This is AI generated summarization, which may have errors. For context, always refer to the full article.
Note: Remarks delivered by retired Supreme Court Justice Antonio T. Carpio during the inauguration last November 10, 2023 of the ANU Philippines Institute. ANU is the Australia National University at Canberra, Australia.
The South China Sea dispute is the most complicated dispute in the world today. The dispute involves both a maritime dispute and a territorial dispute.
The core of the South China Sea dispute is China’s nine, now ten-dash line, which encloses about 85.7% of the South China Sea. China’s ten-dash line has a dual purpose, as a maritime claim and as a territorial claim.
As a maritime claim, the ten-dash line is a claim to the waters, the living resources in the water column, and the mineral resources in the seabed of the maritime areas enclosed by the ten-dash line beyond the territorial sea. China’s maritime claim under its ten-dash line encroaches on large areas of the exclusive economic zones (EEZs) and extended continental shelves (ECSs) of Vietnam, the Philippines, Malaysia, Brunei and Indonesia.
The maritime dispute is governed primarily by the 1982 UN Convention on the Law of the Sea or UNCLOS to which all the disputant states in the South China Sea dispute are parties. UNCLOS provides for a compulsory dispute settlement mechanism for maritime disputes. There are six coastal states involved in the maritime dispute: China, Vietnam, the Philippines, Malaysia, Brunei and Indonesia.
As a territorial claim, the ten-dash line is a claim to all the geologic features above water at high tide which are subject to sovereignty and are entitled to territorial seas. This claim includes all the high-tide features enclosed by the ten dashes. The disputed high-tide geologic features are situated in the Paracels, the Spratlys and Scarborough Shoal.
The territorial dispute is governed by general principles of international law. There are five states involved in the territorial dispute: China, Vietnam, the Philippines, Malaysia and Brunei. China claims the entire Spratlys, as well as Scarborough Shoal, which is located far from the Spratlys, off the coast of Luzon. Vietnam also claims the entire Spratlys except for Louisa Reef. The Philippines claims Scarborough Shoal and most of the Spratlys, notably with the exception of Spratly Island and Swallow Reef. Malaysia claims Swallow Reef and a few other reefs and shoals near Swallow Reef. Brunei claims Louisa Reef which is also claimed by China. Louisa Reef is situated off the coast of Brunei. Indonesia has no territorial claim in the Spratlys.
In the Paracels, China and Vietnam are the only two claimant states in the territorial dispute.
There is no treaty or convention requiring the compulsory settlement of the territorial dispute by arbitration. Unless the disputant states voluntarily submit the territorial dispute to arbitration, no tribunal can acquire jurisdiction over the territorial dispute.
The overarching law governing the South China dispute
The overarching law governing the South China Sea dispute, both the maritime and territorial disputes, is the 1945 United Nations Charter. First, the UN Charter expressly mandates that all disputes between or among states shall be settled only by peaceful means, by negotiation, mediation, arbitration or judicial settlement. Second, the UN Charter expressly outlaws the threat or use of force in settling disputes between or among states.
Before the 1945 UN Charter, the rule in international was “Might Is Right.” A country can settle a territorial or maritime dispute with its neighboring state by waging war, and if it wins the war, then it can legitimately annex its neighbor’s territory or maritime zone. If it loses the war, then what it did was illegal. This brutal rule of law spawned constant wars, culminating in two world wars that devastated the world. Vowing to end the scourge of war, the countries of the world enshrined in the UN Charter the fundamental principle mandating that all disputes between or among states shall be settled only by peaceful means, outlawing the threat or use of force in settling such disputes.
This fundamental principle is expressly reiterated in UNCLOS, which went a step further by providing for a compulsory dispute settlement mechanism for certain maritime disputes between or among states. The maritime dispute in the South China Sea is governed by UNCLOS.
There is, however, no compulsory dispute settlement for territorial disputes, unless the states agree in a treaty or convention to submit their territorial disputes to compulsory arbitration. In South America, there is the Pact of Bogota which requires all disputes, maritime or territorial, between or among its member-states, to be submitted to compulsory arbitration. In Asia, there is no treaty like the Pact of Bogota.
The July 12, 2016 arbitral award between the Philippines and China
The Philippines did not send its Navy or marines to retake Scarborough Shoal. Instead, following the rule of law, the Philippines sent lawyers to The Hague to question before an UNCLOS tribunal the compatibility of China’s nine, now ten-dash line, with UNCLOS. The Philippines went for the jugular and assailed China’s prior seizure of all low-tide features in the Spratlys that fell within the Philippines’ EEZ in the South China Sea.
