verify a report from the South China Morning Post that China would establish a military base after the planned expansion of an artificial island located on Kagitingan (Fiery Cross) Reef.

Chinese Naval Research Institute expert Li Jie was quoted in the SCMP report as saying that the military base would feature an airstrip and a port. The base will also have storage for military supplies. China has already constructed an observation post on the reef, the report said.

Jin Canrong, a professor of international relations in Renmin University in Beijing, said in the same report that the artificial island would be twice the size of the US military base in Diego Garcia, which occupies an area of 44 square kilometers in the Indian Ocean.

Jin also said that the proposal to construct the artificial island was submitted to the Chinese central government and that its approval would depend on the progress of reclamation on Mabini (Johnson South) Reef. – Aurea Calica, Pia Lee-Brago