SC Justice Carpio on China’s claims

By Ducky Paredes 
Malaya

Antonio-Carpio.17SENIOR Associate Justice Antonio Carpio says that an examination of early maps made by Chinese cartographers prove that the “historical facts” claimed by China for their newly created nine-dash line is a fiction of their imagination.

“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,” says Justice Carpio.

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

Carpio said even the maps of the Philippines and other nearby countries made by European cartographers also never showed the contested islands as part of China.

In fact. Justice Carpio says 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 fact that this part of the world’s ocean is called the “South China Sea” as basis for China’s historical claims also proves nothing.

“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’.”

Citing foundations of international law by Hugo Grotius in the early 17th century, Carpio notes 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 stresses.

Carpio also explains 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.”

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

UNCLOS extinguished all historical rights of other states within the 200-nautical mile exclusive economic zone of the adjacent coastal state. This is the reason why the zone is called “exclusive,” as no state other than the adjacent coastal state can exploit the economic resources in this EEZ. This is why the Unite Nations Law of the Sea (UNLOS) had to be signed by the countries of the world before it could take effect and China was among the countries that signed this!

Yet, China now claims that Panatag (Scarborough) Shoal, which it now calls 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 claim by China of historical association of China with the shoal, which Carpio, in an earlier speech pointed out, was what China also used 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 the 13th Century Chinese astronomer 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 says 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, under UNLOS, a state may only claim “historical rights” only over waters that are part of its internal waters or territorial sea.

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 new claims of the existence of the newly fashioned 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.

The South China Morning Post China (SCMP) reports that China plans to put up a military base after the expansion of an artificial island located on Kagitingan (Fiery Cross) Reef.

Chinese Naval Research Institute expert Li Jie, says in the SCMP report, that the military base would feature an airstrip and a port. The base will also have storage for military supplies.

Jin Canrong, a professor of international relations in Renmin University in Beijing, also 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.

***

Panatag Shoal (Scarborough Shoal) has always been part of the Philippines that from the 1960s to the 1980s, Philippine and American planes used it as an impact range during joint military exercises.

Neither China nor any other country ever protested the bombing runs on the shoal.

China is claiming the resource-rich shoal off Zambales province as part of its territory, seizing it after a two-month maritime standoff with the Philippines in 2012.

“If the Philippines can bomb a shoal repeatedly over decades without any protest from neighboring states, it must have sovereignty over [that] shoal,” Carpio says.

In his talks, Carpio shows copies of maps of China dating back to the 13th century and to the 1930s, made by Chinese and foreigners, that show the southernmost territory of China has always been Hainan Island and that Chinese territory never included the Spratly Islands in the middle of the South China Sea and Panatag Shoal in the West Philippine Sea.

“There is not a single ancient map, whether made by Chinese or foreigners, showing that the Spratlys and Scarborough Shoal were ever part of Chinese territory,” Carpio says.

Carpio called China’s claim to almost the entire South China Sea, which Beijing calls “nine-dash line,” a “gigantic historical fraud” because it claims that its southernmost territory is James Shoal, which is 90 kilometers from the coast of
Bintulu, Sarawak, Malaysia–within Malaysia’s exclusive economic zone–and more than 1,700 km from China.
Under international law, a country’s territory extends up to only 370 km from its shores.

Carpio said Philippine maps from 1636 to 1940, or for 340 years, “consistently show Scarborough Shoal, whether named or unnamed, as part of the Philippines.”

Spain also ceded Scarborough Shoal to the United States under the 1900 Treaty of Washington.

“In sum, China’s so-called historical facts to justify its nine-dash line are glaringly inconsistent with actual historical facts, based on China’s own historical maps, constitutions and official pronouncements,” says Carpio.

“China has no historical link whatsoever to Scarborough Shoal. The rocks of Scarborough Shoal were never bequeathed to the present generation of Chinese by their ancestors because their ancestors never owned those rocks in the first place.”

***

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One Response. Have your say.

  1. Mac Flores, Jr. says:

    The readers should be thankful to Justice Carpio’s speeches, backed up by some written articles.

    The foregoing articulate the legal rights and basis of PHL and other concerned countries stand against China’s historical claim represented by its 9 dash lines in the disputed Pacific seas.

    Assuming the PHL wins its case in the International Court but China refuses to obey the decision by asserting its veto right in case the decision reach the UN Security Council, how will the PHL resolve its problem, especially if China has already taken and occupied portion of PHL territory while the case was still in process and after a favorable decision is completed?

    The PHL should have solid action plans for execution that contain calculated risk that is tailor-fit for a worse scenario not to happen, with or without the help from an ally.

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