‘No basis in China’s historical right over West Phl Sea’

MANILA, Philippines - China’s most salient argument in its territorial claim over the West Philippine Sea – its historical right – holds no water, according to a senior justice of the Supreme Court (SC).

“China’s claim to a historical right to the waters enclosed within the nine-dash lines in the South China Sea is utterly without basis under international law,” Senior Associate Justice Antonio Carpio said, echoing what he said is “almost universal opinion of non-Chinese scholars on the law of the sea.”

In his speech during the 19th National Convention and Seminar of the Philippine Women Judges Association last week, Carpio cited China’s claim of “historical facts” on Scarborough Shoal.

China claims that Scarborough Shoal, which it calls Huangyan Island, is the Nanhai Island that 13th century Chinese astronomer-engineer-mathematician Guo Shoujing allegedly visited in 1279 on the order of 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 Scarborough Shoal in 1279 is the only historical link that China claims to Scarborough Shoal.  

But Carpio stressed that China already used the same claim in another territorial dispute – against Vietnam over the Paracels islands.

He cited a January 30, 1980 document titled “China’s Sovereignty Over Xisha and Zhongsa Islands Is Indisputable” published in Beijing Review, saying that China’s Ministry of Foreign Affairs officially declared that the Nanhai Island that Guo Shoujing visited in 1279 was in Xisha or what is internationally called the Paracels, a group of islands more than 380 NM from Scarborough Shoal.

“China issued this official document to bolster its claim to the Paracels to counter Vietnam’s strong historical claims to the same islands. The astronomical observation point Nanhai was today’s Xisha Islands. It shows that Xisha Islands were within the bounds of China at the time of the Yuan dynasty,” Carpio pointed out.

Carpio, who has apparently been studying the territorial dispute pending before the United Nations International Tribunal on Law of the Seas (ITLOS), also noted that it is puzzling how Guo Shoujing went ashore to “visit” Scarborough Shoal when “it was just a rock, with no vegetation, and did not even have enough space to accommodate an expedition party.”

“Worse, the Chinese historical account that Guo Shoujing installed one of the 27 Chinese observatories on Nanhai Island clearly rules out any possibility that Scarborough is Nanhai Island because no observatory could have possibly been physically installed on Scarborough Shoal at that time,” he added.

Assuming China’s historical claim is valid, it should no longer be honored under international law, particularly the United Nations Convention on the Law of the Sea (UNCLOS), Carpio said.

“First, UNCLOS extinguished all historical rights of other states within the 200 nautical miles exclusive economic zone of the adjacent coastal state. That is why this 200 NM zone is called ‘exclusive’ – no state other than the adjacent coastal state can exploit economically its resources. Fishing rights that other states historically enjoyed within the EEZ of a coastal state automatically terminated upon the effectivity of UNCLOS,” he explained.

“Moreover, UNCLOS prohibits states from making any reservation or exception to UNCLOS unless expressly allowed by UNCLOS.  Any reservation of claims to historical rights over the EEZ or ECS of another coastal state is prohibited because UNCLOS does not expressly allow a state to claim historical rights to the EEZ or ECS of another state. In short, UNCLOS does not recognize ‘historical rights’ as basis for claiming the EEZs or ECSs of other coastal states,” he added.

The SC justice also argued that a state can only claim “historical rights” over waters that are part of its internal waters or territorial sea.

“The South China Sea, beyond the 12 NM territorial sea of coastal states, has never been considered as the internal waters or territorial sea of any state. Since time immemorial, ships of all nations have exercised freedom of navigation in the South China Sea,” he noted.

“If the South China Sea were the internal waters or territorial sea of China, then no state could have exercised freedom of navigation and freedom of over-flight over the South China Sea,” he added.

In other words, Carpio said China’s claim to the waters enclosed by the nine-dash line claim does not fall under any of the maritime zones – internal waters, territorial sea, EEZ and ECS – recognized by UNCLOS that can be claimed by a coastal state.  

Lastly, the SC justice said China failed to satisfy any of the conditions to claim historical rights under the general principles and rules of international law: 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 and tolerance from other states.

China’s nine-dash line claim was “never effectively enforced.”

“China officially notified the world of its nine-dash line claim only in 2009 when China submitted the nine-dash line map to the United Nations Secretary General. Not a single country in the world recognizes, respects, tolerates or acquiesces to China’s nine-dash line claim,” Carpio stressed.

And while the issue has not yet reached the High Court, Carpio said the government should fight China’s claim that puts at stake 80 percent of its exclusive economic zone and 100 percent of its extended continental shelf in the West Philippines Sea.

It was not the first time Carpio publicly defended the government’s claim on the disputed islands and waters.

Last year, the magistrate said he believes the Philippines will win the arbitration case before ITLOS. But at the same time, he was pessimistic as to whether China would comply with a hostile ruling. Because of this, he said international support to the Philippines’ case would be vital.