FINAL ARBITRAL AWARD WEST PHILIPPINE SEA DISPUTE BY JUSTICE
CARPIO
- 9-dash line
- Chinas new map 10-dash line
o China added new lines in 2015
o Claimed that the 10-dashed lines are part of its national boundaries
- Core dispute: Chinas claim to 80% of Philippine EEZ
- Our main concern is our EEZ. The oil, gas, minerals and fish within our EEZ
- China claims the reed bank, it also claims the EEZ of Vietnam and even
auctioned it off claiming it as their own
- China claims around 85.7% of the waters of the south china sea
- History: Chinas Creeping expansion in the SCS from 1946 to 2016
o Before WWII, Chinas suthermost defense parameter was Hainan
Island. Before the War, China did not have a single soldier or sailor
stationed in any SCS island outside of Hainan Island. In 1946, right
after the war, China took over the Amphitrite Group of the Paracels and
Itu Aba in the Spratlys following the defeat of the Japanese, moving
Chinas defense parameter southward.
o China vacated the Itu Aba in 1950 and 1956, when Taiwan occupied Itu
Aba. In 1974, China forcibly dislodged the South Vietnamese from the
Cresent group of the Paracels.
o In 1995 China seized Mischief rief from the PH
o ..
- Chinas grand design in the south china sea
o China wants all the fisheries, oil, gas, and mineral resources within the
9-dash line
o China is also the largest importer of petroleum in the world. China
wants the lions share of the oil and gas in the South China Sea.
o The south china sea is also rich in methan hydratres said to be one
of the fuels of the future. China wants to secure more methane
hydrates for itself
o China also wants the South China sea as a sanctuary for its nuclear-
armed submarines from from surveillance by the US submarine
hunting Poseidon airplanes or US nuclear attack submarines.
o China wants a second-strike nuclear capability, joining the ranks of US
and Russia
- Maritime Zones under the UNCLOS
o EEZ all the fish, mineral sources, oil and gas can only be exploited
exclusively by the PH (12NM from the territorial sea)
o Common Heritage of Mankind
If a state wants to exploit this, they have to secure an
authority from the International Sea Authority
o Maximum that a coastal state can claim is 350NM from its baseline
But china is claiming reed bank 555NM from its baseline
- UNCLOS
o Considered to be the highest achievement of man in creating a legal
code because its complete, very detailed and it has its own dispute
settlement mechanism
- Low Tide Elevation vs Rock/Island
o Low Tide Elevation not considered territory, it is part of the
submerged
o Hightide elevation its is considered land territory
o Island it is entitled to 12nm; if it is capable of human habitation, it is
entitled to EEZ
o Itu Aba it is just a rock
- In 1995, China seized mischief reef from the PH
o China put up some military airbase
o Lowtide elevation is present
o Carpio explained to china that it is a lowtide elevation and under the
UNCLOS, only the PH can exploit that
Contention of China: No, there is nothing to discuss. It is
ours under the 9-dash line, hence we have indisputable
sovereignty
o We kept on talking to China for 17 years, nothing happened
- 2012, China seized Scarborough Shoal
o Scarborough Shoal = rock
o But China said that they have indisputable sovereignty over it under
the 9-dadh line
- Dispute was brought to arbitration under the UNCLOS tribunal
- 5 important issues raised:
o Chinas claim to historic rights under the 9-dash line is contrary to
UNCLOS
o No feature in Spratyls or even Itu Aba
o Scarborough Shoal is a rock entitled only to 12 NM Territorial Sea;
Fli[ino Fishermen have traditional fishing rights in territorial sea of
Scarborough shoal
o China caused severe harm to the Marine Environment
o China committed unlawful act against the PH
- Ruling:
o 9-dash line have no legal effect and cannot serve as legal basis to
claim any maritime entitlement under UNCLOS. In short, there was no
legal basis for China to claim historic rights to resources within the sea
areas falling within the 9-dash line
o Chinas maritime zones, just like those of other coastal states, cannot
extend beyond the limits prescribed under UNCLOS
o All historic rights in the EEZ, ECS and high seas were extinguished
upon effectivity of the UNCLOSE
o There was no evidence that China has historically exercised exclusive
control over the water of the South China Sea or other resources.
