From InterAksyon (Mar 6):
EXPLAINER | Protecting the nation's marine wealth in the West Philippine Sea
Panatag (Scarborough) Shoal, off Zambales in Luzon: under de facto occupation by Chinese boats since the April 2012 standoff between Philippine and Chinese forces.
Speech delivered by Supreme Court Senior Associate
Justice Antonio T. Carpio before the Philippine Women’s Judges Association, 6
March 2014
This morning, with your kind indulgence, allow me to speak on a matter that I
hope would be the advocacy of every Filipino - the protection of the marine
wealth of the Philippines in the West Philippine Sea.
Our 1987 Constitution mandates: “The State shall protect the nation’s marine
wealth in its xxx exclusive economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.” This is the mandate of the
Constitution that we have all solemnly sworn to uphold.
To fulfill the State’s obligation to protect the nation’s marine wealth in its
exclusive economic zone, the Philippines has filed an arbitration case against
China in accordance with the 1982 United Nations Convention on the Law of the
Sea (UNCLOS). At stake in the arbitration before an UNCLOS Annex VII
tribunal is whether the
Philippines
will keep or lose 80% of its exclusive economic zone and 100% of its extended
continental shelf in the
West
Philippines Sea.
UNCLOS, ratified by 165 states comprising 85% of the entire membership of the
United Nations, is the primary international law governing the use of the
oceans and seas of our planet. Specifically, UNCLOS governs the use of the
following maritime zones: (a) internal waters or archipelagic waters, the
landward waters adjacent to the territorial sea; (b) territorial sea, an area
of 12 NM from the baselines along the coast; (c) exclusive economic zone (EEZ),
an area of 200 NM from the baselines; (d) extended continental shelf (ECS), an
additional area of 150 NM from the outer limits of the EEZ; and (e) the AREA,
which is the common heritage of mankind, the maritime zone beyond the
ECS. The AREA belongs to all states, whether coastal or land-locked.
UNCLOS governs maritime disputes on overlapping maritime zones like
overlapping territorial seas, EEZs and ECSs.
UNCLOS does not govern territorial disputes, which are sovereignty or ownership
issues over land territory like islands or rocks above water at high
tide. Rocks that are below water, or submerged, at high tide are not
considered land and thus disputes over such rocks are governed by
UNCLOS.
UNCLOS provides for a compulsory dispute settlement mechanism over maritime
disputes among its member states,including disputes involving the
interpretation or application of the provisions of UNCLOS. A state may
opt out of certain specified disputes, one of which is maritime boundary
delimitation arising from overlapping territorial seas, EEZs or ECSs. A
state cannot opt out of any dispute except those expressly specified under
UNCLOS.
China, the
Philippines and all the other disputant states
in the
South China Sea are parties to UNCLOS,
and are thus bound by the UNCLOS compulsory dispute settlement mechanism.
Maritime disputes are governed primarily by UNCLOS, while territorial disputes
are governed by the general rules and principles of international law.
Maritime disputes are subject to compulsory arbitration because under UNCLOS a
party state has given its advance consent to compulsory arbitration, unless a
state has opted out ofcompulsory arbitration involving certain specified
disputes. In contrast, territorial disputes can be subject to arbitration
only with the consent of each disputant state to every arbitration, unless such
consent has been given in advance in a treaty. There is no such treaty
between the
Philippines and
China involving
compulsory arbitration of territorial disputes.
The
Philippines’ arbitration
case against
China
is solely a maritime dispute and does not involve any territorial
dispute. The
Philippines
is asking the tribunal if
China’s
9-dashed lines can negate the
Philippines’
EEZ as guaranteed under UNCLOS. The
Philippines is also asking the
tribunal if certain rocks above water at high tide, like Scarborough Shoal,
generate a 200 NM EEZ or only a 12 NM territorial sea. The
Philippines is further asking the tribunal if
China can appropriate low-tide elevations
(LTEs), like Mischief Reef and Subi Reef, within the
Philippines’ EEZ. These
disputes involve the interpretation or application of the provisions of
UNCLOS.
The
Philippines is not
asking the tribunal to delimit by nautical measurements overlapping EEZs
between
China and the
Philippines.
