THE RULE OF LAW IN THE WEST PHILIPPINE SEA DISPUTE

By Hon. Justice Antonio T. Carpio

1. 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.

2. International Law - 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. International law, levels the playing field between China
and the Philippines.

3. 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. 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.

4. 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. . In short, UNCLOS is the worlds Constitution for our oceans
and seas, which comprise two-thirds of the surface of our planet.

5. 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, gives all states
what is called the AREA the seabed outside the jurisdiction of coastal states. The AREA is the
common heritage of mankind

6. By ratifying UNCLOS, member states bound themselves, and gave their consent in advance, to follow
a finely crafted dispute settlement mechanism specified in UNCLOS. There is no opt-out 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.

7. The Philippines and China are bound by this dispute settlement mechanism since both have ratified
UNCLOS. In the words of UNCLOS, absence of a party or failure to submit to such proceedings shall
not constitute a bar to the proceedings.

8. For coastal developing countries that ratified UNCLOS, the heart and soul of UNCLOS is the entitlement
of every coastal state. 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

9. Chinas 9-dashed 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.

10. In the case of the Philippines, Chinas 9-dashed 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.
11. Chinas 9-dashed 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.

12. In the apt words of the Director-General of the Maritime Institute of Malaysia, Chinas 9-dashed 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.

13. To uphold Chinas 9-dashed line claim is to wipe out centuries of progress in the law of the sea since
the time of Grotius. Scholars of the law of the sea all over the world consider Chinas 9-dashed line
claim as utterly without basis in international law. Chinas 9-dashed line claim, if left to stand, will
destroy and abrogate UNCLOS, the Constitution for the oceans and seas of our planet.

14. 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.

15. 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.

16. 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.

17. 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. 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.

18. 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.


19. 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 opt-out of compulsory
conciliation.

20. 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?

21. 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.

22. 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.
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.

23. The only remaining recourse for the Philippines is to appeal to world opinion. As life-long 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.

24. 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.

25. 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.