- China never had historic rights to the south china sea
- Maps:
o 1136 AD Hua Yi Tu
o 1136 Yu Ji Tu
o All the maps in the different dynasties show that Hainan Island is the
southern most territory of the China
- For centuries the south china sea was known by navigators throughout asia as
the CHAMPA SEA, names for a great empire that controlled all of central Vietnam
- Islands in the Champa Sea Had Austronesia Names
o The island in the map are called Pulo which means island or isolated
place this is also a tagalog word
- 1690 Coronollie Map
o Coronolli is a Franciscan monk who came to the PH
- 1734 Murillo Velarde Map Mapa delas Yslas Filipinas
o Mother of all Philippine Maps
o For the first time in any map, scarborough was given a name called
Panakot which means DANGER since if you are not aware of the
presence of said scarborough shoal, then you will hit it
o Spratlys island
- Expansion of Southernmost Territory of China started in 1932
o In 1932, the French occupied the uninhabited Paracels. China sent a
Note Verbale to the French Government on Sept 29, 1932 protesting
the French occupation of the Parcels.
In the note, china said the amphitrited groups and the
crescent group claims that these are the southernmost part
of the China (own admission to the world that their southern
most part does not include scarborough or spratlys)
- How big is 12 NM around hightide rocks thats around 2x the size of manila
- Ruling on Status of Geological Feauture in Spratlyls to Generate 200 NM = see
jobens pic
o Spratlys = X capable of human habitation or economic life of its own
o The spratlys cannot be taken as a single unit to determine capability to
sustain human habitation or economic life
- 7 reefs
o Cuerteron Reef
o Fierry Crossreef
o Gaven Reef
o Subi (Zamora) Reef
o Mischief Reef
o Johnson south reef
o Mckennan Reef
- Ruling on the status of geological features in Spratlys
o 5 are hightide
o 2 are lowtide Michief Reef and Subi Reef
- Territorial disputes cannot be submitted to arbitration in the tribunal
- Ruling on Scarborough Shoal Hight Tide Elevation Incapable of human
habitation
o It is not entitled to 200NM EEZ
o High tide elevation entitled only to 12NM
o We never asked the tribunal to rule who has ownership since the
tribunal does not have jurisdiction, only asked whether or not it is
entitled to 200NM
- The PHs EEZ in the South china Sea is larger than its Total Land Area
- Ruling on Harm to the marine environment
o China violated its obligation under the UNCLOS to protect and
preserve the marine environment
o Tanmen Fishermans Harvest of Giant Clams caused severe
damage to the coral reefs
o Massive destruction by the dredgers of China destroying the coral
reefs
- Mischief Reef pearl harbor of China
o Only 120NM from Palawan
- China claimed reed bank in 2010 and reiterated it in 2011
- Chinese coast guard vessels harassed a PH survey ship in 2011
- Next steps enforcement of ruling
o China said that they will ignore the ruling because it is merely a scrap
of paper
o UNCLOS said that the ruling is final and unappelable
- So what do we do?
o 2 aspects in enforcement of Ruling:
1. Enforcement of the ruling the worlds naval powers with respect to
freedom of navigation and overflight for military vessels and
aircraft in the high seas and EEZs of the South China Sea
2. Enforcement of the ruling by the PH with respect to its exclusive
right to exploit the resources of its EEZ in the South China Sea
- Worlds Naval Powers will sail and fly in the high seas and EEZs of SCS that is
why France, British are interested in this case
- Civil enforcement of Exclusive Rights to the EEZ What will the PH do?
1. PH response if China installs a gas platform in the Reed Bank file a case
against China in Canada for recovery of damages
2. Recovery of damges frm China for severe harm to the marine environment I
the Spratlys quantify the damage and file another case in the UNCLOS
tribunal
3. Suspension of Chinas exploration permits for the seabed until China
complies with the ruling go to the national seabed authority and suspend
the permits of China since it is not complying with the package deal with
UNCLOS
4. Suspension of Chinas applicaton for an outer continental
- Islands capable of human habitation
- Extended Continental Shelf fromm Luzon we can claim an extended continental
shelf and if nobody protests, the UN commission will award it to us
o The only possible state that can object is China.
o If China will object, what will be the basis?
9 dash line? NO! Rejected already.
Overlap with EEZ? If they claim overlap with EEZ
So china is in a dilemma, how will they react?
BEST MOVE DAW SABI NI CARPIO
- There are many ways to win war is not an option. If we start a war, we will
lose.