The
Philippines is also not
asking the tribunal what country has sovereignty over an island, or rock above
water at high tide, in the
West Philippine Sea.
Under UNCLOS, every coastal state is entitled to a 200 NM EEZ, subject to
boundary delimitation in case of overlapping EEZs with other coastal
states. The EEZ is the area extending to 200 NM measured from the
baselines of a coastal state. Under UNCLOS, EEZs must be drawn from baselines
of the coast of a continental land or island capable of human habitation of its
own. This basic requirement stems from the international law principle that the
“land dominates the sea” – or to put it another way, areas in the seas and
oceans can be claimed and measured only from land.
A coastal state has full sovereignty over its 12 NM territorial sea.
Beyond the territorial sea, the coastal state has only specific “sovereign
rights” up to 200 NM from its baselines. These “sovereign rights” are to
the exclusion of all other states. The term “sovereign rights” refers to
specific rights that do not amount to full “sovereignty.”
A coastal state’s “sovereign rights” to its EEZ beyond the territorial sea
refer principally to the exclusive right to exploit the living and non-living
resources in the area,without other sovereign rights like the right to deny
freedom of navigation and over-flight, which a coastal state can deny in its
territorial sea.
Are there overlapping EEZs?
China
claims almost 90% of the South China Sea under its so-called 9-dashed line map,
which overlaps 80% of the Philippines’
EEZ in the West Philippine Sea. If China’s claim is upheld, the Philippines will lose 80% of its EEZ in the West Philippine Sea, including the Reed Bank and even
Malampaya. The Philippines
will also lose all its ECS in the West Philippine Sea.
The maritime dispute between the Philippines
and China boils down to
whether there are overlapping EEZs between the Philippines
and China in the West Philippine Sea. Are the waters enclosed by China’s 9-dashed lines part of the EEZ of China
such that China’s EEZ
overlaps with the EEZ of the Philippines?
China also claims that the
islands in the Spratlys like Itu Aba generate their own EEZs which overlap with
the Philippines’ EEZ in Palawan.
China argues, through its
scholars and officials, that the arbitral tribunal has no jurisdiction over the
Philippines’ claim for two
reasons: First, the dispute involves maritime boundary delimitation arising
from overlapping EEZs of the Philippines
and China, a dispute that China has opted
out of compulsory arbitration. Second, China’s 9-dashed line claim is a
historical right that predates UNCLOS and cannot be negated by
UNCLOS. On these grounds, China has refused to participate in
the arbitral proceedings.
The Philippines’
response is that the waters enclosed within China’s 9-dashed lines do not
constitute an EEZ because the 9-dashed lines are not drawn from baselines along
the coast of continental land or habitable islands. Under UNCLOS,
EEZs can only be drawn from baselines along the coast of continental land or an
island capable of human habitation or economic life of its own. China’s
9-dashed lines do not comply with the basic requirement of UNCLOS for drawing
EEZs.
China has no EEZ that
overlaps with the Philippines’
EEZ in the Scarborough area. China’s baselines are either along the coast of
Hainan Island, which is 580 NM from Luzon, or along the coast of mainland China, which is 485 NM miles from the Zambales
coastline in Luzon facing Scarborough Shoal.
Even if you grant the Chinese-held Paracels an EEZ, the Paracels are about 480
NM from Luzon. To have overlapping
EEZs, the distance between the opposite baselines must be less than 400 NM. In
the Scarborough area, there is no baseline in Luzon
where its distance from the nearest Chinese baseline is less than 400 NM.
Low-Tide-Elevations or LTEs are rocks above water atlow tide but below water,
or submerged, at high tide. LTEs are not land but part of the submerged
continental shelf. Under UNCLOS, LTEs beyond the 12 NM territorial sea
are not capable of appropriation by any state. As part of the submerged
continental shelf, LTEs beyond the territorial sea but within the EEZ of a
coastal state are subject to the sovereign rights of such coastal state.
Thus, LTEs in the Spratlys within the 200 NM EEZ of the Philippines, like Mischief Reef and Subi Reef,
are subject to the sovereign rights of the Philippines. Under UNCLOS,
only the Philippines
can construct structures on LTEs within its EEZ. Geographic and
hydrographic surveys, satellite imageries, and international nautical charts,
including China’s own nautical charts, all show that several geologicfeatures
in the Spratlys occupied by China, including Mischief Reef and Subi Reef, are
LTEs within the Philippines’ 200 NM EEZ.
