Carpio: China claim illegal under UNCLOS

By Jojo Malig,

Posted at May 24 2013 12:59 AM | Updated as of May 24 2013 09:01 AM

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MANILA, Philippines - China's  9-dashed line claim to almost the entire West Philippine Sea violates the the United Nations Convention on the Law of the Sea (UNCLOS), according to Supreme Court Senior Associate Justice Antonio Carpio. 
Carpio, in a speech before graduates of the Pamantasan ng Lungsod ng Maynila on May 18, said Beijing's claim takes away the maritime entitlements of the Philippines, Vietnam, Malaysia, Brunei, and Indonesia to exclusive economic zones and extended continental shelves, which is in gross violation of UNCLOS. 
"In the case of the Philippines, China's 9-dashed line claim takes away our exclusive economic zone and extended continental shelf in the West Philippine Sea beyond 30 to 50 nautical miles from the baselines of the Philippines," he said. "That deprives the Philippines of 80% of its exclusive economic zone, and 100% of its extended continental shelf, in the West Philippine Sea."
The Philippines ratified the UNCLOS in 1984, while China signed it in 1996. A total of 165 coastal and landlocked states have signed the international agreement.
China, meanwhile, created its 9-dashed line claim in 1948 and continues to use it as a basis for its maritime claims. An Australian defense expert has called it illegal
Carpio echoed this, explaining that  "by ratifying UNCLOS, member-states bound themselves, and gave their consent in advance" on all UNCLOS standards and mechanisms.
Not a 'Chinese lake'
"China's 9-dashed line claim converts the South China Sea into an internal Chinese lake,allowing China to unilaterally appropriate for itself what belongs to other sovereign coastal states, in defiance of UNCLOS," he said.
He quotes director-general of the Maritime Institute of Malaysia as saying that China's claim is "frivolous, unreasonable and illogical... by no stretch of the imagination can the South China Sea be considered by any nation as its internal waters or historic lake."
"China's 9-dashed line claim simply cannot co-exist with UNCLOS –one kills the other," Carpio said. "To uphold China's 9-dashed line claim is to wipe out centuries of progressin the law of the sea."
He said if China's claim is upheld, it will "embolden other naval powers to claim wholesale other oceans and seas, taking away the exclusive economic zones and extended continental shelves of other coastal states."
China's claim is also undermining UNCLOS itself, he added. "Today, there is no graver danger to the future existence and survival of UNCLOS than China's 9-dashed line claim to almost the entire South China Sea. Scholarsof the law of the sea all over the world consider China’s9-dashed line claim as utterly without basis ininternational law."
Carpio also said there should be no overlapping EEZs in Luzon between China and the Philippines.
"There is no Chinese-claimed island in the West Philippine Sea opposite Luzon that is within 400NM from Luzon. The baselines of the Paracel Islands are more than 400NM from the Luzon baselines," he said. "The rocks in Scarborough Shoal are not islands and cannot generate exclusive economic zones."
Beijing bound to international arbitration
The senior member of the Philippines' high court said Beijing is likewise bound to follow the dispute settlement mechanism specified under UNCLOS.
He said if a country opts outof compulsory arbitration, compulsory conciliation is still required. "There is no opt-out for any member-state on compulsoryconciliation." 
Carpio added that if an UNCLOS member-state rejects compulsory arbitration or compulsory conciliation, the process will still continue and a decision will be issued by the International Tribunal on Law of the Sea (ITLOS), or an arbitral tribunal under UNCLOS.
In January, Manila initiated arbitration proceedings under UNCLOS to clarify the country's maritime entitlements in the disputed West Philippine Sea. 
Beijing has rejected the international arbitration process, with Chinese Foreign Ministry spokesperson Hong Lei calling it "weird." 
China instead wants bilateral talks with the Philippines, while Beijing is deploying ships and personnel to disputed areas in the West Philippine Sea. 
Carpio, who wrote the Supreme Court decision that unanimously affirmed the constitutionality of the Philippine Baselines Law, said Manila is asking the arbitral tribunal to rule whether China's -dashed line claim or laws can take away the Philippines'exclusive economic zone and extended continentalshelf asdeterminedunder UNCLOS.
"We are also asking the tribunal to rule on the legal status of the land features in the West Philippine Sea... We are further asking the tribunal to rule whether China can occupy and erect structures on fully submerged reefs that are within the Philippines' exclusive 200-nautical-mile economic zone," he added.
He said the arbitral tribunal should also rule whether China can unilaterally appropriate maritime space in the high seas.
Rogue nation
The problem, however, is requiring China to respect an arbitration decision and enforcing the ruling even if Manila wins its case. "The Philippines does not have the naval might to compel China to comply."
He said even for rulings by the International Criminal Court, the United Nations Security Council can only act if none of the 5 permanent members will oppose a resolution. Each of the 5 permanent members, which include China, may veto it. 
Carpio also said UNCLOS does not provide any enforcement mechanism for decisions handed down either by ITLOS or by an arbitral tribunal.
The high court's senior magistrate said that the best recourse for the Philippine government is to appeal to world opinion.
"A nation should follow the rule of law if it wants to be accepted as a member and leader of the community of civilized nations," he said. "If a nation refuses to comply with the rule of law, then it becomes a rogue nation, an outcast."
"A nation that aspires to be a world power but refuses to follow the Rule of Law is a danger to peace and stability in our world," Carpio said.

The rule of law in the West Philippine Sea dispute