Dilag, Marianne A.

Constitutional Law 1

“Understanding the Philippine Position on the West Philippine Sea”

“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 a social
imperialist, expose it, oppose it and work with the Chinese people to
overthrow it.”

As reiterated by Justice Carpio, United Nations Convention on the Law of

the Sea (UNCLOS) governs maritime disputes on overlapping maritime zones
like overlapping territorial seas, exclusive economic zones (EEZ) and extended
continental shelf (ECS) and does not govern territorial disputes.

The 1982 United Nations Convention on the Law of the Sea defines three
distinct areas-territorial waters, exclusive economic zones, and international
waters. Territorial waters are those under government sovereign control and
legally recognized as twelve nautical miles from the low water mark of a coastal
state. This zone is under the exclusive control of the state, but ships of all
nations are allowed innocent passage. Beyond twelve nautical miles is the
Exclusive Economic Zone (EEZ), which extends seaward to 200 nautical miles.
Within an EEZ, the coastal state has special rights to use and exploit marine
resources such as oil exploration, seabed mining, and fishing. The international
community still enjoys the rights and freedom of navigation and over flight in
the EEZ, as well as the ability to lay submarine telecommunications cables and
other non-resource related uses of the oceans. Beyond 200 miles is considered
international waters where all coastal and non-coastal states have equal access
and enjoy the freedom of the seas and other activities.1

1
1 http://www.atlanticcouncil.org/blogs/new-atlanticist/maritime-disputes-and-international-law,
Reveron, D., Atlantic Council, Maritime Disputes and International Law, April 19, 2010, September 5, 2014
 This is where the issue arises in Justice Carpio’s view regarding our
nation’s marine wealth in the West Philippine Sea when the imperialist country,
China claims almost 90% of the South China Sea under its so-called 9-dashed
line which unfortunately overlaps 80% of the Philippines’ EEZ in the West
Philippine Sea. His discussion of the Territorial Dispute focuses on whether the
Philippines will keep or lose 80% of its exclusive economic zone and 100% of
its extended continental shelf in the West Philippine Sea and our duty to uphold
the mandate of our 1987 constitution that states: “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.”

As a Filipino citizen, and a law student I strongly affirm to what our 1987
constitution mandates as specified by Justice Carpio, just as a soldier will do his
duty in service of the country without any reservation, we must protect our
nation’s marine wealth for the advantage of all Filipino Citizens in any way
possible.

Hence, as a small country that guises as one that is easy to oppress but
will never dispirited and as a country that “adopts the generally accepted
principles of international law as part of the law of the land and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity with all
nations.”2, Philippines opted to file an arbitration case against China in
accordance with The 1982 United Nations Convention on the Law of the Sea
which at stake in the arbitration will determine whether Philippines will keep
or lose 80% of its exclusive economic zone and 100% of its extended
continental shelf in the West Philippine Sea.

Undeniably, China will not just concede without a fight by maintaining

their confidence, through its scholars and officials, that the arbitral tribunal has
no jurisdiction over the Philippines’ claim and gave out two reasons, one of
which is their 9-dashed-line claim being a historical right.

The right which China officially notified the world where no single
country in the world recognizes, respects, tolerates or acquiesces. The
historical right which according to non-Chinese scholars of the sea is without
basis under international law.

2
Tanada v Angara, G.R. No. 118295
 Allow me to enumerate why China cannot claim any historical right as
cited by Justice Carpio,

First, UNCLOS extinguished all historical rights of other states within the
200 NM EEZ of the adjacent coastal state. 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.

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 on territorial sea. Thus,
under UNCLOS, a state cannot claim historical rights over waters beyond its
territorial sea. 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 water falls 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 fails to comply
with any of these four conditions.