Scarborough Shoal, 124 NM from Zambales in Luzon, lies within the Philippines’
200 NM EEZ. Scarborough Shoal has 3 to 4 rocks that protrude not more
than 2 meters above water at high tide. The rocks have no vegetation and
obviously cannot sustain human habitation or economic life of their own. As a
non-habitable “island,” Scarborough Shoal generates only a 12 NM territorial
sea. Contrary to China’s
claim, Scarborough Shoal cannot, for obvious reasons, generate an
EZZ. The Philippine position is that whether China or the
Philippines, which are the only two claimant states, has sovereignty over
Scarborough Shoal, the rocks can only generate a 12 NM territorial
sea. Thus, Scarborough Shoal has no overlapping EEZ with the EEZ of
Luzon.
In the Spratlys, with the exception of China,
all thdisputant states, namely the Philippines,
Vietnam, and Malaysia, agree
that none of the islands in the Spratlys generates an EEZ. The largest island,
Itu Aba, has a land area of only 37.7 hectares and a coastline of 1.0 KM facing
Palawan, the largest Philippine province. Palawan has a land area of 1,489,655 hectares and a
coastline of 650 KM facing Itu Aba. In short, Palawan’s
coastline is 650 times longer, and its land area 39,513 times larger, than
those of Itu Aba. The distance between Itu Aba and Palawan
is 250 NM. Itu Aba is occupied by Taiwan,
which the Philippines
recognizes as part of China.
Under UNCLOS, to generate an EEZ an island must be capable of human
habitation or economic life of its own. The soldiers stationed in Itu Aba
cannot survive without periodic supplies from Taiwan. In the law of the sea
jurisprudence, there are many islands bigger than Itu Aba that have been denied
EEZs opposite a mainland or a much larger island. In all probability, an
international tribunal will deny Itu Aba an EEZ.
Even assuming for the sake of argument that Itu Aba generates an EEZ, the
UNCLOS rule of ensuring an “equitable solution” in maritime boundary
delimitation prohibits any substantial disproportion in the allocation of EEZs
if the length of the opposite coastlines are substantially unequal. The
opposite coastline of Itu Aba is 1 KM while that of Palawan
is 650 KM.
Under law of the sea jurisprudence, the rule of“equitable solution” in
opposite coastlines requires a reasonable degree of proportionality, or at
least absence of excessive disproportionality, in the lengths of the coastlines
and the areas of the adjacent EEZs. The best-case scenario for Itu Aba is a
reduced EEZ of 50 NM facing Palawan, while Palawan
will have a full EEZ of 200 NM facing Itu Aba. Itu Aba may, however, be
given a longer or even a full EEZ facing the South China Sea away from Palawan.
Of course, if an arbitral tribunal rules that Itu Aba is capable of human
habitation or economic life of its own and thus generates an EEZ, the tribunal
will have no jurisdiction to proceed further without the consent of China.
The arbitral tribunal cannot rule on the extent of such EEZ for that will
involve a maritime boundary delimitation on overlapping EEZs – a dispute that China has
excepted from compulsory arbitration.
In such eventuality, where an arbitral tribunal rules that Itu Aba
generates an EEZ, the Philippines
will then file a second case against China,
this time for compulsory conciliation over the maritime boundary delimitation
between China’s EEZ in Itu
Aba and the Philippines’
EEZ inPalawan. Under UNCLOS, states that opt out of compulsory
arbitration in maritime delimitation of sea boundaries cannot opt out of
compulsory conciliation. While the report of the conciliation
commission is non-binding, it will have persuasive authority as the equitable
boundary delimitation under international law.
Interestingly, in China’s
dispute with Japan over the Japanese-held Senkaku
Islands in the East China Sea, China claims that the largest Senkaku island -
Uotsurishima - with an area of 430 hectares, does not generate an EEZ but only
a12 NM territorial sea because, according to China,Uotsurishima cannot sustain
human habitation of its own. In sharp contrast, China claims that
Itu Aba, which has an area of only 37.7 hectares, and Scarborough Shoal, whose
largest rock has an area of not more than 3 square meters, each generates a 200
NM EEZ, implying that both Itu Aba and Scarborough can sustain human habitation
of their own. Uotsurishima is 11.4 times larger than Itu Aba and 860,000 times
larger than the largest Scarborough
rock.