Under UNCLOS, low-tide features, which are below water at high tide, are not territory and if situated beyond the territorial sea, form part of the EEZ of the adjacent coastal state. In the Spratlys, most of the low-tide features beyond the territorial sea would form part of the 200 nautical mile EEZ of the Philippines. Thus, in the arbitration at The Hague the Philippines put at issue the validity of China’s nine-dash line, which encroaches on 80 percent of the EEZ of the Philippines in the South China Sea.
In its landmark July 12, 2016 Arbitral Award, the Arbitral Tribunal made the following major rulings:
First, China’s nine-dash line, allegedly based on Chinese ownership of the South China Sea dating back 2000 years ago, cannot serve as legal basis to claim maritime zones which can be claimed only in accordance with UNCLOS. Under UNCLOS the maximum maritime zone that a coastal state can claim is 350 nautical miles, that is, 200 nautical miles of EEZ plus 150 nautical miles of ECS, measured from baselines along the coast of a state. There are no overlapping EEZs between the Philippines and China. All historical claims to maritime zones beyond the territorial sea have been extinguished upon the effectivity of UNCLOS.
Second, none of the islands in the Spratlys generates an EEZ since none of them is habitable, that is, none of them is capable of sustaining a stable community of people based on the island’s own natural resources. Thus, all the high-tide features in the Spratlys are entitled only to a 12 nautical mile territorial sea.
Third, Mischief Reef and Second Thomas Shoal are low-tide features beyond the territorial sea of any high-tide feature and thus form part of the EEZ of the Philippines, being within 200 nautical miles from the archipelagic baselines of the Philippines.
Fourth, Subi Reef, a low-tide feature, is within the territorial sea of Pag-Asa Island, at 37 hectares the largest feature occupied by the Philippines in the Spratlys. The 12-nautical mile territorial sea between Pag-Asa Island and Subi Reef is measured from a low-tide rock about 2 nautical miles from Pag-Asa Island. This applies the UNCLOS provision that the 12-nautical mile territorial sea can be measured from a low-tide feature lying within 12 nautical miles from the baseline of the land territory. In effect, a low-tide feature within 12 nautical miles from the baseline extends the territorial sea since the low-tide feature becomes the actual baseline in measuring the 12-nautical mile territorial sea.
Fifth, Reed Bank, which is rich in gas, is a fully submerged area within Philippine EEZ since it lies within 200 nautical miles from the archipelagic baselines of the Philippines.
And sixth, Scarborough Shoal, off the coast of Luzon, is a non-habitable high-tide feature entitled only to a 12 nautical mile territorial sea. The Arbitral Tribunal did not rule what state has sovereignty over Scarborough Shoal since the Arbitral Tribunal had no jurisdiction to rule on the sovereignty issue. However, the Tribunal ruled that the territorial sea of Scarborough Shoal is a traditional common fishing ground of Filipino, Chinese and Vietnamese fishermen since the existence of traditional common fishing grounds is a maritime issue governed by UNCLOS.
In terms of fishing rights, China actually scored a major win in the July 12, 2016 Arbitral Award. China has by far the largest fishing fleet in the world. The ruling of the Arbitral Tribunal defining a habitable island as one that can sustain a stable community of people based on the natural resources of the island itself now prevents states from claiming expansive 200-nautical mile exclusive economic zones for barren, uninhabitable islands. This has considerably expanded the high seas all over the world. In the high seas, there is freedom of fishing for all states and the huge fishing fleets of China have now considerably more maritime areas as fishing grounds.
The July 12, 2016 Arbitral Award has now gained more support from other countries. Aside from the European Union, the US, Canada, Australia and Japan, India and South Korea have recently voiced their support for the Arbitral Award. The Arbitral Award protects the EEZs and ECSs of small coastal states from being encroached by their bigger, militarily stronger neighboring states. Once small coastal states, like the Pacific Island states, fully realize this, they should be the first to support the Arbitral Award. What grants these small coastal states huge maritime zones is UNCLOS and their national interest logically lies in preserving UNCLOS and preventing its violation and eventual collapse.
There are now five nuclear-armed, militarily stronger states that have lost in arbitration with non-nuclear armed, militarily weaker states. In 1986 the US lost to Nicaragua before the International Court of Justice for supplying arms to the Contras and for laying mines in the territorial sea of Nicaragua. The ICJ ordered the US to pay damages to Nicaragua. For four years the US refused to recognize the decision of the ICJ and refused to pay damages to Nicaragua. Eventually, the US agreed to grant economic aid to Nicaragua in lieu of damages. Granting economic aid connotes generosity while paying damages connotes admission of wrongdoing. Nicaragua accepted the amount of economic aid and promptly caused the dismissal of its ICJ case against the US. In effect, the US complied with the decision of the ICJ since Nicaragua accepted the arrangement to its satisfaction.
