Posts Tagged ‘Justice Antonio Carpio’

South China Sea: One Year After The Philippines Win At The Permanent Court of Arbitration — Brilliant Statecraft or Treason?

July 12, 2017

By Ellen Tordesillas

Posted at Jul 12 2017 02:46 AM

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One of the good things that President Duterte has done was to rekindle relations with China which reached its lowest ebb during the administration of Benigno Aquino III.

Never mind that during the election campaign, he rode on the anti-China sentiments of most Filipinos fueled by the pro-American leanings of Aquino and his Foreign Secretary, Albert del Rosario.

Remember, a standard in Duterte’s campaign speech was his boast that he will ride on a jet ski to one of the islands in the disputed Spratlys and plant the Philippine flag. He would kiss the flag to dramatize his promise. Once in Malacanang, he was asked when he was going to jetski to Spratlys and he replied it was a joke. He said he didn’t even know how to swim.

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In the guise of independent foreign policy, Duterte didn’t just cozy up to China. He attacked the United States when then President Barack Obama reminded him to respect human rights amid reports of rampant killings in connection with his anti-illegal drugs campaign.

His foreign policy moves can be likened to a pendulum that swung from extreme right to extreme left. Today marks first year anniversary of the ruling of the Permanent Court of Arbitration in The Hague, Netherlands on the case filed by the Philippines against China on the latter’s activities in the disputed waters of the South China Sea.

China did not participate in the Arbitral Court proceedings.

It was a major victory for the Philippines. The Arbitral Court declared invalid China’s nine-dashed line map which covers some 85 percent of the whole South China which infringes on the economic exclusive zones of other countries namely the Philippines, Vietnam, Malaysia and Brunei.

The Arbitral Court also ruled that China’s  artificial islands – rocks that were turned into garrisons through reclamation – in the disputed South China Sea do not generate entitlements under the United Nations Convention on the Law of the Sea such as economic exclusive zone (220 nautical miles from the shore) and extended continental shelf (350 nautical miles).

As to Scarborough or Panatag Shoal, which is within the Philippine EEZ, the Arbitral Court said it’s a traditional fishing ground of Philippine, Chinese, Vietnamese and fishermen of other nationalities and should be maintained as such.

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Filipino fishermen had been denied access to the area since April 2012 after a two-month stand off between Chinese and Philippine Coastguards following arrest by a Philippine warship of Chinese fishermen in Scarborough shoal. Two Chinese ships remained even after the Aquino government withdrew its ships.

Duterte takes pride that because of his friendship with Chinese President Xi Jinping, Filipino fishermen are now allowed to fish in the area, which is being guarded by two Chinese ships.

It’s like a battered wife thankful that the husband has stopped beating her.

Duterte’s critics have scored his deference to China even  echoing  the position of China that historically South China Sea is theirs  as the name states.

In an ambush interview last April. Duterte said, “They really claim it as their own, noon pa iyan. Hindi lang talaga pumutok nang mainit. Ang nagpainit diyan iyong Amerikano. Noon pa iyan, kaya (It goes way back. The issue just did not erupt then. What triggered the conflict were the Americans. But it goes all the way back. That’s why it’s called) China Sea… sabi nga nila (they say) China Sea, historical na iyan. So hindi lang iyan pumuputok (It’s historical. The issue just had not erupted then) but this issue was the issue before so many generations ago.”

VERA Files fact-check about the name of South China Sea showed  that  South China Sea used to be called the Champa Sea, after the Cham people who established a great maritime kingdom in central Vietnam from the late 2nd to the 17th century.

That is contained in the book,  ‘The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea” by  Senior Associate Justice Antonio Carpio.

Carpio said it was the  Portuguese navigators who coined the name South China Sea.

“The ancient Malays also called this sea Laut Chidol or the South Sea, as recorded by Pigafetta in his account of Ferdinand Magellan’s circumnavigation of the world from 1519 to 1522. In Malay, which is likewise derived from the Austronesian language, laut means sea and kidol means south,” he further said.