Not the only inconsistency of China
This is not the only glaring inconsistency of China. China claims that the
largest Japanese-held rock in Okinorotishima in the Philippine Sea, protruding
about two feet above water at high tide with an area of less than 4square
meters, does not generate a 200 NM but only a 12 NM territorial sea because
obviously Okinorotishima cannot sustain human habitation of its own. Yet China claims
thatScarborough, which just as obviously cannot sustain human habitation of its
own, generates a 200 NM EEZ. There is neither reason nor rhyme in China’s
position.
China’s claim to a
“historical right” to the waters enclosed within the 9-dashed lines in the South China Sea is utterly without basis under
international law. This is the almost universal opinion of non-Chinese scholars
on the law of the sea.
First, UNCLOS extinguished all historical rights of other states within
the 200 NM EEZ of the adjacent coastalstate. 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.
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 othercoastal
states.
​Second, under UNCLOS the term
“historic bays” refers to internal waters, and the term “historic titles”
refers to territorial seas. A state can claim “historical rights” over
waters only as part of its internal waters or territorial sea. Thus,
under UNCLOS, a state cannot claim “historical rights” over waters beyond its
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.
Likewise, since the time airplanes flew across the seas, aircraft of all
nations have exercised freedom of over-flight over the South China Sea.
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. Indeed, China has stated that there is freedom
of navigation and freedom of over-flight in the South China Sea, an admission
that the waters enclosed within the 9-dashed lines do not constitute China’s
internal waters or territorial sea.
The waters enclosed within the 9-dashed lines cannot also form part of China’s
EEZ or ECS because they are not drawn from China’s baselines and are beyond the
limits of China’s EEZ and ECS as drawn from China’s baselines. In short,
China’s claim to the waters enclosed by the 9-dashed line claim does not fall
under any of the maritime zones - internal waters, territorial sea, EEZ and ECS
- recognized by international law or UNCLOS that can be claimed by a coastal
state. Only China seems to know what kind of maritime regime the
9-dashed line waters fall under, but China is not telling the world except that
it is claiming “indisputable sovereignty” over such waters by “historical
right.”
​Third, under the general
principles and rules of international law, a claim of “historical rights” to
internal waters or territorial sea must satisfy four conditions.
One, the state must formally announce to the international community such claim
to internal waters or territorial sea, clearly specifying the extent and scope
of such claim. Two, the state must exercise effective authority, that is,
sovereignty, over the waters it claims as its own internal waters or territorial
sea. Three, such exercise of effective authority must be continuous over
a substantial period of time. Four, other states must recognize, tolerate
or acquiesce to the exercise of such authority.
China doesn't meet 4 conditions
China fails to comply with any of these four
conditions. China officially notified the world of its 9-dashed line
claimonly in 2009 when China submitted the 9-dashed line map to the United
Nations Secretary General. Not a single country in the world recognizes,
respects, tolerates or acquiesces toChina’s 9-dashed line claim. China
has never effectively enforced its 9-dashed line claim from the time of China’s
domestic release of its 9-dashed line map in 1947 up to 1994 when UNCLOS took
effect, and even after 1994 up to the present.
Thus, under the general principles and rules of international law, China cannot
claim any “historical right” that pre-dated UNCLOS. Even assuming, for
the sake of argument, that China has such “historical right,” the entry into
force of UNCLOS in 1994 extinguished such right. Under UNCLOS, a state
cannot claim any “historical right” to the EEZ or ECS of another
state.
China, with its blatantly weak position under international law, has tried to
shore up its position with so-called “historical facts”. For one, China claims
that Scarborough Shoal, or Huangyan Island to the Chinese, is theNanhai island
that the 13th century Chinese astronomer-engineer-mathematician Guo Shoujing
allegedly visited in 1279, having been ordered by Kublai Khan, the first emperor
of the Yuan Dynasty, to conduct a survey of the Four Seas to update the Sung
Dynasty calendar system. Thus, the Chinese Embassy website in Manila
claims:
Huangyan Island was first discovered and drew (sic) into China's map in
China's Yuan Dynasty (1271-1368 AD). In 1279, Chinese astronomer Guo Shoujing
performed surveying of the seas around China for Kublai Khan, and Huangyan
Island was chosen as the point in the South China Sea. (Emphasis supplied)
The alleged visit of Gou Shoujing to Scarborough Shoal in 1279 is the
only historical link that China claims to Scarborough Shoal.