Russia, a nuclear-armed state, lost to the Netherlands in the Arctic Sunrise arbitration before an UNCLOS tribunal. At first Russia refused to recognize the 2017 award which required Russia to pay damages to the shipowner and crew of the Arctic Sunrise. However, after two years Russia reached an agreement with the Netherlands for a reduction of the damages. Russia paid the reduced damages, effectively complying with the arbitral award to the satisfaction of the Netherlands.
India, a nuclear-armed state, lost to Bangladesh in the Bay of Bengal arbitration. When the award was issued in 2014 by an UNCLOS tribunal, India immediately accepted the award and announced its compliance with the award.
The United Kingdom, a nuclear-armed state, lost to Mauritius in the 2019 legal opinion issued by the ICJ on the issue of the Chagos archipelago. The UK immediately accepted the ruling and announced its readiness to comply with the ruling.
Seven years have passed since the July 12, 2016 Arbitral Award in the South China Sea Arbitration and China still refuses to comply with the award. Today, China remains the only nuclear-armed state that refuses to comply with an arbitral award of an international tribunal under a convention to which it is a party.
Thus, the rule is militarily powerful, nuclear armed states that lose in arbitration proceedings with non-nuclear armed states actually comply with the arbitral awards, with the sole glaring exception of China which may now be considered a rogue state under international law.
Nevertheless, the July 12, 2016 Arbitral Award is being enforced in other ways by third parties. The US and its allies regularly conduct freedom of navigation and overflight operations in the South China Sea, citing the Arbitral Award which invalidated China’s nine-dash line. In all EEZs and high seas of the world, there is freedom of navigation and overflight, including the right to conduct naval and aerial drills. Thus, every time the US and its allies conduct freedom of navigation and overflight operations in the West Philippine Sea, they do so because they are in the EEZ of the Philippines. This effectively enforces the Arbitral Award.
Last August 2023, China released its new standard map of China. In this new map China added a tenth dash on the eastern side of Taiwan. The legend of the new map designates the 10 dashes as China’s “International boundary.” This means that China now considers all the waters enclosed by the 10 dashes as China’s national territory.
Prior to this new map, China was vague as to the meaning of the dashes, whether the dashes were a claim to the waters and their resources or a claim to territory. Now, China is unequivocal – the dashes are a claim to territory. Thus, China is claiming as its national territory vast areas of the EEZs and ECSs of its neighboring coastal states, as well as claiming as its national territory the entire high seas of the South China Sea.
The world has not seen such a mind-boggling maritime claim since Portugal, Spain, and England claimed seas near and far from their shores in the 15th, 16th and 17th centuries. This expansive claim of China is a direct attack on the foundation of the Law of the Sea – that the waters beyond the territorial sea are the common heritage of mankind. UNCLOS has reserved for the adjacent coastal state the economic exploitation of the natural resources found in waters beyond the territorial sea up to a certain area, but the waters beyond the territorial sea have remained part of the global commons where there is freedom of navigation and overflight. Now China is claiming as its national territory almost all the global commons in the South China Sea.
Recently, the United Nations opened for ratification the High Seas Treaty. With China’s nine, now 10-dash line map, China is refusing to allow the High Seas Treaty to apply to the high seas of the South China Sea. China’s 10-dash line map not only encroaches on vast areas of the EEZs and ECSs of neighboring coastal states, it also deprives all countries of the world their lawful right to the global commons in the South China Sea. Under UNCLOS, the fish in the high seas, and the mineral resources beyond the ECSs of adjacent coastal states, belong to all mankind.
Applicable doctrines in the territorial dispute in the South China sea
The territorial disputes in the South China Sea, particularly in the Spratlys and Scarborough Shoal, are governed by several doctrines of international law. These doctrines allow us to determine what state has the superior claim in the territorial disputes.
The most important doctrine is that of Uti Possidetis Juris, which in English means as you possess under the law. Under this doctrine, the territorial boundaries agreed upon by the colonial powers in their colonies in Africa, South America, Asia and elsewhere in the world, at the time the colonies achieved their independence under the decolonization process, must be respected by all states. The reason is to prevent border wars between states that were former colonies. The boundaries agreed upon by the colonial powers may be arbitrary at times because they are often drawn in straight lines and people of the same tribe may be living on both sides of the boundary. Despite this, the boundaries must be respected for otherwise borders wars will erupt without end in these former colonies.