I affirm his statement when he said that 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.
 In an article by Jojo Malig he quoted Bensurto who said that under
UNCLOS you are not supposed to occupy unoccupied features and wondered
how China can have historical claims to continental shelf when a continental
shelf is a modern concept.3

China’s 9-dashed-line claim was eventually refuted by the Philippines in

saying that this does not establish an EEZ for the reason that this did not
represent a measure starting from the coastlines or habitable islands.

Justice Carpio is right when he said that 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.

He also sustained that China has no EEZ that overlaps with the
Philippines’ EEZ in the Scarborough area and that 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 from the Zambales coastline in Luzon
facing Scarborough Shoal. Furthermore, Justice Carpio said that even by
granting the Chinese-held Paracels an EEZ, the Paracels are about 480 NM from
Luzon. To have overlapping EEZs, the distance between the opposite baselines
in Luzon where its distance from the nearest Chinese baseline is less than
400NM.

If only all these technicalities that displays our nation’s unquestionable right
over this EEZs will be used and China decides to approve of it then there’s will
be no dilemma for our country but unfortunately, China won’t comply with the
demands of smaller countries and has no plans of resulting to international law
because apparently, it is not on their side.

On the other hand, what’s really in it for China that despite her whopping
territory she suddenly has been persistent of her historical right over what
belongs to our nation and the other claimant states?

3
http://www.abs-cbnnews.com/focus/06/06/13/unclos-does-not-support-chinas-claims-
us-naval-expert-says, Malig, D., ABS-CBNNEWS.COM, UNCLOS does not support China's
claims, US naval expert says, June 6, 2013, September 6, 2014
 One, South China Sea accounts for 10 percent of the world’s fishing
revenue. This revenue is split between China, Philippines, Taiwan, Malaysia,
and Brunei who each claim small part of the South China Sea as their own
through various treaties.

Two, the total annual income of all these nations a year is $5 Trillion
dollars a year. If China can claim all of the South China Sea as its own, China
would be the richest nation on earth.

Three, the only undetermined fact is the oil that Chinese scientist have
found, but China has never tap any of these resources yet. Let’s just say many
countries in the Middle East have been able to survive off of oil revenue being
70-80% of their total income. How much more richer and powerful would
China be if they had full ownership of the South China Sea. 4

Scarborough Shoal is a treasured island. It is located on the west coast

part of Philippines particularly in Luzon. It is said to be rich in natural resources
and minerals. An island like this is full of treasure given by our mother nature.
From water to land, we can say that it is truly a paradise. Everything in this
island is considered a gift from God, enough to make greedy country to conquer
and take it away from being a property of Philippines. 5

Even if we trace back to our history, Scarborough Shoal is clearly depicted

in the Murillo map entitled Mapa de las Islas Filipinas by the Spanish priest Fr.
Pedro Murillo. Scarborough Shoal was even called Panacot by Filipino
fishermen during the Spanish Regime.

It is even comical when Justice Carpio included an article by Bill Hayton

whereas China had created an “Inspection Committee for Land and Water
Maps” to formally outline every part of Chinese territory. It is very fascinating
how the members of these committee actually came up with the list. The
committee just copied from the existing British Charts, translated it and voila,

4
http://chinavsphilippineswar.blogspot.com/, China vs. Philippines War. Road to World
War 3: How the battle for the 5 trillion dollar fishing industry + oil might cause another
devastating war. May 25, 2012

5
http://outravel.blogspot.com/2012/04/treasure-in-scarborough-shoal-
island.html, Outravel, Treasure in Scarborough Shoal Island – Philippines.
they have their list even without scouting any of these Islands because the
committee had no means of doing such.

According to Ziad Haider, a lawyer and Asia Director of the Truman

National Security Project, China's willingness to abide by international norms
would not only telegraph confidence, but could help offset the growing anxiety
generated by its military modernization and manoeuvrings among neighbours
who fear the Beijing doctrine may be veering toward realpolitik. For its part,
the United States has expressed its support for the Philippines' submission.
President Barack Obama's visit to the Philippines in late April will provide an
opportunity to reaffirm the importance of such a rules-based approach to
managing the dispute. Yet that largely depends on how Beijing responds.