However, in a document entitled China’s Sovereignty Over Xisha and
Zhongsa Islands Is Indisputable issued on January 30, 1980, China’s Ministry of
Foreign Affairsofficially 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 documentto bolster its claim to the Paracels to counter
Vietnam’sstrong historical claims to the same islands. This
Chineseofficial document, published in Beijing Review, Issue No. 7 dated
February 18, 1980, states:
Early in the Yuan Dynasty, an astronomical observation was carried out at
27 places throughout the country. In the 16th year of the reign of
Zhiyuan (1279) Kublai Khan or Emperor Shi Zu, (sic) personally assigned Guo
Shoujing, the famous astronomer and Deputy Director of the Astronomical Bureau,
to do the observation in the South China Sea. According to the official History
of the Yuan Dynasty, Nanhai, Gou’s observation point, was “to the south of
Zhuya” and “the result of the survey showed that the latitude of Nanhai is
15°N.” 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. (Emphasis supplied)
Estopped on Scarborough
​China is now
estopped from claiming that Scarborough Shoal is Nanhai island. China has
officially declared that Nanhai island is in the Paracels, and thus China can
no longer claim that Scarborough Shoal is the Nanhai island that Gou Shoujing
visited in 1279. Besides, it is quite ridiculous to claim that the famous
Chinese astronomer-engineer-mathematician would visit and write for posterity
about a fewbarren rocks that barely protruded above water at high tide.
One could not imagine 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 Chinesehistorical 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
onScarborough Shoal at that time.
Based on the extant Gaocheng Observatory built in 1276 by Guo Shoujing in Henan
Province, Guo Shoujing’s 27 observatories were massive 12.6 meters high stone
and brick structures. The purpose of the observatories was to accurately
determine the duration of the calendar year. To operate such an observatory,
one had to visit the observatory every day of the year to take
measurements. There wassimply no way at that time that such an
observatory could have been built and operated on the tiny rocks of Scarborough
Shoal.
In short, it is both physically and legally impossible for Scarborough to be
Nanhai island - physically because no observatory could possibly have been
installed in 1279 on the tiny Scarborough rocks, and legally because China has
already officially declared that Nanhai is in the Paracels,more than 380 NM
from Scarborough.
​​Another
preposterous Chinese claim is that China’ssouthernmost territory is James
Shoal, 50 NM from the coast of Bintulu, Sarawak, Malaysia. James Shoal is
a fully submerged reef, 22 meters under water, entirely within Malaysia’s 200
NM EEZ and more than 950 NM from China. How did the fully submerged James
Shoal become China’s southernmost territory? Let me quote a fascinating
article on James Shoal published on February 9, 2013 in the South China Morning
Post, written by Bill Hayton, a well-known British journalist:
How did the Chinese state come to regard this obscure feature, so far from
home, as its southernmost point? I've been researching the question for some
time while writing a book on the South China Sea. The most likely answer seems
to be that it was probably the result of a translation error.
In the 1930s, China was engulfed in waves of nationalist anxiety. The predation
of the Western powers and imperial Japan, and the inability of the Republic of
China to do anything meaningful to stop them, caused anger both in the streets
and the corridors of power. In 1933, the republic created the "Inspection
Committee for Land and Water Maps" to formally list, describe and map
every part of Chinese territory. It was an attempt to assert sovereignty over
the republic's vast territory.
The major problem facing the committee, at least in the South China Sea, was
that it had no means of actually surveying any of the features it wanted to
claim. Instead, the committee simply copied the existing British charts and
changed the names of the islands to make them sound Chinese. We know they did
this because the committee's map included about 20 mistakes that appeared on
the British map - features that in later, better surveys were found not to
actually exist.