- Military Enforcement of Exclusive Right to the EEZ
o Military treaty with the US
o Pacfiic area includes the south china sea hence we can patrol our EEZ
and if China attacks our EEZ, we can invoke our mutual defense treaty
 with the US thats why China does not want to touch our dilapidated
ship they dont want to give US a legal excuse to enter into the
dispute
- Declare the Spratlys an International Marine Peace Park
- 2 disputes in the South China sea
o Territorial Dispute
o Maritime dispute we already won this
- The win-win situation to win the territorial dispute is to declare the Spratlys as a
marine protected area
o All marine biologists are saying that it should be declared a marine
protected area
o BUT the diplomats do not want
o If we do not declare it a marine protected area, major fisheries will
collapse and this could lead to mass starvation
- Chinas 3-wharfares in SCS since the use of nuclear weapons is self-defeating.
These strategy was approved by the Chinese government
o Public opinion warfare
China will repeatedly assert a historical narrative so the
world will accept it as true even if the narrative has no
historical basis
o Legal Warfare
Assert legal basis for the historical claim to justify the claim
as an exception to the prevailing legal norms
Scholars are sent abroad to write thesis stating that the 9-
dash line is real
o Psychological Warfare
Display overwhelming military might, like the installation of
several air and naval bases
- As to first 1st warfare: China said that they are not participating in the arbitration,
but they submitted a POSITION PAPER
o The tribunal ruled that china never established historic right to the living
and non-living resources of the waters in the South China Sea
- As to 2nd warfare:
o Tribunal ruled that even if there were rights existing, these historic
rights were extinguished because of the existence of the UNCLOS
- As to 3rd wharfare
o Tribunal ruled that 9 dash lines have no legal basis. The PH has
exclusive sovereign rights to its EEZ.
- Our duty is to educate the world and the Chinese people that they have no
historic right because we dont have the nuclear power.
OPEN FORUM QUESTIONS:
1. Regarding the enforcement of the ruling. Joint patrols issue.
o Is patrolling our EEZ the best way?
In the EEZ, we have exclusive right to the fish. If Chinese
fishing vessel enter our waters, how do we stop them? We
cannot see them because thats 200 NM. Thats why the only
way is to patrol them on the seas so that we can catch them.
The only practical way to protect our EEZ from foreign
fishing vessels is to be there. The constitution also says that
the state must protect its marine wealth in the EEZ. So, the
president has the duty to send patrols to our EEZ because
thats the only way to protect our fish
Malampaya is beyond our territorial sea. If we dont sent our
patrol ships there to protect Malampaya, somebody will
destroy it. It is incumbent on our government to send patrols
to our EEZ.
2. Regarding the marine environmental damages. How may be china be held
accountable for its destructive activities in the West PH sea?
o In our statement of claim, we did not asked for damages because
when we filed the case, China has not yet dredged. But in the course
of the proceeding, China destroyed the evidence of their damage.
Since we did not file a monetary claim, we can do that now. We can file
another case for damages against China in the tribunal.
3. Chinas installations and artificial islands are unauthorized as ruled by the court.
What now are the action can the PH take against these artificial islands.
o We won but of course, China will not voluntarily leave. Hence, we have
to continuously protest since if we do not protest, then we are actually
modifying the ruling. So, we are saying that China can stay there but
they should make it a marine protected center and that they should
remove their military base. Because we have to realize that we dont
have the military capability and a lot of small countries win over big
countries, but we have to do it gradually.
o For example, in Nicaragua, they got economic aid from the US. So, we
have to be very creative here. We have to be firm.
4. With all the resources in the China, do we have the machinery to use these
resources?
o We always put it to a bidding. For example, Malampaya. Reed bank
was won by a foreign company. That was acquired by PDLT. Capital is
not a problem. If you have the oil, someone will drill it but you must
protect him. We can always bid it out. Thats the problem now. Will they
come in and put their capital to construct their platform when they will
know that China will come to the PH and get
5. What will happen if China agrees to make it a marine protected area?
o Even China will find the proposal attractive. The only problem is that
they spent so much in building those islands for military hence the
military wil object.
o If they dont want to declare it as such, then we will unilaterally declare
it as such.
6. As to the legal aspect, the PH clearly has the ruling and such can lead to the
code of conduct. But given that China does not want to agree to any of it and
given that our constitution is closed to foreign investment, how will we go about
this blaaahhh
o In Vietnam, foreigners cannot own land. They can only lease
lands/condo
o China foreigners also cannot own kand
o Vietnam and China, Singapore foreigners cannot own telecom
o In other words, those investments are not going to Vietnam or China more restrictive. But it is rather because of the facilities. China is
because their economic provisions are freer than us, theirs is actually actually the most restrictive in the world.