Historical Rights vs. Modern Law: The Battle for the South China Sea

By Louis ‘Barok’ C. Biraogo

In a poignant commentary delivered at ADR Stratbase Institute’s forum, former Supreme Court Justice Antonio T. Carpio underscored the legal avenues the Philippines can exploit to counter China’s aggressive claims in the South China Sea. Carpio’s assertions are a robust call to arms against China’s controversial and largely discredited 10-dash line. This analysis delves into the legal, historical, and geopolitical underpinnings of Carpio’s recommendations and examines the broader implications for international maritime law.

Carpio’s Legal Arsenal Against China

Carpio enumerates several potential arbitration cases the Philippines can pursue to further undermine China’s maritime assertions:

Extended Continental Shelf Claim: The Philippines recently submitted a claim to the UN Commission on the Limits of the Continental Shelf (UNCLCS) for an extended continental shelf beyond its 200-nautical-mile exclusive economic zone (EEZ) off Palawan. China and Malaysia opposed this claim, setting the stage for arbitration. Carpio argues that under UNCLOS, China has no valid claim as its coastline is more than 350 nautical miles away from the disputed area. This makes China’s 10-dash line irrelevant, reinforcing the 2016 arbitral ruling that already dismissed this line as baseless.
Scarborough Shoal Fishing Rights: Carpio proposes a third arbitration to address China’s restriction on Filipino fishermen in Scarborough Shoal’s lagoon, a traditional fishing ground for Filipino, Chinese, and Vietnamese fishermen. Despite the 2016 arbitral award affirming these rights, China continues to block Filipino access, highlighting the need for enforceable rules on sustainable fishing.
Civilian Presence in Ayungin Shoal: Carpio suggests that the Philippines should establish a civilian presence on Ayungin Shoal, a feature within its EEZ as per the 2016 ruling. Establishing facilities like a lighthouse or a marine research center would provoke another arbitration case, likely resulting in another ruling against China.
Environmental Damages at Escoda Shoal: The Philippines can seek damages for China’s destruction of coral reefs, a violation of its UNCLOS obligations. Successful arbitration could further erode the legitimacy of China’s claims.

Historical and Legal Context

China’s claims are based on a mix of historical rights and interpretations of international law:

Historical Rights: China asserts sovereignty over the South China Sea based on centuries of navigation, fishing, and administration. This claim relies on historical documents and maps dating back to the Han Dynasty, asserting continuous control and usage of the region.
Uti Possidetis Juris: This principle suggests that new states should inherit pre-independence borders. China argues that its historical claims have been inherited through successive regimes, maintaining its rights over the South China Sea.
Territorial Integrity and Sovereignty: China contends that sovereignty over islands within the nine-dash line extends to surrounding waters, including EEZ and continental shelf rights, as per UNCLOS provisions.

Provisions of International Laws and Landmark Decisions

UNCLOS: China’s historical claims clash with the United Nations Convention on the Law of the Sea (UNCLOS), which defines territorial seas, EEZs, and continental shelves. The 2016 South China Sea Arbitration, brought by the Philippines, ruled that China’s nine-dash line claims were incompatible with UNCLOS and had no legal basis. This landmark decision emphasized that any historical rights China might have had were extinguished upon ratifying UNCLOS.
Historic Waters Concept: While customary international law allows for claims over historic waters, these claims require long-term, uncontested authority. The 2016 arbitration tribunal found no evidence supporting China’s historical claims in this context.

Probing Carpio’s Claims: A Critical Examination

Carpio’s proposed legal actions are grounded in a strong understanding of international maritime law and the precedents set by the 2016 arbitral ruling. His approach leverages legal mechanisms to continuously challenge and invalidate China’s expansive claims:

Extended Continental Shelf: This arbitration could highlight China’s geographical overreach, reinforcing that its claims are not supported by international law.
Scarborough Shoal: Establishing enforceable fishing regulations would address the practical impacts of China’s actions, emphasizing the rule of law over might.
Ayungin Shoal: A civilian presence would circumvent China’s military arguments, further legitimizing the Philippines’ claims under UNCLOS.
Environmental Damages: Seeking reparations for ecological destruction would hold China accountable, reinforcing international norms on environmental protection.

Recommendations

To manage and eventually resolve these disputes, a multipronged approach is essential:

Pursue Arbitration: The Philippines should proceed with the proposed arbitration cases to accumulate legal victories that delegitimize China’s claims.
Strengthen Alliances: Engaging with other claimant states like Vietnam and Malaysia, and securing support from global powers, can bolster the Philippines’ position.
Promote Dialogue: Encouraging multilateral negotiations under international frameworks can facilitate peaceful resolutions.
Public Diplomacy: The Philippines should continue to highlight the legal and environmental implications of China’s actions to garner international support.
Sustainable Practices: Establish and enforce sustainable fishing and environmental regulations in disputed areas to set a precedent for responsible stewardship.

Conclusion

Carpio’s legal strategies present a formidable challenge to China’s aggressive posturing in the South China Sea. By adhering to international law and leveraging arbitration, the Philippines can systematically dismantle China’s baseless claims, ensuring a rules-based order in maritime governance. This legal battle is not just about territorial sovereignty but about upholding the principles of international law against might-based assertions. The world watches closely as these legal battles unfold, rooting for the triumph of law over unilateral imposition.