The committee gave some of the Spratly islands Chinese names. North Danger Reef
became Beixian (the Chinese translation of "north danger"), Antelope
Reef became Lingyang (the Chinese word for antelope). Other names were just
transliterated so, for example, Spratly Island became Sipulateli and James
Shoal became Zengmu. And this seems to be where the mistakes crept in.
But how to translate "shoal"? It's a nautical word meaning an area of
shallow sea where waves "shoal" up. Sailors would see a strange area
of choppy water in the middle of the ocean and know the area was shallow and
therefore dangerous. James Shoal is one of many similar features in the
Spratlys.
But the committee didn't seem to understand this obscure English term because
they translated "shoal" as "tan" - the Chinese word for
beach or sandbank - a feature which is usually above water. The committee,
never having visited the area, seems to have declared James Shoal/Zengmu Tan to
be a piece of land and therefore a piece of China.
Apparently, Chinese leaders and cartographers claimed James Shoal as
China’s southernmost territory even without seeing James Shoal.
Certainly, no Chinese could have gone ashore to “visit” James Shoal. James
Shoal is the only national border in the world that is fully submerged
andbeyond the territorial sea of the claimant state.
Today, when Chinese naval vessels visit James Shoal, they would occasionally
drop to the bottom of James Shoal cement and steel markers to designate China’s
southernmostterritory. Of course, this is blatantly contrary to
UNCLOS,which prohibits any state from appropriating submerged features beyond
its territorial sea. Not even Malaysia, whose coastline is just 50
NW away, can claim James Shoal as itssovereign territory.
Bill Hayton’s account of how James Shoal became China’s southernmost territory
gives us an idea how dubious are China’s “historical facts” under its so-called
9-dashed line claim. China’s official proclamation in 1980 that Nanhai
island is in the Paracels also exposes China’s false claim to any historical
link to Scarborough Shoal.
Indeed, all Chinese official maps during the Yuan, Ming and Qing Dynasties
placed the southernmost border of China at Hainan Island. The famous 17th
century Qing Dynasty Kangxi maps, prepared by the Jesuit missionaries who
became advisers to Emperor Kangxi, placed HainanIsland as the southernmost
border of China. None of the Chinese dynasty maps ever mentioned the
Paracels, the Spratlys, Scarborough Shoal, the 9-dashed lines or the U-shaped
lines.
Guangdong province of China first claimed the Paracels in 1909. China itself
claimed the Paracels only in 1932 and the Spratlys only in 1946 after World War
II. In the 1951San Francisco Peace Conference that produced the
Peace Treaty of San Francisco, the victorious allies rejected by a vote of 48
states to 3 states (only the Soviet Union, Poland and Czechoslovakia dissented)
to turn over possession of the Paracels and Spratlys to China as demanded by
the Soviet Union on behalf of China.
As late as in 1932, China has been telling the world that its southernmost
border was Hainan Island. In a Note Verbale to the French Government on
September 29, 1932 protesting the French occupation of the Paracels, the
Chinese Government officially declared:
Note of 29 September 1932 from the Legation of the Chinese Republic in
France to the Ministry of Foreign Affairs, Paris:
On the instructions of its Government, the Legation of the Chinese Republic in
France has the honor to transmit its Government’s reply to the Foreign
Ministry’s Note of 4 January 1932 on the subject of the Paracel Islands.
The Si-Chao-Chuin-Tao Islands, also known as Tsi-Cheou-Yang and called the
Paracel Islands in the foreign tongue, lie in the territorial sea of Kwangtung
Province (South China Sea); the northeast are the Ton-Chao Islands; the Si-Chao-Chuin-Tao
Islands form one group among all the islands in the South China Sea which are
an integral part of the territorial sea of Kwangtung Province.
