Mike E. Dela Serna Introduction to International Law
BA Political Science III MW (12:00 pm-1:30 pm)
WHAT IS YOUR STAND ABOUT THE SOUTH CHINA SEA DISPUTE?
The South China Sea dispute has sparked debates among international law scholars and it has caused conflict among several claimant states namely China, Taiwan, the Philippines, Brunei and Vietnam. These states assert sovereign rights and jurisdiction over these disputed islands located in South China Sea. In connection to this, this paper aims to analyze this dispute on the basis of international law particularly the United Nations’ Convention on the Law of the Sea (UNCLOS). This paper seeks to defend the Philippines legal standing and it intends to debunk China’s “historical claims” particularly its fictitious nine-dashed line.
The Law of the Sea treaty took effect on 1994. It was ratified by 157 member states of the United Nations and it includes the claimant states aforementioned. UNCLOS governs the use of world’s oceans, seas, maritime resources and the settlement of maritime disputes. UNCLOS existed to codify the existing customary international law which in turn created marine entitlements to coastal and landlocked states. The use of these following maritime zones or regimes is governed by UNCLOS respectively:
(1) The internal waters or archipelagic waters, all waters or landward side of the baseline that are found inside the land or territory and adjacent to the territorial sea (Part II, Section 2, Article 8);
(2) Baselines, the median of the low tide and high tide or the low-water line along the coast (Part II, Section 2, Article 5);
(3) Territorial Waters, an area of 12 nautical miles measured from the baselines (Part II, Section 2, Article 3);
(4) Exclusive Economic Zone (EEZ), an area of 200 nautical miles measured from the baselines and is adjacent to the territorial sea(Part V, Section 55);
(5) Continental Shelf, an additional area of 150 nautical miles measured from the EEZ (Part VI, Article 76); and
(6) The High Seas, the area which belongs to mankind, the maritime zone beyond the continental shelf and they belong to all coastal and land-locked states (Part VII, Section I).
It is noteworthy that mostly of the maritime disputes that are being encountered by states are the problems with these three overlapping maritime zones__ territorial sea, Exclusive Economic Zones and Continental Shelves. In the case at bar, claimant countries are engaged over this dilemma of overlapping EEZs and Continental Shelves. Nonetheless, UNCLOS does not govern ownership issues or sovereign claims over land territories which are collectively known as territorial disputes.
CHINA’S NINE-DASHED LINES
China has been asserting that its claim over South China Sea conforms to international law. The nine-dashed line is a downright violation of general principle and the rule of international law. China’s nine-dashed line claim has elicited mix responses from both claimant and non-claimant states in the South China Sea dispute. Apparently, the nine-dashed line claim completely ignores or does not fall under the maritime regimes as stipulated in UNCLOS particularly the Exclusive Economic Zones and Continental Shelf (Article 56(1) (a)). UNCLOS clearly states that EEZ or CS must be drawn from the baselines of a coastal state. In the case of China’s nine-dashed lines, the waters included do not form part of China’s EEZ and ECS for the reason that they exceeded the extent of China’s EEZ (200NM)and CS(additional 150 NM) and they were not measured from its baselines. Ergo, the nine-dashed line of China does not belong to any of these maritime zones acknowledged by international law or UNCLOS such internal waters, territorial sea, EEZ and CS which can be claimed by a coastal state.
This action of China like reclaiming the islands and their conduct military or paramilitary activities in SCS infringe the rights of other states in their exercise of freedom of navigation, freedom of overflight and freedom of scientific research (these are some of freedoms enumerated by Part VII, Article 87, UNCLOS).
China continues in invoking “abundant historical facts” as basis for its nine-dashed line claim though historical facts are irrelevant __ancient discovery, exploration or conquests__ under the UNCLOS in modern-day maritime claims. It would be more apt to analyze the historical facts asserted by China as it is a matter of academic exercise and as a means to counter their historical claims. The pivotal question is how a “historical right” warrants an “indisputable sovereignty” by China over the entire South China Sea.
Historical facts if put under impartial scrutiny is susceptible to alterations by the Chinese authorities to advance their claims. These islands within the nine-dotted-line are argued by the Chinese Government to be part of their territory since time immemorial. In their contention, they believed that during the Yuan Dynasty there was an astronomer-engineer-mathematician named Guo Shoujing who was tasked by the emperor Kublai Khan to head the construction of observatories in different places in China and to update the Sung Dynasty calendar system by conducting a survey to the Four Seas. He allegedly discovered this Huangyan Island and He decided to include this as one of the suitable places for astronomical observation in South China Sea. This island that they called Huangyan Island is now what they believed to be the Scarborough Shoal basing from their Chinese map (Chinese Embassy Website). They construed that this visit of Shoujing to SCS some time in 1279 served as a strong historical link in bolstering their claim of Scarborough Shoal against another historical claim by Vietnam (Beijing Review; 1932 Note Verbale to France.).
These tales told by Chinese Scholars are seemingly fabricated. Justice Antonio Carpio sees this argument by China to be implausible and ludicrous. He said that the famous Chinese astronomer is less likely to marvel at a “ few barren rocks that barely protruded above water at high tide.” He also added that there’s a lesser possibility that there is a historical account depicting that there was an installation of observatory Nanhai Islands. Also building those observatories require a constant visit since they are far from mainland China and they cannot withstand and operate in the tiny rocks of Scarborough Shoal.
