Building on the July 12, 2016 arbitral award
Editor’s Note: Following are the remarks of Justice Antonio T. Carpio (Ret.) as Guest Speaker during the 14th Virtual International Conference on the South China Sea held on Saturday, September 7, 2024, under the sponsorship of the National Youth Movement for the West Philippine Sea.
The July 12, 2016 Arbitral Award is the landmark ruling that defines the maritime rights and duties of coastal states, as well as non-coastal states, in the South China Sea.
By striking down China’s nine, now 10-dash line as a claim to waters and resources in the South China Sea, the Arbitral Tribunal emphatically affirmed that maritime rights in the seas of our planet can be claimed only in accordance with the UN Convention on the Law of the Sea or UNCLOS.
Thus, China and all other coastal states of the world can only claim a maximum maritime zone of up to 350 nautical miles — 12 NM territorial sea and 200 NM Exclusive Economic Zone both measured from baselines along the coast of the state, plus a maximum of 150 NM Extended Continental Shelf measured from the outer limits of the 200 NM EEZ.
This means that in the South China Sea there are High Seas consisting of some 20 to 25% of the South China Sea. The waters of the High Seas, the fish in the High Seas, and the non-living resources in the seabed of the High Seas beyond national jurisdiction, belong to all mankind. This means all nations of the world have a legitimate and material interest in preserving the High Seas in the South China Sea as part of the global commons.
While China recently approved the High Seas Treaty, China is saying that the High Seas Treaty does not apply to the South China Sea. For China, there are no High Seas in the South China Sea because under China’s 10-dash line map, the entire High Seas of the South China Sea are part of its national territory.
China is also claiming, under its 10-dash line, vast areas of the EEZs of Vietnam, the Philippines, Malaysia, Brunei and Indonesia as part of China’s national territory. Under UNCLOS, there is freedom of navigation and overflight, including the conduct of naval and aerial drills, in the High Seas and EEZs of the world. China is denying to all nations of the world freedom of navigation and overflight in all the waters within China’s 10-dash line, even in waters of the High Seas and EEZs of the South China Sea.
All countries of the world have a legitimate and material interest in opposing China’s illegal and expansionist claim, and in preserving freedom of navigation and overflight, in the High Seas and EEZs of the South China Sea.
China is saying that UNCLOS does not apply to the waters and resources within the 10-dash line, consisting of almost the entire South China Sea, in the same way that China is now saying that the High Seas Treaty does not apply to the High Seas of the South China Sea.
China is waging a lawfare and gray zone warfare to overturn the existing rules-based international order as embodied in the UN Charter, UNCLOS and general international law. In its lawfare, China is denying the application of UNCLOS and the High Seas Treaty to the South China Sea. In its gray zone warfare, China is using, under its new coast guard law, threat of force to implement its 10-dash line, in clear violation of the UN Charter, which mandates that all disputes between states shall be settled by peaceful means, outlawing the use or threat of force.
How should the Philippines respond to China’s brazen attempt to overturn the rules-based international order? As in the landmark July 12, 2016 Arbitral Award, the Philippines’ response should be to bring China to an international tribunal to declare illegal, void, and invalid China’s coercive and destabilizing actions in the West Philippine Sea.
The Philippines should file an arbitration case against China on China’s claim to the extended continental shelf of the Philippines off the western coast of Palawan. China is claiming maritime zones more than 350 NM from Hainan Island in clear violation of UNCLOS.
The Philippines should also file an arbitration case against China for ramming and water cannoning Philippine coast guard vessels in Escoda Shoal and other maritime areas within the Philippine EEZ in the West Philippine Sea.
Our response to China’s lawfare and gray zone tactics is to bring China to UNCLOS tribunals and pile up more arbitral awards against it on top of the landmark July 12, 2016 Arbitral Award. China dreads another arbitral award that will bury further its 10-dash line, another arbitral award that all countries of the world can invoke to prevent China from overturning the rules-based international order.
We ask all like-minded countries to join the Philippines in preserving UNCLOS as the constitution for the oceans and seas of our planet. – Rappler.com