According to the reports on the Si-Chao-Chuin-Tao (Paracel) Islands drawn up in
the Year XVII of the Chinese Republic (1926) by Mr. Shen-Pang-Fei, President of
the Commission of Inquiry into these islands, and to the files of these islands
compiled by the Department of Industry of Kwangtung Province, the islands lie
between longitude 100°13’ and 112°47’ east. More than 20 in number, large
and small, most of them are barren sandbanks, 10 or so are rocks and 8 are true
islands. The eastern group is called the Amphitrites and the western
group the Crescent. These groups lie 145 nautical miles from Hainan Island, and
form the southernmost part of Chinese territory. (Emphasis supplied)
xxxx
In short, in 1932 the Chinese Government officially declared to the world that
the “southernmost part of Chinese territory” or border was Hainan Island, which
for the first time according to the Chinese included the Paracels. This
declaration categorically affirmed the previous official maps of the Yuan, Ming
and Qing Dynasties that showed Hainan Island as the southernmost territory or
border of China. James Shoal, 800 NM away from the Paracels and 950
NW from Hainan Island, was never in Chinese history the southernmost territory
or border of China.
The same is obviously true for Scarborough Shoal, which is 380 NM from the
Paracels and 500 NM from Hainan Island. Since Hainan Island or even the
Paracels are the southernmost territory or border of China as officially
declared by China in its September 29, 1932 Note Verbale to the French
Government, then Scarborough Shoal is not part of, and could never have been part
of, Chinese territory.
Murillo Map
The oldest map in the world depicting Scarborough Shoal is
the Murillo map that was first issued in 1734 duringthe Spanish regime. The
Murillo map, entitled Mapa de las Islas Filipinas, was made by the Spanish
priest Fr. Pedro Murillo. The Murillo map clearly shows Scarborough
Shoal, at that time called Panacot, lying just across Zambales. Panacot was the
name given by Filipino fishermen to Scarborough Shoal during the Spanish
regime.
The real and unvarnished historical facts in the South China Sea are quite
different from what China has claimed them to be. Despite its name, which
was given by European explorers and cartographers, the South China Sea was
never the sole domain of China or of any one country. Even if we go back
to the Sung Dynasty, we find the early Filipinos already sailing across the
South China Sea to trade with the Chinese along the coast of Canton in mainland
China.
A noted Chinese scholar during the Yuan Dynasty, Ma Tuan-lin, wrote in his book
A General Investigation of the Chinese Cultural Sources, about traders from the
Philippines,which the Chinese at that time called Mo-yi or Ma-i. Ma Tuan-lin
stated in his book, published in 1322 during the Yuan Dynasty and republished
in 1935 in Shanghai:
There were traders of the country of Mo-yi carrying merchandise to the
coast of Canton [for sale] in the seventh year of Tai-ping-shing-kuo [of the
Sung Dynasty, that is 982 A.D.].
As early as 982 A.D., Filipino traders were already masters of the South China
Sea, sailing back and forth from the Philippines to China to trade, more than
400 years before the Chinese Imperial Admiral Zeng He launched his famoussea
voyages from 1405 to 1433 A.D.
China has been dangling to the Philippines and other claimant states its offer
for joint development of the disputed areas while shelving the sovereignty
issues, an idea suggested by the late Chinese paramount leader Deng
Xiaoping. There are at least three problems to this offer.
First, China wants to jointly develop the EEZ of the Philippines but refuses to
jointly develop China’s own EEZ. In effect, China is saying to the
Philippines, what is exclusively China’s economic zone is China’s alone, but
what is exclusively the Philippines’ economic zone belongs to both China and
the Philippines, and if the Philippines does not agree, China’s warships will
be there to prevent the Philippines from exploiting its exclusive economic
zone.
Second, as explained by Chinese officials and scholars,China’s offer of joint development
is subject to theprecondition that participating coastal states must first
expressly recognize China’s “indisputable sovereignty” under its 9-dashed line
claim. This precondition effectively means that once a state agrees to joint
development, it must not only vacate any island it possesses in the Spratlys
and turn over the same to China, it must also renounce any maritime claim
within the 9-dashed line area. This precondition demanded by China is
obviously inconsistent with its offer to shelve the sovereignty issue.
Third, if the Philippines agrees to China’s joint development offer, the
Philippines will in effect give up its exclusive “sovereign rights” to exploit
all the living and non-living resources in its own EEZ. The
Philippines will also give up its exclusive right to exploit the mineral
resources in its own ECS. The bottom line is that China’s joint
development offer will negate the maritime entitlements of the Philippines
under UNCLOS. This is constitutionally impermissible because our
1987 Constitution mandates the State to “protect the nation’s marine wealth in
its xxxexclusive economic zone, and reserve its use and enjoyment exclusively
to Filipino citizens.” Any joint development with China constitutes a
“culpable violation of the Constitution.”