“The ancient Chinese never called this sea the South China Sea. Their name for the sea was “Nan Hai” or the South Sea, he adds.

Reading Duterte’s blurting the Chinese line on the South China name, Ruben Carranza, former commissioner of the Presidential Commission on Good Government and now director of the Reparative Justice Program at the International Center for Transitional Justice, said “In football, that would be an ‘own goal.’

That’s when a player delivers the ball to the opponent’s goal.

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http://news.abs-cbn.com/blogs/opinions/07/11/17/opinion-ph-win-in-arbitral-court-one-year-after

Blog:www.ellentordesillas.com
E-mail:ellentordesillas@gmail.com

Related:

 (Contains links to information about Vietnam’s renewed efforts to extract oil and gas from the sea bed)

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Dominance of the South China Sea, the Malacca Strait and the Indian Ocean would solidify China’s One Belt One Road project
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The international arbitration court in the Hague said on July 12, 2016, that China’s “nine dash line” was not recognized under international law — making the Vietnamese and Philippine claims on South China Sea islands valid and lawful.
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China’s aircraft carrier Liaoning at Hong Kong
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Winning against China

June 13, 2017

This is the final column based on Justice Antonio Carpio’s e-book The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea. I summarize here Justice Carpio’s interpretation of the decision of the arbitral tribunal in the Permanent Court of Arbitration that upheld the Philippine positions on most issues. I also share Justice Carpio’s suggestions on how the Arbitral Award can be enforced.

On the Scarborough Shoal, the Tribunal ruled that the Shoal is a high-tide elevation entitled to a 12-nautical mile territorial sea but not to a 200-NM exclusive economic zone since obviously it is not capable of human habitation. The territorial sea of Scarborough Shoal, which includes the lagoon, is however a traditional fishing ground of Filipino, Chinese, and Vietnamese fishermen. In any case, China cannot prevent Filipino fishermen from fishing in the territorial sea of Scarborough Shoal.

China claims the Scarborough Shoal because the shoal was allegedly the observation point in the South China Sea where Guo Shoujing erected in 1279 CE an astronomical observatory. This claim is belied by the fact that China had already identified Xisha (the Paracels) as the observation point when China presented its argument against Vietnam in 1980. As clearly pointed out by Carpio: “The biggest rock on Scarborough Shoal is just 1.2 meters above water at high tide, and not more than six to 10 people can stand on it.  It is physically impossible to erect, or operate, the massive astronomical observatories of Guo Shoujing on the tiny rocks of Scarborough.”

As regard the environment, the arbitral tribunal ruled that China violated its obligation under the United Nations Convention on the Law of the Sea to “protect and preserve the marine environment” when China: (a) Dredged and built islands on seven reefs;  (b)Failed to prevent its fishermen from harvesting endangered species like sea turtles, corals, and giant clams in the Spratlys and Scarborough Shoal.

Other issues raised on which the arbitral tribunal has ruled are:

China violated the exclusive right of the Philippines to its EEZ when China: (a) Interfered with fishing activities of Filipino fishermen within Philippine EEZ, including imposing a fishing moratorium within Philippine EEZ; (b) Interfered with petroleum activities of Philippine-commissioned vessels within Philippine EEZ; (c) Failed to prevent Chinese fishermen from fishing within Philippine EEZ; and (d) Constructed an artificial island and structures on an LTE (Mischief Reef) within Philippine EEZ.

China also violated its obligation not to aggravate the dispute during the arbitration when China: (a) Dredged the reefs, reclaimed and built the islands while the proceedings were ongoing, and; Destroyed the evidence of the natural condition of the geologic features at issue when China dredged and reclaimed them while the proceedings were ongoing.

Finally,  China violated its obligation to observe maritime safety when Chinese coast guard vessels crossed the path of Philippine vessels at high speed.