To be sure, nationalist public sentiment stoked by Beijing may have

painted China into a corner. Hours after the Philippine Foreign Secretary
announced the Memorial's submission on March 30, the Chinese Foreign
Ministry responded that it did not accept the Philippines' submission of the
dispute for arbitration and called on the Philippines to return to bilateral talks.
With its Foreign Minister stating that China will never accede to "unreasonable
demands from smaller countries" in the South China Sea, its Defence Minister
stating that China will make "no compromise, no concessions," and official
media outlets wading in with criticism of the Philippines' "unilateral" actions in
filing its Memorial, it will be that much harder to backtrack. Yet submitting to
an international tribunal is by no means beyond the pale for Beijing. China
regularly engages in the WTO dispute settlement system and has a relatively
strong compliance record in the face of adverse rulings, largely due to the
reputational costs of non-compliance.

Arbitrating the South China Sea dispute is assuredly more fraught than
commercial disputes, grating as it does on China's rawest nerve: territorial
sovereignty. That is why it must be complemented by all claimant states
exploring the equivalent of an amicable settlement: shelving questions of who
owns what and focusing on joint development of resources for which
compelling precedent exists.6

To further Haider’s view of China’s strong compliance record in the face

of adverse rulings. Justice Carpio cited three problems to China’s offer as saying
“What is mine is mine; what is yours is mine and we are willing to share.”

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 the precondition 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 Spratly’s 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 xxx exclusive economic zone, and reserve its
use and enjoyment exclusively to Filipino Citizens.” Any joint development
with China constitutes a “culpable violation of the constitution.”

6
http://www.foreignpolicy.com/articles/2014/04/10/beijing_should_let_law_reign_
south_china_sea, Haider, Z. Foreign Policy, Nine-Dash Mine: Why Beijing should let
international law reign in the South China Sea., April 10, 2014, September 6, 2014
 Not one of the claimant states to the Spratly’s has accepted China’s joint
development offer because this would equate to a complete surrender to
China’s outlandish indisputable sovereignty claims.

Justice Carpio cleared that the fact that the use of enjoyment of our EEZ
is reserved exclusively to Filipino Citizens does not mean that Chinese
companies cannot anymore participate as technical and financial contractors.

In my humble opinion, Judge Carpio failed to discuss a possibility stated

in the first problem in China’s offer whereas China leaves us in a life and death
situation where we have to choose between giving up our nation’s special rights
to use and exploit marine resources such as oil exploration, seabed mining, and
fishing in our EEZ in a maritime dispute and welfare of the Filipino people living
within our territory and those in China.

The right to life is considered a fundamental human right because,

without it, enjoyment of all of the other rights and freedoms established in
international human rights Conventions would be rendered nugatory; there
can be no rights if there is no life.

Given the fundamental importance of the right to life to the protection of

human rights, under most human rights instruments the right to life is a
supreme right from which no derogation is permitted, even in time of a public
emergency threatening the life of the nation. 7

Yes, we should reserve the use and enjoyment of our marine wealth in
our EEZ exclusively to Filipinos, as mandated by the constitution, which we all
sworn to uphold but up to what extent are we willing to vow on this if there will
already be a threat to a person’s life, liberty and property, which, we also have
solemnly sworn to uphold and this world is not just all about lengths and
widths, depths and heights. It is about the existence of life.

Meyer v. Nebraska says that the core of protected liberty includes not
merely freedom from bodily restraint but also the right of the individual to

7
http://www.humanrights.is/the-human-rights-
project/humanrightscasesandmaterials/humanrightsconceptsideasandfora/substantivehu
manrights/therightstointegrity/, Icelandic Human Rights Centre, The Rights to Integrity
contract, to engage in any occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children [and] to worship God according
to the dictates of conscience. 8

I started my response to Justice Carpio’s article with the Chinese

paramount leader Deng Xiaoping’s solemn commitment to the world in his
speech before the United Nations General Assembly on April 10, 1974. Sadly for
Deng and for the rest of the world that the day has come, that China has decided
to outlaw international laws that promote justice and equity among nations and
show the world what power she has over small nations.

