This is the second of a series on the South China Sea dispute based on Justice Antonio Carpio’s e-book, The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea. I endorse the book to lawyers and non-lawyers alike, certainly to all patriots. I have made this required reading for all my constitutional law, public international law, and environmental law classes.
In the previous column, I looked at how Justice Carpio set up our understanding of the dispute by looking at historical accounts and the development of the law of the sea. In this column, I share Carpio’s understanding of the true nature and extent of the territorial and maritime disputes. In essence, he frames this as follows: “The dispute in the South China Sea is rooted in conflicting territorial and maritime claims over islands, rocks, reefs, and maritime zones among six countries bordering the South China Sea.”
As described in the book, the territorial Disputes, are those in the Spratlys, Paracels, and Scarborough Shoal.
In the Spratly Islands, China, Vietnam, the Philippines, Malaysia, and Brunei have territorial disputes, with China and Vietnam claiming the entire Spratlys, while the Philippines and Malaysia claiming only certain islands and rocks above water at high tide. Louisa Reef, within Brunei’s EEZ and about 1 meter above water at high tide, is claimed by Brunei, and by China as Nantong Reef.
Similarly, China and Vietnam have a territorial dispute over the Paracels.
China and the Philippines have a territorial dispute over Scarborough Shoal. The maritime entitlements of rocks above water at high tide, like Scarborough Shoal, can be independently determined without deciding which state exercises sovereignty over the rocks. One does not need to know which state has sovereignty over such rocks to conclude with certainty that such rocks are not capable of sustaining human habitation or economic life of their own. Not a single blade of grass grows on the rocks of Scarborough Shoal, and not a single drop of fresh water can be squeezed from those rocks. Scarborough Shoal, whose biggest rock is 1.2 meters above water at high tide, can generate only a 12 NM territorial sea, regardless of which state has sovereignty over the shoal.
Aside from the territorial dispute, there are also maritime disputes to be dealt with. The distinction is important to understand the significance of the arbitration case the Philippines filed against China that Justice Carpio discusses lengthily in the book and which I will summarize in a later column.
The Exclusive Economic Zones of Asean states China, on the one side, and on the other side, Vietnam, the Philippines, Malaysia, Brunei, and Indonesia have a maritime dispute with China whose nine-dashed line encroaches on the EEZs of these five Asean states.
The dispute between the Philippines and China involves the EEZ and ECS70 of the Philippines in the West Philippine Sea, which forms part of the South China Sea. Under Administrative Order No. 29 (2012), the West Philippine Sea refers to the waters covered by the maritime entitlements (territorial sea and EEZ) of the Philippines in the South China Sea. The West Philippine Sea also includes the Philippine ECS. Under Article 77 (3) of UNCLOS, the right of the Philippines to its continental shelf, including its 150 NM extended continental shelf, does not depend on any occupation or proclamation. Such continental shelf inheres ipso facto and ab initio to the Philippines by virtue of its sovereignty over its land territory.
The Philippine arbitration case against China actually does not involve a territorial dispute but exclusively focuses on maritime disputes involving the interpretation or application of UNCLOS. Thus, Justice Carpio clarifies that “The Philippines did not ask the Arbitral Tribunal to rule which state is sovereign over certain islands or rocks above water at high tide. Rather, the Philippines asked the Arbitral Tribunal to rule on the extent of the maritime entitlements (0, 12 or 200 NM) of certain geologic features, regardless of which state, if any, exercises sovereignty over them.”
Justice Carpio’s e-book points out that the Spratlys consist of about 750 geologic features lying off the coast of Palawan, most of which are submerged at all times while others are above water only at low tide. Only 28 features remain above water at high tide.
China’s claims to the Spratlys is based on the supposed award made in the Cairo, Potsdam and San Francisco Conferences. Again, according to Justice Carpio, these claims are unfounded. The 1943 Cairo Conference, attended by Roosevelt, Churchill and Chiang Kai Shek, produced a press release that “territories taken from China by Japan, including Manchuria, Taiwan and the Pescadores, would be returned to the control of the Republic of China after the conflict ended.” Yet, the Spratlys were never mentioned because these islands were not taken by Japan from China but from the French and the Spratlys were then unoccupied when Japan took over these islands. Same goes with the 1951 San Francisco Peace Conference, when the motion of the USSR to award the Paracels and the Spratlys to China was defeated by a vote of 46 to 3, with one abstention.
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