In conclusion, Justice Carpio suggests ways forward in the enforcement of the arbitral award, namely: (a) Enforcement of the award by the world’s naval powers with respect to freedom of navigation and overflight for military vessels and aircraft; and, (b)  Enforcement of the award by the Philippines with respect to its exclusive right to exploit the resources of its EEZ in the South China Sea.

On the first enforcement method, Justice Carpio observed that naval powers such as the United States, France and Great Britain can enforce the award by sailing and flying, and conducting military activities, in the high seas and EEZs of the South China Sea.

On the second method of enforcement, the Philippines can do several things, such as suing in a jurisdiction that ratified UNCLOS, move before the International Seabed Authority for the suspension of China’s exploration permits in the area, move before the U.N. Commission on the Limits of the Continental Shelf (CLCS) for the suspension of China’s application for an ECS in the East China Sea, can negotiate its maritime boundaries with Malaysia (EEZ and ECS) and Vietnam (ECS), applying the Arbitral Tribunal’s ruling that no geologic feature in the Spratlys generates an EEZ and that the nine-dashed line has no legal effect on maritime entitlements, can delineate its ECS from Luzon and file its claim with the CLCS, there being no legal impediment from the nine-dashed line, and the Philippine navy and coast guard vessels and aircraft can continue to patrol  Philippine EEZ in the West Philippine Sea.

As a final word, Justice Carpio emphasized that the leaders of our nation must exercise utmost deliberation, consistency, and perseverance in seeking ways to enforce what the arbitral tribunal has finally awarded to the Philippines as its own EEZ in the West Philippine Sea.  Silence or inaction is no way to go as this can be interpreted as a state’s acceptance of a factual or legal situation.

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Supreme Court Senior Associate Justice Antonio Carpio

It is fitting to end this series this week, when we celebrate Independence Day of the Philippines. There can be no real independence without securing our sovereignty.  President Duterte’s approach to foreign policy, while laudable for its independence, has been reckless on its defense of national territory. Thankfully, we have Justice Antonio Carpio to remind our leaders of what needs to be done, I reiterate what I said at the beginning of this series, Justice Tony is a hero, a defender of the country’s territory and of our Constitution. Let’s be thankful for that.

Facebook: Dean Tony La Vina Twitter: tonylavs

http://thestandard.com.ph/opinion/columns/eagle-eyes-by-tony-la-vina/239177/winning-against-china.html

Related:

(Contains links to previous related articles)

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For about five years China has been loudly proclaiming “indisputable sovereignty over the South China Sea.” China has said, everything north of the “nine dash line” shown here, essentially, belongs to China.  On July 12, 2016, the Permanent Court of Arbitration in The Hague said China’s “nine dash line” was not recognized under international law.

Philippine President Duterte Stops Philippine-U.S. Patrols in South China Sea — Allowing Any Foreign Power to Live, Work and Loot Inside the Philippines Exclusive Economic Zone (EEZ)

October 12, 2016

South China Sea

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Malacañang said on Wednesday that President Duterte was determined to stop joint patrols with the United States in the South China Sea despite Supreme Court Associate Justice Antonio Carpio’s reminder that the Constitution mandated the state to protect the country’s territorial waters and exclusive economic zone (EEZ).

Presidential spokesperson Ernesto Abella said Mr. Duterte ordered a stop to joint patrols between the Philippine Navy and the US Navy because he did not want any Philippine action that China might deem hostile.

Presidential spokesperson Ernesto Abella. INQUIRER FILE PHOTO/JOAN BONDOC

The two navies began joint patrols in the South China Sea in April under the Enhanced Defense Cooperation Agreement signed by the Philippines and the United States two years ago.

The joint patrols began as the UN-backed Permanent Court of Arbitration in The Hague prepared to hand down a decision in an action brought by the Philippines challenging China’s claim to 90 percent of the South China Sea, including waters within the Philippines’ 370-kilometer EEZ.

On July 12, the tribunal ruled against China, saying it had no historic title to the South China Sea and had violated the Philippines’ right to fish and explore for resources in waters within its EEZ.