Of course, the fact that the use and enjoyment of our EEZ is reserved
exclusively to Filipino citizens does not mean that Chinese companies cannot
participate in the exploitation of oil and gas in our EEZ. They can but
as technical and financial contractors of the Philippine Government or Filipino
companies under Philippine law, not Chinese law. As such technical contractors
and financial contractors, they may be paid in kind. This is
actually the set-up in Malampaya where Shell is the technical and financial
contractor of the Philippine Government under Philippine law.
Not one of the claimant states to the Spratlys has accepted China’s joint
development offer. Acceptance of China’s joint development offer
means a complete surrender to China’s outlandish “indisputable sovereignty”
claims. In an article in The Diplomat dated February 28, 2014,
Prof. Carl Thayer, a well-known regional security analyst, quoted how a
Malaysian defense official viewed China’s joint development offer:
Nor are we ready to consider joint development activities with the Chinese.
That would require recognition of China’s claims in the South China Sea,
including our EEZ. And that’s not our policy. (Emphasis supplied)
Vietnam has a similar view of China’s joint development offer. Dr. Tran Truong
Tuy, Director of the Centre for South China Sea Studies at the Diplomatic
Academy of Vietnam,interprets the Chinese offer as saying: “What is mine is
mine, what is yours is mine and we are willing to share.”
Clear expansionist designs
The world is now familiar with the expansionist designs of
China in the South China Sea. China’s creeping invasion of the islands, rocks
and reefs, as well as of the waters, of the South China Sea grows in force and
aggressiveness each dayas China’s naval forces assume greater superiority over
those of other coastal states. The Philippines is particularly
vulnerable to Chinese bullying because the Philippines has the weakest navy
among all the major disputant states in the South China Sea.
The Philippines lost Mischief Reef in 1995 and Scarborough Shoal in 2012 to
Chinese invasion. Vietnamlost the Paracels in 1974 and Fiery Reef Cross
in 1988 to Chinese invasion. China, as I speak, threatens to forciblyevict the
handful of Philippine marines aboard the shipwrecked RPS Sierra Madre in
Ayungin Reef, an LTE within the Philippines’ EEZ in the Spratlys. The
Chinese invasion and occupation of these islands, rocks and LTEs are acts of
armed aggression outlawed by the United Nations Charter.
The world should now remind China of Deng Xiaoping’s solemn commitment to the
world when he declared in his speech before the United Nations General Assembly
on April 10, 1974:
A superpower is an imperialist country which everywhere subjects other
countries to its aggression, interference, control, subversion or plunder and
strives for world hegemony. xxx If one day China should change her color and
turn into a superpower, if she too would play the tyrant in the world, and
everywhere subject others to her bullying, aggression and exploitation, the
people of the world should identify her as social-imperialist, expose it,
oppose it and work with the Chinese people to overthrow it. (Emphasis
supplied)
China’s rulers today have transformed China into the imperialistic hegemon that
Deng asked the Chinese people and the world to fight and overthrow should
China’s rulers in the future deviate from his vision of a peaceful and
law-abiding China. Deng had repeatedly promised the world that China would
“never seek hegemony”. Sadly for Deng, andsadly for the rest of the
world, especially for the Philippines,that day has come.
I started this speech by articulating the Philippine State’s constitutional
obligation to protect its marine wealth in its EEZ. I have explained how
the Philippine Government is fulfilling this constitutional duty by filing the
arbitration case against China. I have explained why we are entitled to
our full 200 NM EEZ in the West Philippine Sea and why China’s 9-dashed line
claim is invalid for being contrary to UNCLOS.
I have also explained why any joint venture with China under its terms will
constitute a “culpable violation of the Constitution,” a sell-out of our
national patrimony. I end by affirming that this exercise of pursuing the
arbitration case against China is to reserve the use and enjoyment of our
marine wealth in our EEZ exclusively to Filipinos, as mandated by the
Constitution, which we have all sworn to uphold.
Thank you and a pleasant morning to all.
http://www.interaksyon.com/article/82146/explainer--protecting-the-nations--marine-wealth-in-the-west-philippine-sea