In the case of the Philippines, its territory is defined in three treaties entered into by the colonial powers. First is the 1898 Treaty of Paris wherein Spain ceded to the United States all islands of the Philippine archipelago lying within the lines of the Treaty of Paris. Second is the 1900 Treaty of Washington wherein Spain clarified that it also ceded to the United States all islands of the Philippine archipelago lying outside the lines of the Treaty of Paris. And third is the 1930 Treaty between the United States and Great Britain demarcating the boundary between British North Borneo and Southern Philippines. These three treaties entered into by the colonial powers defining Philippine territory must be respected by all states under the Uti Possidetis Juris doctrine.
The second doctrine, related to Uti Possidetis Juris, is the doctrine that a colonial power cannot detach or abandon the territory of its former colony to remove part of the colony’s territory when it gains independence. This doctrine was enunciated by the International Court of Justice in its opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965. Thus, the United States, as the last colonial power of the Philippines, could not detach or abandon any of the territory of the Philippines under the three treaties defining Philippine territory.
The third doctrine is the doctrine of inter-temporal law, which holds that the rights under a treaty must be evaluated in light of the law contemporary with the treaty, not with reference to the law in force at the time the dispute arose or at the time the dispute is decided. Thus, the term “archipelago” must be interpreted as it was understood in the three treaties defining Philippine territory, not as the term “archipelago” is now defined in the 1982 UNCLOS which requires a water to land ratio for the recognition of an archipelago.
The fourth doctrine is the doctrine of the “critical date” in territorial disputes. The “critical date” is the date when the opposing claims crystallize and the issues are joined between or among the states claiming sovereignty over the disputed territory. The validity of the claims will be decided based on the law and the facts immediately before this “critical date.”
From the “critical date” onwards, activities of the claimant states to enhance their claim, like bringing in inhabitants or building military fortifications, have no legal relevance or value in the resolution of the territorial dispute. The rationale for this policy of the law is to prevent the claimant states from aggravating the dispute and disturbing the peace and stability in the region.
In the Spratlys territorial dispute, the “critical date” is 1947 when China officially claimed the Spratlys but at the same time expressly acknowledged that the Philippines and Indochina also claimed the Spratlys. This was the date when the opposing claims crystallized and the issues were joined.
The fifth doctrine involves the completion of acquisition of sovereignty over terra nullius, which means land claimed by no state. Under the 1928 Islas Palmas case, discovery alone of a territory that is terra nullius does not give a complete title. The discovery must be followed by a continuous and peaceful display of sovereignty over the territory if the territory is inhabited.
In the 1931 Clipperton Island case, the proclamation of sovereignty over terra nullius, even without physical occupation, gives a complete title if the territory is uninhabited or uninhabitable. In the 1933 Eastern Greenland case, inaccessible areas of an island need not be occupied for sovereignty to attach to the entire island and occupation of the habitable areas is sufficient.
In the Spratlys, as ruled by the Arbitral Tribunal, all the islands are not habitable based on the natural resources of the islands alone. The Arbitral Tribunal found that there is no record of human habitation in the past in any of the islands of the Spratlys. Thus, to acquire and perfect a title of sovereignty over the Spratlys, a state does not have to physically occupy any of the islands. A state’s declaration and publication of a claim of sovereignty, in the absence of claims by other states, is sufficient to vest complete title of sovereignty over the islands in the Spratlys.
The sixth doctrine involves the legal value of maps. The general rule is that maps cannot establish title to territory. However, maps attached to a treaty can establish title to territory as between or among the state-parties to the treaty. Moreover, in the Pedra Blanca arbitration between Malaysia and Singapore, the International Court of Justice ruled in 2008 that maps unilaterally produced and disseminated by a state, even if not attached to a treaty, can bind the producing state if the map is adverse to its interest. In short, an admission by a party against its own interest is binding on that party. The People’s Republic of China has produced and disseminated the three-volume Atlas of Ancient Maps in China. All these ancient maps show that throughout the Chinese dynasties, the “southernmost” territory of China was Hainan Island. Thus, these ancient maps of China are binding on China.
The seventh doctrine is that of estoppel, which prevents a state from asserting something contrary to what the state has previously asserted or admitted. The Qing dynasty, the last Chinese dynasty, ended in 1912. Since then China became a republic, and had four constitutions from 1914 to 1947. In all of these four constitutions of China, the territory of China was defined as the territory of the Qing dynasty since it was during the Qing dynasty that the largest expansion of Chinese territory occurred. In the South China Sea, however, the territory of the Qing dynasty, and of all the dynasties before it, never went farther south than Hainan Island. Under the doctrine of estoppel, China is bound by the definition of Chinese territory in these four constitutions of China.