China, which refused to take part in the arbitration proceedings, rejected the decision, saying it would not change the situation in the South China Sea.

To assert its claims in the South China Sea, China is building artificial islands on reefs in the Spratly archipelago, topping some with airstrips that can handle large military planes.

The militarization of the area has raised tensions between China and its rival claimants—Brunei, Malaysia, the Philippines and Vietnam—but Beijing blames the tensions on the United States, which it claims is trying to contain its rise as a potential economic and military power in Asia.

Last month, Mr. Duterte said there would be no more joint patrols, as he did not want the Philippines to be dragged into a conflict between the United States and China over dominance in the South China Sea.

But Carpio, who has done extensive studies of the territorial dispute between the Philippines and China, said Mr. Duterte had a duty to protect the country’s territory.

Speaking to reporters at the closing ceremonies of the Philippine Amphibious Landing Exercise (Phiblex 33) at Philippine Marine Corps headquarters in Taguig City on Tuesday,  Carpio said the Constitution mandated the State to protect the country’s waters, which can be done only by sending patrol vessels to prevent foreigners from poaching on the country’s marine resources.

Carefully considered

He also said the Armed Forces of the Philippines was responsible for protecting the national territory. “Who is the head of the Armed Forces? The President,” he said.

Carpio said Mr. Duterte must rethink his position.

“There is only one power on earth that can stop the Chinese from poaching on the Philippine EEZ and that is the [United States],” he said.

Abella said Mr. Duterte’s decision had been “carefully considered” and “is fully aware of his responsibility regarding the EEZ.”

“He has his own alternatives regarding the matter,” he added.

Speaking during the Philippine Coast Guard anniversary on Wednesday, Mr. Duterte reiterated that he would not break any of the Philippines’ security agreements with the United States.

But he said Phiblex 33 was definitely the last joint military exercises of his presidency.

He said he had instructed Defense Secretary Delfin Lorenzana not to make preparations for joint maneuvers next year.

“It’s about time we change the rules here,” Mr. Duterte said. “I insist that we realign, that there will be no more exercises next year. Do not prepare, I told Defense Secretary Lorenzana. Do not make preparations for next year’s [war games]. I don’t want it anymore.”

“I will chart an independent foreign policy. We will not break or abrogate existing treaties because they say this will provide us with an umbrella,” Mr. Duterte said.

But he expressed cynicism about how the treaties could protect the Philippines, especially in a catastrophic World War III.

“See you in heaven,” he said.

http://newsinfo.inquirer.net/824760/duterte-determined-to-stop-joint-patrols-in-south-china-sea

Related:

 (The Philippines seems to be siding with China, Russia and Iran)

   (From July 12, 2016)

Above Chinese chart shows China’s “Nine Dash Line.” China says it owns all ocean territory north of the Nine Dash Line. There is no international legal precedent for this claim.  On July 12, 2016, the Permanent Court of Arbitration in The Hague said this claim by China was not valid.

China has no historical claim to the South China Sea, says Philippines judge

February 16, 2015

Loshana K Shagar  The Star/Asia News NetworkSunday, Feb 15, 2015

BRP Sierra Madre, a marooned transport ship which Philippine Marines live on as a military outpost, in the disputed Second Thomas Shoal, part of the Spratly Islands in the South China Sea March 30, 2014.

KUALA LUMPUR – China has no historical claim to the South China Sea, as it gave up that right when it became a signatory to the UN Convention on the Law of the Sea (UNCLOS), according to a Philippine Supreme Court judge.

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Justice Antonio Carpio said when a country became a signatory to the UNCLOS, it gave up historical claims in exchange for an exclusive economic zone (EEZ), comprising 200 nautical miles from a country’s coastline. “Even if they were not signatories, there is no historical proof that they have owned most of the areas they are claiming, such as the Scarborough and Spratly Islands.

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“In ancient Chinese maps dating back to the Song and Qing dynasties, the southernmost territory of China has always been Hainan Island, with its ancient names being Zhuya, then Qiongya, and thereafter Qiongzhou.

