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THE

RULE OF LAW IN THE WEST PHILIPPINE SEA DISPUTE



Hon. Justice Antonio T. Carpio* 18 May 2013

As lifelong students of the law, we ask: in the international sphere, is

there a Rule of Law that governs sovereign nations to achieve a just and orderly world? If there is, what is the source of that Rule of Law? How is the Rule of Law enforced in the international sphere? We ask these questions because the Philippines today is invoking the

Rule of Law in resolving its maritime dispute with China in the West Philippine
Sea. In terms of military, economic or diplomatic clout, the Philippines is

obviously no match to China. International law, however, levels the playing field between China and the Philippines. International law ignores military, economic or diplomatic superiority in the resolution of disputes. International law is the greatest invention of man to level the playing field when large nations threaten small nations. The Philippines wisely chose an arbitral tribunal under the United

Nations Convention on the Law of the Sea, or UNCLOS, in resolving its maritime

dispute with China. Recently, a fiveman arbitral panel under Annex VII of UNCLOS has been formed to hear the application for arbitration by the
*
Commencement Speech delivered by Senior Associate Justice Antonio T. Carpio on 18 May 2013 before the Graduating Class of the Graduate School of Law of the Pamantasan ng Lungsod ng Maynila.

Philippines. There is, of course, in the international sphere a Rule of Law, which

ordains how sovereign nations must conduct themselves in a just and orderly manner to maintain peace and stability in the world. On maritime matters, the Rule of Law has evolved over the centuries since the time Hugo Grotius published his classic Mare Liberum in 1609. The latest codification of the Rule of Law on maritime matters is the

UNCLOS, which was adopted in 1982 and entered into force in 1994. UNCLOS is considered as the greatest achievement of mankind in codifying international law. UNCLOS is the fundamental source of the Rule of Law in the governance of the oceans and seas of our planet. In short, UNCLOS is the worlds Constitution for our oceans and seas, which comprise twothirds of the surface of our planet. There are two principal reasons why, as of today, 165 coastal and

landlocked states have ratified UNCLOS. First, UNCLOS entitles every coastal state in the world to a 200NM exclusive economic zone, plus an additional 150NM extended continental shelf where applicable. Second, UNCLOS gives all states, including landlocked states, sovereign economic rights to what is called the AREA the seabed outside the jurisdiction of coastal states. The AREA is the common heritage of mankind. By ratifying UNCLOS, member states bound themselves, and gave their

consent in advance, to follow a finely crafted dispute settlement mechanism specified in UNCLOS. The dispute settlement mechanism is compulsory on any dispute concerning the interpretation or application of UNCLOS, save in

certain limited cases where a member state may opt out or make reservations. In the case of maritime boundary delimitation where a country may opt

out of compulsory arbitration, compulsory conciliation is still required. There is no optout for any member state on compulsory conciliation. It is this detailed dispute settlement mechanism, to which member states have consented to be bound in advance even prior to any actual dispute, which ensures a just and orderly system in the oceans and seas of our planet. The Philippines and China are bound by this dispute settlement

mechanism since both have ratified UNCLOS. If a member state refuses to take part in a compulsory arbitration or compulsory conciliation that the member state is under obligation to participate under UNCLOS, the arbitration or conciliation will nevertheless proceed and an award or finding can still be made. In the words of UNCLOS, absence of a party or failure to submit to such proceedings shall not constitute a bar to the proceedings. For coastal developing countries that ratified UNCLOS, the heart and

soul of UNCLOS is the entitlement of every coastal state, as a matter of sovereign right under UNCLOS, to the 200NM exclusive economic zone, plus the additional 150NM extended continental shelf where applicable. These maritime entitlements are the most important new maritime rules of international law established by UNCLOS. Without these maritime entitlements, there might have been no UNCLOS. If today these maritime entitlements are taken away from coastal states, UNCLOS will surely die. Chinas 9dashed line claim to almost the entire South China Sea takes

away the maritime entitlements of the Philippines, Vietnam, Malaysia, Brunei

and even Indonesia to exclusive economic zones and extended continental shelves in the South China Sea, in gross violation of UNCLOS. In the case of the Philippines, Chinas 9dashed line claim takes away our exclusive economic zone and extended continental shelf in the West Philippine Sea beyond 30 to 50 NM from the baselines of the Philippines. That deprives the Philippines of 80% of its exclusive economic zone, and 100% of its extended continental shelf, in the West Philippine Sea. Chinas 9dashed line claim nullifies the operation of UNCLOS in almost

the entire South China Sea. Chinas 9dashed line claim converts the South China Sea into an internal Chinese lake, allowing China to unilaterally appropriate for itself what belongs to other sovereign coastal states, in defiance of UNCLOS. In the apt words of the DirectorGeneral of the Maritime Institute of Malaysia, Chinas 9dashed line claim is frivolous, unreasonable and illogical xxx by no stretch of the imagination Can the South China Sea be considered by any nation as its internal

waters or historic lake. Chinas 9dashed line claim simply cannot coexist with UNCLOS one

kills the other. To uphold Chinas 9dashed line claim is to wipe out centuries of progress in the law of the sea since the time of Grotius. To uphold Chinas 9 dashed line claim is to embolden other naval powers to claim wholesale other oceans and seas, taking away the exclusive economic zones and extended continental shelves of other coastal states. Even to simply allow Chinas 9 dashed line claim to continue vexing other coastal states in the South China Sea will seriously undermine and weaken the faith of all coastal states in UNCLOS.

