Rappler Talk: Making China follow the rule of law

EXCLUSIVE: Philippine Supreme Court Justice Antonio Carpio talks to Rappler about the legal case against China in the South China Sea

Rappler talked to Antonio Carpio, Senior Associate Justice of the Philippine Supreme Court, about how the Philippines will fare against China in the two countries’ maritime dispute over the West Philippine Sea.

Starting Tuesday, July 7, until July 13, the Philippines will argue its historic case versus China before a UN Arbitral Tribunal in The Hague. The core issue to be resolved is: Does the Arbitral Tribunal have jurisdiction over the dispute?

It’s been more than 2 years since the Philippines brought China to an international arbitration court. The Philippines’ main claim is that the 9-dash line of China, which swallows a vast expanse of our Exclusive Economic Zone, violates international law as stipulated in the UN Convention on the Law of the Sea (UNCLOS), to which China is a signatory.

Justice Carpio, who has extensively studied and lectured on the historical roots and legal dimensions of the South China Sea dispute, joins the Philippine contingent bound for The Hague.

“Once the jurisdiction is won by the Philippines, and the tribunal says it has jurisdiction, then we practically know the tribunal will strike down the 9-dash line,” he told Rappler.

Watch Carpio’s interview with Rappler’s Maria Ressa here. Transcript below:

MARIA RESSA: Hello and welcome. We are sitting at the Philippine Supreme Court with Senior Justice Antonio Carpio to speak about a topic that he has long focused on, the South China Sea.

JUSTICE ANTONIO CARPIO: Thank you for this interview.

RESSA: Let’s focus on the South China Sea. For a long time, analysts have said that this is a global flashpoint. What’s changed?

CARPIO: Two things. First in November 2012 China seized Scarborough Shoal. That was a big blow to the Philippines because even in our Baselines Law, Scarborough Shoal is expressly specified as Philippine territory. Then you have now the sudden reclamations of China, and this has really gotten the attention of the entire world because China is reclaiming from submerged areas and creating islands and saying that these islands – artificial islands – have territorial sea, territorial air space, and it’s all contrary to UNCLOS. It’s against the freedom of navigation that the US has long espoused. And of course China is doing this within our exclusive economic zone, like Mischief Reef. It’s a totally submerged area at high tide, but China has reclaimed it and claims it’s their island. It’s claiming territorial sea, territorial air space over it. But under UNCLOS, only the coastal state can create artificial islands out of submerged areas. And Mischief Reef is a submerged area at high tide within our exclusive economic zone. It’s just 125 nautical miles from Palawan. And they’re probably reclaiming about at least 500 hectares out of Mischief Reef. And Mischief Reef is between Palawan and the Spratlys so our naval commanders are really worried that with an air base and a naval base in Mischief Reef, with thousands of Chinese troops garrisoned there, we will have a difficult time resupplying our troops in the islands that we hold, we occupy in the Spratlys. This is a big worry. Remember China seized Mischief Reef in 1995. And we were wondering what will China do with a fully submerged area at high tide. But looking back now it’s a very strategic move of China.

RESSA: This is also something that analysts around the world have looked at. China seems to have been moving very strategically, and Xi Jinping now seems even bent on pushing it forward. Some people have called it the salami slicing or the cabbage strategy. Can you explain that.

CARPIO: The Chinese have been undertaking a creeping invasion of the South China Sea. They are doing it slowly so it will not trigger a war. It will not trigger a retaliation from the US or from other powers in the region. So they are doing it incrementally, at a very slow pace before but now they’re doing it rapidly. But they’re doing it in such a way that it will not trigger a war. And they have been very successful in this. China has really moved its defense parameter from Hainan in 1946 to very close to us – Mischief Reef, Scarborough Shoal, and in Malaysia, in Luconia Shoal.

RESSA: What we’ve seen is that both Mischief Reef and Scarborough Shoal were tactical mistakes on the Filipinos side.

CARPIO: In 1995, when China seized Mischief Reef, China was not yet a member of UNCLOS. So we tried to publicize the seizure. We talked to ASEAN and because of that there was ASEAN declaration of conduct. That was the product. We wanted to follow the diplomatic track. And the ASEAN declaration of conduct should have produced a code of conduct to regulate the behavior of all the coastal sates so that there will be no shooting war.

RESSA: It hasn’t happened.

CARPIO: It hasn’t happened because China has been dragging its feet. So 1995, we couldn’t file a case because China was not yet a member. It ratified UNCLOS a year later. Now, we believe that we could talk to China and that China rise is peaceful as they have proclaimed. But then they seized again Scarborough Shoal. But Scarborough Shoal is not a submerged area. It’s above water at high tide and our Baselines Law specifically provides that Scarborough Shoal is part of Philippine territory. But then we had no navy, no air force to evict the Chinese. And our only response was to file a case because we realized that we cannot engage and defeat China militarily, economically, politically or diplomatically. The only forum where we can beat China, we can assert our rights, is the legal forum and that’s the UNCLOS tribunal. Because in the UNCLOS tribunal, warships, warplanes, atomic bombs don’t count. They just decide the case based on the law of the sea. And that is the forum where we are on equal footing with China, despite China’s military strength. When you go the court, in UNCLOS, we are on equal footing.