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“However, in more recent maps, the border has extended to a line of nine dashes, looping down to about 1,800km south from Hainan Island, almost near Sabah,” he said when delivering a lecture on the South China Sea dispute at the Raja Aziz Addruse Auditorium here on Friday.

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The event was jointly organised by the Bar Council, Universiti Malaya and the Philippine Embassy.

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The Chinese government has staked its claim to 90 per cent of the South China Sea, including the Spratly Islands, an archipelago of 750 islands and reefs near the Philippines.

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The Philippine government, in response, presented a series of ancient maps which show that islands such as Scarborough were marked as Philippine territory long before it appeared in Chinese maps.

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Carpio is visiting ASEAN countries to deliver a series of lectures on the dispute. Malaysia is his first stop. “We have filed a territory dispute over China’s claims with the United Nations, and are waiting for a tribunal to decide on the arbitration case.

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“Once the tribunal provides its ruling on the matter, we expect China to abide by it, even if they are not participating in the case before the Permanent Court of Arbitration in The Hague,” said Carpio.

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The UN tribunal is expected to provide a ruling on the case late this year or early 2016, but Carpio said that would not end the dispute involving the South China Sea, which is either partially or wholly claimed by the Philippines, China, Brunei, Taiwan, Malaysia and Vietnam.

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“I think world opinion will be on our side and I don’t think any country in the world can for long violate international law especially if there’s a ruling by a competent international tribunal. “If the Philippines wins its case and China refuses to comply with the ruling, we will petition a United Nations council every year until China complies with the decision,” added Carpio.

http://news.asiaone.com/news/asia/china-has-no-historical-claim-south-china-sea-says-philippines-judge

Related:

 (Contains links to other related articles)

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Reclamation: China has already turned a worthless piece of coral into an island big enough for an airstrip at Fiery Cross reef in the South China Sea

Screenshot of a Chinese Coast Guard vessel ramming a Vietnamese vessel in May 2014

China says it owns all the South China Sea north of the “nine dash line” shown above

China claims ownership of about 90% of the South China Sea. Most of China’s neighbors believe otherwise.

The chart below shows the area declared by China on 1 January 2014 as “an area under China’s jurisdiction.” China says “foreign fishing vessels” can only enter and work in this area with prior approval from China. Vietnam, the Philippines and others have said they will not comply with China’s law. Experts say, this could be the geographic area that China could declare an air defense identification zone (ADIZ).

Historical Facts and Maps Dating From the Song Dynasty Prove China’s South China Sea Claims Today Are False

June 21, 2014

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Art depicting Chinese Admiral Zheng He

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The country owes Justice Antonio Carpio a debt of gratitude for his recent lecture, titled “Historical Facts, Historical Lies, and Historical Rights in the West Philippine Sea,” in De La Salle University. Its 62 pages (about 40 of which contain maps dating from 1136 AD during the Song Dynasty and through the Yuan, Ming and Qing Dynasties) provide the most lucid and exhaustive exposition of those topics I have come across. Brilliant.

Given its importance to current and future generations of Filipinos—put simply, China’s 9-dash-line claim deprives the Philippines of 80 percent of its exclusive economic zone (EEZ) and 100 percent of its extended continental shelf (ECS) in the West Philippine Sea—I strongly suggest that Education Secretary Armin Luistro and Commission on Higher Education Chair Tati Licuanan make sure it is required reading in all schools. The rest of us, including the Chinese-Filipino community, can access it from the Internet, but it should be published as a monograph. Knowledge is power.

Carpio demolishes, point by painful point, the Chinese government’s assertion that “historical facts” justify its 9-dash-line claims, by citing actual historical facts based on China’s own (a) historical maps, (b) constitutions, and (c) official pronouncements, which are all “glaringly inconsistent” with China’s current position.