Today, there is no graver danger to the future existence and survival of

UNCLOS than Chinas 9dashed line claim to almost the entire South China Sea. Scholars of the law of the sea all over the world consider Chinas 9dashed line claim as utterly without basis in international law. Chinas 9dashed line claim, if left to stand, will destroy and abrogate UNCLOS, the Constitution for the oceans and seas of our planet. The arbitration case of the Philippines against China is certainly not

about territorial sovereignty. We are not asking the arbitral tribunal to declare any island or any rock above water at high tide as part of Philippine territory. The arbitration case is also not about any maritime boundary delimitation. We are not asking the arbitral tribunal to delineate the metes and bounds of our maritime boundaries with China. What we are asking the arbitral tribunal is to rule whether Chinas 9

dashed line claim, or its domestic laws, can take away the Philippines exclusive economic zone and extended continental shelf in the West Philippine Sea as determined in accordance with UNCLOS. We are also asking the tribunal to rule on the legal status of the land

features in the West Philippine Sea whether the islands and rocks generate the full set of maritime zones territorial sea, contiguous zone, exclusive economic zone, and extended continental shelf. We are further asking the tribunal to rule whether China can occupy

and erect structures on fully submerged reefs like Mischief Reef, and on low tide elevations like Mckennan Reef, all within 200NM from Palawan and more

than 600NM from Chinas Hainan Island, the nearest Chinese land territory. We are, moreover, asking the tribunal to rule whether China, under its 9

dashed line claim or domestic laws, can unilaterally appropriate for itself maritime space in the South China Sea beyond the exclusive economic zone of any coastal state. This maritime space constitutes the highs seas, which under UNCLOS no state can subject to its sovereignty. UNCLOS declares that the high seas and their living resources are open to all states, whether coastal or landlocked. Every state that ratified UNCLOS bound itself to fulfill its treaty

obligations in good faith, and thus align its domestic laws with UNCLOS. In adopting its 2009 Baselines Law, the Philippines scrupulously followed UNCLOS. As ponente of the Supreme Court decision that unanimously affirmed the constitutionality of the Baselines Law, I stated that the strict observance by the Philippines of UNCLOS in enacting the Baselines Law manifests the Philippine States responsible observance of its pacta sunt servanda obligation under UNCLOS. Thus, the Philippines comes to the arbitral tribunal with clean hands.

On the other hand, Chinas 1998 Law on Exclusive Economic Zone and Continental Shelf claims historic rights to all geologic formations in the South China Sea, whether above water or under water, in gross violation of UNCLOS. That is why we are also asking the tribunal to direct China to bring its maritime laws into conformity with UNCLOS. If the islands and rocks in the West Philippine Sea generate only

territorial seas, then the Philippines has no overlapping exclusive economic

zone with any opposite coastal state, including China. Chinas Hainan Island is more than 750 NM from Palawan and more than 600 NM from Luzon. Chinas mainland coastline is also more than 500 NM from the northern tip of Luzon. There will be no maritime boundary to delineate between China and the Philippines. Chinas argument that the arbitral tribunal has no jurisdiction because the dispute is about maritime boundary delimitation will fail. Among all coastal states in the South China Sea, only China claims that

the Spratlys generate an exclusive economic zone and even a continental shelf. The largest island in the Spratlys has a land area of less than 50 hectares. In comparison, Palawans land area is 1.49 million hectares. It is doubtful if any of the islands in the Spratlys is capable of sustaining human habitation or economic life of its own. There have never been native settlers or inhabitants in the Spratlys. The present inhabitants in the Spratlys are mostly soldiers who cannot survive there without periodic supplies from their countries of origin. If, and that is a big if, the arbitral tribunal rules that an island in the

Spratlys is capable of sustaining human habitation or economic life of its own, thus generating an exclusive economic zone, then and only then will there be a maritime boundary delimitation dispute between the Philippines and the state that exercises sovereignty over such island. At that point the arbitral tribunal will proceed no further and its ruling will simply declare that the island generates an exclusive economic zone. The arbitral tribunal has no jurisdiction to proceed further because assuming China exercises sovereignty over such island, China has not consented to submit to arbitration any maritime boundary delimitation.