RESSA: So on the UN Convention on the Law of the Sea, why do you believe we have a strong case?

CARPIO: We have a strong case because under the law of the sea, a state can only claim maritime zones from their land. That means from your coast, you can claim 12 nautical miles, territorial sea, 200 nautical miles EEZ, and additional 150 nautical miles extended continental shelf if you can prove a natural prolongation. So at most 300 nautical miles from Hainan. Mischief Reef is over 600 nautical miles from Hainan. China is claiming in fact the entire South China Sea. Under UNCLOS, you cannot claim an entire sea. You have to base your maritime claims from your land. You measure it from your coast. Now the 9-dash lines are not measured from China’s coast. China doesn’t explain where, from how it drew those lines. China has given the coordinates for those lines. They just say, ‘Basta, we own it since 2000 years ago. That’s not UNCLOS. Because when UNLCOS was negotiated, many countries claimed 500 nautical miles, 600 nautical miles. Some claim only 200, some 12. So there had to be a compromise. A compromise was struck, and this is the reason why we have UNCLOS, because there was this big compromise. Everybody agreed that all coastal states will have 200 nautical miles Exclusive Economic Zone. China actively participated. China in fact led the group of 77 countries in certain issues. So China knew about this compromise. And that compromise meant that everybody gets 200 nautical miles, but they have to waive all other historical claims to all other waters. You are just entitled to 200. And you waive everything else so there will be stability in the oceans and sea of our planet. Now China is saying, ‘Yes, we are entitled to 200 nautical miles, but we also claim the entire South China Sea because of historic rights. I mean they cannot do that. They already all agreed all historic rights are extinguished when UNCLOS was signed, historic rights were extinguished and everybody had 200 nautical miles and a possibility for additional 150 nautical miles if you can prove the natural prolongation of your continental shelf. That’s all. You cannot claim beyond that, but China is claiming the entire South China Sea. It’s the only country in the world that’s claiming the entire South China Sea.

RESSA: In this legal case now, we are coming to a critical juncture in it. What is at stake? What happens if the Philippines wins or loses? Even the fact that China is not participating in it actively.

CARPIO: The issue here is whether the Philippines will keep 80% of Exclusive Economic Zone in the South China Sea or we lose it to China. 80% of our Exclusive Economic Zone means we will lose the entire Reed Bank if we lose this case to China, and maybe more than half of Malampaya will be part of the 9-dash lines, encroached by the 9-dash lines. We will lose Scarborough Shoal, the waters beyond the territorial sea. We will lose Macclesfield Bank. These are our traditional fishing grounds. If we lose 80% of our EEZ in the South China Sea, that means we lose 80% of the fish we catch annually in the South China Sea. So we lose fish, we lose our gas resources, and remember, Malampaya will run out of gas in 10 years. We should develop the Reed Bank. But the Reed Bank is totally encroached. Every time we send a survey ship there to do surveying or drilling, the Coast Guard of China will harass our survey ships. That’s why we were not able to do the survey and drilling.

RESSA: It’s massive economic impact on us. China though has not participated in this case.

CARPIO: China said that they will not participate, but they submitted a position paper before the tribunal. China said we will not participate but here is our position. And they basically questioned the jurisdiction of the tribunal saying that they have made a reservation not to be subject to compulsory arbitration when it comes to sea boundary delimitation. But if you go to that exact provision of UNCLOS on sea boundary delimitation, it refers to overlapping territorial sea – overlapping Exclusive Economic Zones, overlapping continental shelf. Now, the waters enclosed by 9-dash lines, do not represent territorial sea. We don’t know from where the lines are drawn. The waters are not EEZ waters because we don’t know from where the lines are drawn. Also the waters are not continental shelf waters. In fact China said the waters enclosed by 9-dash lines are sui generis – one of a kind – which means they are not territorial. The reservation under UNCLOS where a state can declare that it doesn’t want to be subjected to compulsory arbitration refers only to disputes on sea boundary delimitations specifically on articles on territorial sea, overlapping territorial sea, the articles on overlapping EEZ, and the articles overlapping continental shelf. So China cannot invoke this because the situation of China is different. The waters that they claim encroach and prevail on our EEZ are not EEZ waters. They are not territorial waters, not continental shelf waters.

RESSA: If the Philippines wins this case, who would impose it?

