West Philippine Sea

[ANALYSIS] If China thinks its title is strong, then submit to arbitration

Antonio T. Carpio

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[ANALYSIS] If China thinks its title is strong, then submit to arbitration
A state that knows its title is strong will be willing to submit to arbitration while a state that knows its title is weak will run away from arbitration

Last October 9, the Chinese Foreign Ministry issued a statement that Ayungin Shoal in the Spratlys has been “China’s territory since ancient times.” This is utterly false. 

First, Ayungin Shoal is not a territory since as ruled by the Arbitral Tribunal in its Award of July 12, 2016, Ayungin Shoal is a low-tide elevation beyond the territorial sea of any high-tide feature. Ayungin Shoal falls within the exclusive economic zone of the Philippines since it is within 200 nautical miles from the archipelagic baselines of the Philippines and beyond 200 nautical miles from the baselines of any other state. It is basic in international law that such a low-tide elevation is not a territory capable of being subject to sovereignty. 

Second, all the ancient maps of China, as published in the Atlas of Ancient Maps in China by the People’s Republic of China, show that the southernmost territory of China during all the Chinese dynasties was Hainan Island. In 1932, when France occupied the Paracels, China officially protested on the ground that the Paracels formed the “southernmost territory” of China. The Paracels are more than 400 nautical miles from the Spratlys. In 1943, China officially published the China Handbook, which declared that the southernmost territory of China was Triton Island in the Paracels. It was only in its revised 1947 China Handbook that China first claimed the Spratlys, but at the same time China admitted that the Spratlys were also claimed by the Philippines and the French in Indochina. 

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Third, the Spratlys have appeared as part of Philippine territory since the 1734 Murillo Velarde map, the first official map of Philippine territory during the Spanish regime. The 1808 and the 1875 Carta General del Archipielago Filipino, both official maps of Philippine territory during the Spanish regime, show that the Spratlys formed part of Philippine territory.

The United States adopted and reissued the 1875 Carta General del Archipielago Filipino four times in 1898, 1900, 1901, and 1902. In the leading 1928 Islas Palmas case, the United States submitted the 1875 Carta General del Archipielago Filipino as an official Spanish and American map of Philippine territory at the time of the signing of the 1898 Treaty of Paris. 

Fourth, China submitted to the Arbitral Tribunal at The Hague a Position Paper stating that Philippine territory is defined by three treaties – the 1898 Treaty of Paris, the 1900 Treaty of Washington, and the 1930 Treaty between the United Kingdom and the United States. China claims that under these three treaties, all the island territories of the Philippines are found only within the 1898 Treaty of Paris lines, and since the Spratlys and Scarborough Shoal are outside the Treaty of Paris lines, the Spratlys and Scarborough Shoal do not form part of Philippine territory. 

China is gravely mistaken.

In the 1900 Treaty of Washington, Spain expressly ceded to the United States “any and all islands belonging to the Philippine Archipelago, lying outside the lines” of the Treaty of Paris. Those who think that Philippine territory is limited to the islands lying within the Treaty of Paris lines have neither read the 1900 Treaty of Washington nor the correspondences between Spain and the United States that led to the 1900 Treaty of Washington. In any event, China is bound by its judicial admission in its Position Paper that Philippine territory is also defined by the 1900 Treaty of Washington, which expressly includes as Philippine territory all islands belonging to the Philippine archipelago lying outside the Treaty of Paris lines. 

Fifth, under the doctrine of Uti Possidetis Juris, a principle of international law regulating the boundaries of former colonies that became independent, the treaties entered into by the colonial powers defining the international boundaries of their former colonies must be respected by all states.

Thus, international law mandates that the three treaties defining Philippine territory, including the 1900 Treaty of Washington, must be respected by all states. 

If China is confident of its legal title to the Spratlys and Scarborough Shoal, then it should submit the territorial dispute with the Philippines to voluntary arbitration before the International Court of Justice. This is in accord with the UN Charter which mandates the peaceful settlement of disputes between states through negotiation, mediation, or arbitration, and outlaws the threat or use of force in settling such dispute.

A state that knows its title is strong will be willing to submit to arbitration while a state that knows its title is weak will run away from arbitration. – Rappler.com

Antonio Carpio is a retired senior associate justice of the Philippine Supreme Court.

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  1. ET

    Thanks to former Supreme Court Justice Antonio Carpio’s enlightening and inspiring article, “If China thinks its title is strong, then submit to arbitration.” Indeed, why does China not submit its claim over the Ayungin Shoal to arbitration under the International Court of Justice? I believe that its claim is weak; otherwise, it could have submitted such a claim for arbitration under such a court. For now, it resorted to harassment and bullying; later on, it might resort to the Court of Might.

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