In such an eventuality, the Philippines will then bring China to

compulsory conciliation to delineate its maritime boundary with China in the Spratlys. A member state of UNCLOS, like China, cannot optout of compulsory conciliation. The compulsory conciliation commission will have to consider that

Palawans more than 600mile coastline facing the West Philippines Sea is overwhelmingly longer than the less than onemile opposing coastline of the largest island in the Spratlys. Based on prevailing law of the sea jurisprudence, such gargantuan disproportion in the opposing coastlines will only entitle the tiny island either to an exclusive economic zone seaward away from Palawan so that there will be no overlapping zones, or to a proportionately minuscule exclusive economic zone facing Palawan, if at all. In the island of Luzon, there can be no overlapping exclusive economic

zones between China and the Philippines. There is no Chineseclaimed island in the West Philippine Sea opposite Luzon that is within 400NM from Luzon. The baselines of the Paracel Islands are more than 400NM from the Luzon baselines. The rocks in Scarborough Shoal are not islands and cannot generate exclusive economic zones whatever state may have sovereignty over them. Thus, in the island of Luzon, the arbitral tribunal, aside from ruling that

the rocks of Scarborough Shoal generate only territorial seas whoever may have sovereignty over them, can also rule that the exclusive economic zone of the Philippines extends 200NM from the Luzon baselines, excluding the 12NM

territorial seas surrounding the rocks of Scarborough Shoal. As lifelong students of the law, the final question that we ask is, how can

a decision of the arbitral tribunal be enforced? If the decision is adverse to the Philippines, there is no problem of enforcement. Whether the Philippines accepts the decision or not, China has the naval might to enforce the decision on its own. If the decision is adverse to China, China has already signaled that it will

not be bound by such adverse decision. The Philippines does not have the naval might to compel China to comply with any decision of the arbitral tribunal. So what can the Philippines do? Under the United Nations Charter, the winning state in a decision

rendered by the International Court of Justice can ask the Security Council to enforce the decision of the ICJ. However, UNCLOS does not provide for any enforcement mechanism for decisions of the International Tribunal on the Law of the Sea (ITLOS) or the arbitral tribunals created under UNCLOS. Even for decisions of the ICJ, the Security Council can only act if none of the five permanent members of the Security Council will oppose the implementation of the ICJ decision, as each of the five permanent members wields veto power. China is a permanent member of the Security Council and will naturally veto any enforcement measure against itself. Decisions of ITLOS, and of UNCLOS arbitral tribunals, may declare that

there is an international law giving rise to a right, and a correlative duty, between states that are parties to a maritime dispute. There is, however, no way of enforcing that right, or exacting compliance with that duty, between the

parties to the dispute. This is where the Rule of Law in the international sphere falls into a black hole a gap in the Rule of Law where there is a Law but there is no Justice. The community of civilized nations must someday close this glaring gap between Law and Justice in the international sphere. The only remaining recourse for the Philippines is to appeal to world

opinion. As lifelong students of the law with an abiding faith in the Rule of Law, it is your mission from now on to help shape world opinion that a nation should follow the Rule of Law if it wants to be accepted as a member and leader of the community of civilized nations. If a nation refuses to comply with the Rule of Law, then it becomes a rogue nation, an outcast in the community of civilized nations where adherence to the Rule of Law is the norm. A nation that aspires to be a world power but refuses to follow the Rule of Law is a danger to peace and stability in our world. These are the basic principles that you, the Class of 2012 of the

Graduate School of Law, as lifelong students of the law, must impart to all the peoples of the world. You will help shape world opinion with these principles. The world will welcome these principles not only because they preserve the sovereign right of all coastal states to their exclusive economic zones and extended continental shelves, but also because these principles guarantee that the highs seas and their living resources are open to all states, whether coastal or landlocked. If world opinion adopts strongly these principles, then world opinion may even one day force the community of nations to close the gap between Law and Justice arising from decisions of ITLOS and arbitral tribunals under UNCLOS.

World opinion is the defining force in enforcing arbitral decisions that

fall into the legal black hole due to the absence of effective international enforcement mechanisms. World opinion is the defining force that bestows respect and prestige to a nation aspiring to be a world power and global leader. A nation aspiring to be a global leader can earn the respect and admiration of the world only through adherence to the Rule of Law. With a favorable decision from the arbitral tribunal, and world opinion

also in our favor, time will be on the side of the Philippines. In matters of sovereign rights among nations, our time horizon should span several decades or even longer. In the battle to defend a nations sovereign rights from encroachment by other states, there is no such thing as instant success. Even nations with the Rule of Law and world opinion on their side must persevere for a very long time to succeed. To the Class of 2012, history has set out your mission for you. As life

long students of the law, your mission is to help protect, through advocacy of the Rule of Law, our nations maritime entitlements in the West Philippine Sea from encroachment by other countries. Our nation counts on you.