Despite not facing any threat to its security, China has embarked on a
path of radical change to both its military strategy and capabilities. The
realization in the 1980s that the Soviet Union was no longer a threat for major
conflict and the Gulf War have had a profound effect on Chinese military
thinking. The strategic focus has now shifted to the offensive. The main theme
is power projection and the ability to fight a modern war with advanced
technology.

China has also used its economic boom and change in military strategy to
commence an ambitious military modernization program. The PLAAF is
acquiring some of the most advanced fighter/bomber aircraft and weapons in
the world. They are also purchasing state of the art air defence systems and
developing supporting aircraft roles such as in-flight refuelling and airborne
early warning. The PLAN is also upgrading its fleet with power projection in
mind. China has an active submarine replacement program in place and has
purchased Russian Kilo-class submarines. New surface vessels are being built
and the PLAN is paying more attention to replenishment at sea capability. While
the PLA has not received the same attention as the navy or air force, it has
formed a large RRU of well-equipped soldiers. China has also continued to
upgrade its nuclear weapons and has developed a solid fuel missile with a MIRV
capability. A space program has also been active and there is a program to trial
a space shuttle by 2005.

Bernas, S.J., 2009. The 1987 Constitution of the Republic of the Philippines: A
8

Commentary. 2009 Ed. Manila, Philippines: REX Book Store.

 It is clear that China's economic and military transformation has been
aimed at challenging the balance of power that has existed in the region since
World War Two. China has demonstrated hegemonic intentions through its
territorial claims in the South China Sea and in its recent actions against
Taiwan. A more aggressive and expansionist policy may occur as China faces
more pressure to provide food and resources for one quarter of the world's
population. If the current transformation continues, China will have, in the
future, the economic and military might to threaten both the countries in the
region and the West. The closer ties with Russia have already resulted in a
strategic relationship that is designed to counter the influence of the US. How
long this relationship will be required is unknown. With its ongoing effort to
develop a high technology economic system, China has set the foundation that
will likely ensure that it is much stronger than the former Soviet Union and
perhaps even more powerful than the US.

A communist government, that has demonstrated that it is unhappy with

its status in the world, also rules China. While Western governments have
devoted a great deal of time and thought on how to treat China, their policies
have not had any effect on the current regime's respect for human rights or
democracy. The fundamental issue is that the stability of the CCP itself
represents a concern for both Asia-Pacific and world security. Any movement
by the West to promote human rights and democracy in China represents a
direct threat to the existing regime. The brutality of the Tiananmen massacre
should serve as a warning of the importance the CCP places on maintaining
power. China more and more sees itself as a counter to Western values and way
of life. In its effort to emerge as a great power, China has changed its security
strategy from defensive to offensive. If China wants to be a dominant world
power, and chooses to act based on the example of the former Soviet Union, it
will have the potential to seriously undermine the current world order.

The economic and military transformation of China is well underway. It

is critical that the West not be naive to its intentions. With its ambitions
concerning territorial claims, the challenges it will face providing for its
population and the insecure and suspicious nature of its communist
government, Canada and the West face a potentially serious threat from China
in the future.9

After all is said and done, our nation like any other country will definitely
protect what they uphold and believe belongs to them for the greater good of
their people but what will resolve disputes if no country, big or small, decides
to concede will be the stand of rest of the world. No imperialist country is too
big and powerful of a nation with the rest of the world.

9
http://fas.org/nuke/guide/china/doctrine/0046.htm, Major H.A. Hynes, China: the
Emerging Superpower