China with its nine-dashed line is now espousing the idea of Mare Clausum by John Selden which means “the closed sea,” and it negates Hugo Grotius’ Mare Liberum which means “the free sea.” The notion of Mare Clausum had long been abandoned by the international community since it posits that individual states can appropriate and own the oceans and seas which are blatantly contrary to Grotius’ ideas. John Selden, a philosopher and English jurist in 1635 reckoned this idea in defense to England’s position as colonizer. This perception was concurred by Spain and Portugal that time. China is a party to UNCLOS; however, it insists its position in the South China it invokes the John Selden’s idea of Mare Clausum.
Article 89 of the Convention states that, “No State may validly purport to subject any part of the high seas to its sovereignty.” That provision supplements the idea of reserving the high seas for peaceful purposes (Part VII, Article 88). Hence, China cannot claim own or have control over SCS entirely as it is contrary to the principles international law. Hugo Grotius, known as the founder of international law wrote in the early 17th century that the planet’s oceans and seas belonged to all mankind and no nation could claim ownership of the oceans and seas. His revolutionary idea subsequently laid the foundations of the law of the sea in international law.
In addition, China perceived the cogency of their ancient Chinese maps as “historical facts” to claim the entire South China Sea. A map per se is not tantamount to a territorial title or a legal document in order to establish territorial rights under international law. Pursuant to the Frontier Dispute, the International Court of Justice explained the evidentiary value of maps in this way:
Maps merely constitute information which varies in accuracy from case to case; of themselves, and by virtue solely of their existence, they cannot constitute a territorial title, that is, a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights.
Albeit the ancestors of the Filipinos traversed the Pacific Ocean in their balangays or sailboats about three thousand years ago, the Philippines cannot directly sketch its own map or draw a 9-dashed line in the Pacific Ocean and claim as its indisputable territory the waters that are enclosed to it. However, 1947 the otherwise was done by China when it drew its nine-dashed line map in the South China Sea, under the pretense of “historical facts”.
Hence, a state’s own unilateral acts cannot expand its rights under international law. A prominent British journalist like Bill Hayton opined that China may have committed a translation error. He added that the existing British charts were copied as well as the names of the islands were changed to make them sound Chinese by the committee (Inspection Committee for Land and Water Maps). This clearly shows that China is desperate enough to own the entire South China Sea but international law does not necessarily recognized these maps as evidence of title against their contending states.
SOLUTION TO THIS DISPUTE
It is expected for China to behave in the hegemonic way because it takes advantage of the fact that the other claimant states are considerably weaker in terms of naval and military capacity specially the Philippines who is the weakest in the bunch. It is more practical for a country like the Philippines to file an arbitration case before the International Tribunal on the law of the Sea (ITLOS) to settle this dispute peacefully. However, there is a huge dilemma on the implementation of the ruling of the court since China did not consent or did not cooperate in the arbitration process. We cannot envisage the consequences of the actions conferred by the Philippines. If China will not take heed of the tribunal’s decision, who shall then interfere and help the Philippines and other claimant states in their pursuit of sovereign rights over these maritime zones under international law?
I see that the Association of Southeast Asian Nations (ASEAN) has no firm stand on this issue since China is a strategic economic partner in the region aside from EU, Japan and the United States. China come to terms in the 2002 ASEAN-China Declaration of Conduct that the maritime disputes in the South China Sea shall be resolved “in accordance with universally recognized principles of international law which includes the 1982 UN Convention on the Law of the Sea.” Actually, this issue is very polarizing for its members.
In the midst of the arbitration case, it can be suggested that the claimant states should do bilateral or multilateral agreements which should be just and beneficial to both parties concerned.
If the talks and constant negotiations and all other efforts have been exhausted yet a resolution is still to no avail, I think it is high time for the Philippines to unilaterally lobby for its right in the United Nations to exert pressure on China or we should do any possible or effective means to uplift our pathetic image as a bullied smaller nation. The Philippines should forge more cooperation in terms of mutual defense and in augmenting our armament and military assets. The Philippines has to step up its game and allocate a bigger budget in the national defense. This is also an opportune time because the elections is fast approaching and the electorate should be wise on whom should they cast their votes and those people running for office should be genuine safeguards of our national sovereignty.
In the grassroots level, I think that the issue on West Philippine Sea should be included in the school curriculum in order for the common people to have at least a good grasp of what is really happening in the West Philippine Sea and this also to urge a more participative democracy towards protecting our national sovereignty and to inculcate to the ordinary Filipino the nationalistic fervor. I am certain that China is not in favor of Solomonic solution in resolving this issue but I am hopeful that justice is served for the Philippines.
References:
Embassy of the People’s Republic of China in the Republic of the Philippines, China’s
Sovereignty over the Huangyan Island is Indisputable, Chinese Embassy in ManilaWebsite, May 6, 2012, available at http://ph.china-embassy.org/eng/zt/nhwt/t931870.htm.
Bill Hayton, How a Non-existent Island Became China’s Southernmost Territory, South China Morning Post, Feb. 9, 2013, available at http://www.scmp.com/comment/insight-opinion/
article/1146151/how-non-existent-island-became-chinas-southernmost-territory?page=all.
Antonio T. Carpio, Historical Facts, Historical Lies, and Historical Rights in the West
Philippine Sea, 88 PHIL. L.J. 389, (page cited) (2014). This paper was originally delivered as a lecture before law students and scholars on June 6, 2014, at the Henry Sy, Sr. Hall, De la Salle University, Manila.
United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter “UNCLOS”].
HUGO GROTIUS, THE FREEDOM OF THE SEAS 6-8 (Ralph van Deman Magoffin trans.,1916) (1609).