The rule of law in the South China Sea dispute
“This battle to defend our Exclusive Economic Zone (EEZ) from China, the superpower in our region, is the 21st century equivalent of the battles that our forebears waged against Western and Eastern colonizers from the 16th to the 20th century… In this modern-day battle, the best and the brightest legal warriors in our country today must stand up to fight to free… the Philippines from foreign encroachment… we must rely on the most powerful weapon invented by man in the settlement of disputes among states — a weapon that can immobilize armies, neutralize aircraft carriers render irrelevant nuclear bombs and level the battlefield between small nations and superpowers. That weapon — the great equalizer — is the rule of law. Under the Rule of Law, right prevails over might.”
That is the succinct preface to Supreme Court Senior Associate Justice Antonio Carpio’s e-Book, The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea, launched in Makati City on May 4, last week. The 264-page interactive online book (which can be downloaded for free) collates some 140 lectures, speeches, and papers over the ongoing five-year personal advocacy of Justice Carpio to fight for Philippine rights and entitlements in territorial and extraterritorial waters under the United Nations Convention on the Law of the Sea (UNCLOS).
He pushes for the Rule of Law against the People’s Republic of China’s insistence on their unilateral creation of an arbitrary “nine-dashed line” that “claims almost the entire resources of the South China Sea as if there were no other land masses or coastal states that border the same sea.”
Justice Carpio believes “China’s grand design is to control the South China Sea for economic and military reasons.” Today, China takes 50% of the fish catch in the area, having the world’s largest fishing fleet of some 220,000 vessels fishing for its 1.4 billion fisheating people, the largest population in the world.
Citing previous research, Justice Carpio sees China wanting to drill the 130 billion barrels of oil believed to be in the South China Sea (more than the reserves of Kuwait or United Arab Emirates). This will serve China, the largest net importer of oil, for at least the next 22 years. China is suspected to be also interested in methane hydrates in the South China Sea, which would secure China’s alternate fuel needs for the next 130 years!
China is also building up the contested waters as “sanctuary” for nuclear- armed submarines, far from the surveillance of the US. China also wants a “secondstrike” nuclear capability, shoulder to shoulder with the US and Russia, after a possible land based first strike — or perhaps any aggressor will already be intimidated against any strike at all on China, armed as it would be with nuclear capability. A laughably narrow sliver of space between the nine- dashed line and the Philippine coastline in the West Philippine Sea is all that China wants to leave the Philippines, Justice Carpio says in his e-Book.
Historical evidence of 111 old maps of the Philippines and the Chinese coastline, from digitized archives of various national museums abroad are presented in Justice Carpio’s e-Book, for the reader to interactively verify and proceed to further inquiry into the background and history of these maps and how they prove the Philippines’ legitimate claims in the South China Sea.
Map 54 by the Jesuit Pedro Murillo Velarde in 1734 showed “Los Bajos de Paragua (the shoals of Paragua, later renamed “The Spratlys”) and the Scarborough Shoal or Bajo de Masinloc as part of Philippine territory. The original of this 283-year-old map, measuring 1,120 by 1,200 mm was exhibited at the e-Book launch.
At Justice Carpio’s urging, it was bought at a Sotheby’s auction in 2012 by Filipino businessman Mel Velarde for £ 170,500 ( P12,014,463.09) and the latter subsequently donated it to the National Museum (for lack of the Museum’s ability to spend more than P5 million on artifacts) — and to the Filipino people.
Justice Antonio Carpio believes “China’s grand design is to control the South China Sea for economic and military reasons.”
True patriots all — passionate justice fighter Justice Carpio and all who, in their own less demonstrative but equally fervent love of country are now deeply violated by China’s modern-day attempt at colonizing and enslaving a peace-loving weaker neighbor.
Filipinos could have sighed a renewed faith in the universal Rule of Law, when in July 2016 the UNCLOS Tribunal settled the arbitral case that the Philippines had bravely filed against China to cease and desist in its aggression in the South China Sea.
But the favorable decision came out just as the political governance changed in the May 2016 elections, and the arbitral victory was hardly noticed nor claims ever availed of. China of course never complied with the conditions set by the Arbitral decision in favor of the Philippines.
Justice Carpio, and all similarly imbued with nationalistic fervor to fight against the continuing exploitation and usurpation by China in Philippine waters, were perhaps anticipating that the firstever arbitral decision in favor of a small country would be showcased at last week’s ASEAN Summit hosted by the Philippines.
After all, Vietnam, the Philippines, Brunei, Malaysia and Indonesia, who have maritime disputes with China, are all ASEAN members, and signatories to UNCLOS. But no, the summit did not even mention the award to the Philippines affirming its EEZ rights in the South China Sea. President Duterte said: “it was pointless discussing Beijing’s contentious activities in the South China Sea at this week’s Southeast Asian summit, and no one dared to pressure China anyway (Reuters 04.27.2017).”
Justice Carpio in his “Final Word” in his e-Book stresses the responsibility of Leaders under the well-recognized rule of international law to carry out obligations and responsibilities under the (UNCLOS) agreement, albeit more on the basis of “good faith (Listen, China!)”
And on the side of the Philippines: “Every act, declaration and statement of the leaders of the nation on the enforcement of the Award of the Arbitral Tribunal must be carefully studied and weighed to prevent any opposing state from claiming that the Philippines has abandoned expressly or impliedly, what it has won in the arbitration case.”
“The inaction of a state which is faced with a situation constituting threat or an infringement of rights… Acquiescence thus takes the form of silence or absence of protest on circumstances that generally call for a particular reaction signifying an objection,” Justice Carpio quotes. “Failure to heed this caveat, for any reason, is unforgiveable.
Time to stand up for the Rule of Law.