CARPIO: The UNCLOS, which all the disputed states ratified including the Philippines and China, says that the decision of the tribunal shall be final and binding on the parties. And the parties are expected to comply with the ruling in good faith. That’s the international law. But China said that they will not comply. They will ignore any adverse decision against China. Assuming that the 9-dash lines are struck down by the tribunal, what will the Philippines do? We have to go back to precedence. In the case of Nicaragua vs the United States, Nicaragua sued the US before the International Court of Justice (ICJ) because the US at that time mined the waters of Nicaragua, dropped mines there, supplied arms to the contras in that civil war. Nicaragua sued the US for violating its territorial integrity. The US said to the International Court of justice, the International Court of Justice has no jurisdiction over this and the US will not participate and will ignore any ruling. The ICJ, the International Court of Justice, said we have jurisdiction. And we will make a ruling. And they ruled that the US violated the territorial integrity of Nicaragua, violated international law. Eventually the ICJ said that the US must pay damages of US$ 30 million. So Nicaragua won. The US refused to honor, to comply. Nicaragua went to the security council because it’s the security council that will enforce the decision of the ICJ. Of course the US is a permanent member, it vetoed it. So Nicaragua went to the General Assembly, sponsored a resolution that US must comply with the international law, that the country that claims to be the No. 1 exponent of the rule of law must comply with international law, comply with the ruling of the International Court of Justice. The resolution was put to vote. Nicaragua won and the US lost but it had a big minority that supported it. So after several years, at the last resolution, only one country supported the US – Israel. So it was costing the US tremendously in terms of reputation. It claims to be the exponent, the No. 1 advocate of the rule of law and yet it was glaringly in violation of international law. The world was telling the US, ‘You violate the international law.’ Eventually there was compliance, in a way that saved the face of the US. The US paid and Nicaragua was happy. Once the threshold is reached, when they feel it will cost them more not to comply than to comply, then they will comply.

RESSA: Over an average amount of time? How much will you say?

CARPIO: Well, it could take maybe 10 years. But we should still ourselves that this will be a long struggle.

RESSA: China itself though is also using this issue. It’s stirring up nationalistic sentiments. There’s new leader in China. How do you see this playing into the mix, and whether or not China cares about international opinion?

CARPIO: We have to understand it. All the generals, admirals, the pulit buro members, all the diplomats of China, all their bureaucrats, were taught since they entered elementary school, up to college, that they own the South China Sea under the 9-dash line. So we have to change that mindset. And we need a ruling from an impartial international tribunal [that is] authorized, even allowed by China because China is a signatory to make ruling. If there is a ruling, we will use that ruling to ask the world to join us in convincing the Chinese people that they cannot do that. I think eventually they’ll listen. But it will take time. This is a long term struggle. I call it an inter-generational struggle. We, this generation, must lay down the foundation. We must get a ruling striking down the 9-dash lines and the next generation will campaign with the world to convince China.

RESSA: Like it or not though, this time around has a little bit, it seems to me at least, to have a little more at stake because you have China and the United States. The two world powers, two shifting geopolitical powers. The likelihood of how this will play out and accidents, for example. What is the likelihood that it could – before the legal process reaches some kind of conclusion – flare into an open conflict?

CARPIO: As far as the Philippines is concerned, we know our limitations. We cannot afford to engage China in a war or even in a skirmish.

RESSA: But the Philippines brought the United States in it.

CARPIO: Yes. With respect to the US and China, they have what we call… they have adapted the Code for Unintended Encounters in the Sea – the CUES. That has worked. And both China and the US know that a war in the South China Sea is not to their benefit. It’s not worth a war for either of them. But it’s a worth for the US to prove that there is freedom of navigation in the South China Sea. The US does not take sides in territorial disputes, but there is another dispute, the maritime dispute. And here, our position converges with the US position that a nation cannot claim an entire sea.

RESSA: So you don’t see a potential in military conflict?

CARPIO: Very low, very minimal.

RESSA: Even if it’s accident?

CARPIO: If there’s an accident, they know how to control it.

RESSA: Some analysts have said that the Philippines fell into a trap, a strategic trap by China, and that the US is close to doing. China essentially drum rolls and then some kind of military action is taken. In the case of Scarborough shoal, a navy cutter was brought in. Then after that, China comes in with overwhelming force and then claims the entire thing because you’re the aggressor first.

CARPIO: If you look at it as tactical action, China is actually waiting for other countries to make a little mistake and then counter with a huge reply and grab the territory. But that is a tactical action. If you look at the long term strategic action of China, you know that they are out to control the entire South China Sea. If you look at their action since 1946, they have moved. Whether we like it or not, that is the direction of China.

RESSA: The Aquino Administration seems to be the only one who brought this case to court, international court. 2016 elections there are 3 countries affected that will have elections – Philippines, the United States and Taiwan. Set to win in Taiwan is somebody who may exacerbate Taiwan-China relations. How do you see the politics impacting this area?

CARPIO: The next president will take over in June of 2016.

RESSA: The one country you haven’t mentioned yet is Japan. The Diaoyu islands.

CARPIO: Japan is also for freedom of navigation, because they export and import a lot. And all their imports and exports passes through, almost all.

RESSA: So on the big picture, you see all the nations aligning against China?

CARPIO: All the nations aligning against China because if China is able to claim the entire sea, almost the entire South China Sea, what will prevent other countries, other naval powers from claiming the entire seas facing their coast? Then it will be the rule of naval canon, no longer the rule of law. I don’t think we want that. I don’t think any other country wants that.

RESSA: Thank you so much. We’ve speaking with the Senior Justice of the Philippine Supreme Court Antonio Carpio on the 9-dash line, the upcoming decision at the South China Sea. I’m Maria Reesa. Thank you for joining us. – Rappler.com