Item: Maps. Carpio shows 16 maps drawn by Chinese authorities or individuals, from 1136 to 1933. These maps show that Hainan Island is the southernmost territory of China.  He also shows three maps drawn between 1700 and 1833 by foreigners showing the same thing. What does this have to do with us?  Simply, “There is not a single ancient Chinese map, whether made by Chinese or foreigners, showing that the Spratlys and Scarborough Shoal were ever part of Chinese territory.”

Carpio also shows 34 maps drawn between 1636 and 1933 by Philippine authorities and foreigners, all showing Scarborough Shoal, named or unnamed (Punto de Mandato, Panacot, Bajo de Masinloc), as part of the Philippines.

Another point on Scarborough: It was used from the 1960s-1980s as an impact range for US and Philippine warplanes (pictures of wreckages of dummy ordnances in the waters). Neither China nor any other country protested these bombing practices, despite worldwide prior notices to mariners, through the International Maritime Organization of the United Nations, for them to keep away from Scarborough Shoal during the practices. If the Philippines can bomb a shoal repeatedly over decades without any protest from neighboring states, it certainly must have sovereignty over such shoal.

Item: Constitutions. Carpio quotes from five constitutions of China since the fall of the Qing Empire in 1912, which reiterates that its territory remained the same as the territory of the Qing Dynasty (which means that Hainan Island is China’s southernmost territory).

Carpio then shows that under international law, the territory of the Republic of China as of the effectivity of these constitutions is limited to the territory of the Qing Dynasty (with Hainan Island as its southernmost territory).

Item: Official pronouncements. As late as 1932, China was telling the world that its southernmost border was Hainan Island (now including the Paracels), and Carpio quotes from a note verbale issued to the French government on Sept. 29, 1932, protesting the French occupation of the Paracels: “These groups lie 145 nautical miles from Hainan Island, and form the southernmost part of Chinese territory.”

If Hainan Island and the Paracels constitute the southernmost part of Chinese territory per the official declaration of the Chinese government in 1932, asks Carpio, how can Scarborough Shoal, which is 380 NM from Paracels and 500 NM from Hainan, be part of Chinese territory?

Yet, that is what China’s 9-dash-line claim asserts. And China’s basis for this is “historical facts and international law,” as stated by its foreign minister. Carpio demonstrated that actual historical facts belie China’s claim.

But even if the historical facts were consistent with China’s 9-dash-line claim, it still would not be enough. Historical facts have no bearing whatsoever under the United Nations Convention on the Law of the Sea (Unclos). In the same way that the 1481 Papal Bull, which divided the undiscovered world between Spain and Portugal, has no legal effect today; and the sea voyages of Chinese Admiral Zheng He from 1405 to 1433 cannot be a basis for China’s claim to the South China Sea, which is where it has its 9-dash line. Furthermore, Zheng He’s voyages did not result in any claims of sovereignty, or colonies or anything. South China Sea was used as trade routes by the Austronesians a thousand years before Zheng He. (Carpio makes an interesting point about Filipino traders in balangay sailing between the Philippines and China 400 years before Zheng He, and Visayan caracoa’s pillaging the Fukien coast of China).

Photo: Zheng He.  Filipino traders in balangay sailing between the Philippines and China 400 years before Zheng He, scholars say.

Unfortunately for China, international law is also against its 9-dash-line claim. Under the Unclos, countries have 12 NM of territorial sea, 200 miles of EEZ, and another 150 miles of ECS. Under China’s claim, James Shoal, the southernmost territory is 950 NM from China (within Malaysia’s EEZ). Moreover, it is a fully submerged reef, 22 meters underwater. Ridiculous.

Thank you, Justice Carpio, for showing us that the emperor has no clothes.

A question, though: Where are our historians, political scientists and China watchers, who should have done this research?

Read more: http://opinion.inquirer.net/75794/justice-carpio-tears-down-chinas-historical-lies#ixzz35HBZGnUy
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Related: “Admiral Zheng He and China’s Treasure Fleet”

http://www.southbaysail.com/admiral-zheng—chinas-treasure-fleet.html