In 1932, China officially protested the French occupation of the Paracels. In its Note Verbale to France, China claimed the Paracels as its “southernmost” territory. The Paracels are about 405 nautical miles from the Spratlys and 326 nautical miles from Scarborough Shoal. From the Paracels, you have to cross the high seas of the South China Sea to reach the Spratlys and Scarborough Shoal. Under the doctrine of estoppel, China is bound by its 1932 official declaration that its “southernmost” territory are the Paracels.
In 1943 China officially published its China Handbook which, among others, defined the territory of China. In this 1943 China Handbook, China claimed that its southernmost territory is Triton Island of the Paracels. Triton Island is the island of the Paracels closest to Vietnam. Thus, in 1943 China still had not claimed the Spratlys or Scarborough Shoal. Under the doctrine of estoppel, China is bound by its definition Chinese territory in its 1943 China Handbook.
In 1980 China published in Beijing Review, an official publication of the Chinese Ministry of Foreign Affairs, an article that in 1279, during the Yuan dynasty, Gou Shoujing built his sole astronomical observatory in Nanhai in the Xisha islands or what is internationally known as the Paracels. Nanhai, which means South Sea, is China’s traditional name for the South China Sea. The Portuguese explorers gave the name South China Sea to distinguish it from the East China Sea. According to this Beijing Review article, Gou Shoujing’s observatory in the Paracels showed that the Paracels were already Chinese territory in 1279 during the Yuan dynasty. Thus, China’s claim to the Paracels predated that of Vietnam’s.
However, in the website of the Chinese embassy in Manila, China now claims that Gou Shoujing built his sole Nanhai or South Sea observatory on Scarborough Shoal, to prove that Scarborough Shoal was already Chinese territory in 1279 during the Yuan dynasty. Under the doctrine of estoppel, China cannot now claim that Gou Shoujing built his sole Nanhai or South Sea observatory on Scarborough Shoal, about 326 nautical miles from the Paracels, since China already previously asserted that Gou Shoujing built his observatory in the Xisha islands or the Paracels.
The Chinese Foreign Ministry has repeatedly asserted that Philippine territory is regulated by three treaties: the 1898 Treaty of Paris, the 1900 Treaty of Washington, and the 1930 Treaty demarcating the boundary between British North Borneo and Southern Philippines. This assertion is found in the website of the Chinese Foreign Ministry. Chinese Foreign Minister Wang Yi also repeated this assertion in his February 2016 speech at CSIS in Washington D.C. before foreign diplomats from all over the world. Under the doctrine of estoppel, China is now bound by these assertions. In the South China Sea Arbitration at The Hague, China submitted a Position Paper repeating this assertion, making this assertion a judicial admission that is binding on China.
All this means that China is now bound by the 1900 Treaty of Washington which expressly states that Philippine territory includes “any and all islands belonging to the Philippine archipelago lying outside” the lines of the Treaty of Paris. Thus, China has extrajudicially and judicially admitted that Philippine territory is not limited to the islands enclosed by the lines of the Treaty of Paris. All these years, up to this day, China has been insisting that Philippine territory under the three treaties is limited to the islands lying within the lines of the Treaty of Paris. Apparently, Chinese Foreign Ministry officials have not read the short, single article contained in the 1900 Treaty of Washington.
The question arises: what is the frame of reference when the 1900 Treaty of Washington states that Spain also ceded to the US “any and all islands belonging to the Philippine archipelago lying outside” the lines of the Treaty of Paris? What are these islands lying outside the lines of the Treaty of Paris?
In the Islas Palmas case, the US stated in its Memorandum that the 1875 Carta General del Archipielago Filipino, the last official map of Philippine territory issued by the Spanish Government, was “both an American official and a Spanish official map” of Philippine territory. The US adopted and reissued this 1875 Spanish map in four editions from 1898 to 1902. Thus, this 1875 map is where we can find all the islands belonging to the Philippine archipelago lying outside the lines of the Treaty of Paris. This 1875 map shows that the Spratlys and Scarborough Shoal are part of Philippine territory.
China’s new coast guard law
Last January 2021, China amended its coast guard law to state that the Chinese coast guard “shall have the power to take all necessary measures including the use of weapons” to enforce China’s claim to its “jurisdictional waters” under its nine, now ten-dash line. This means that Chinese coast guard vessels can fire their weapons on foreign vessels that fish, survey or drill for oil or gas within waters enclosed by China’s ten-dash line, even beyond China’s maritime zones as recognized under UNCLOS. Chinese coast guard vessels can also forcibly dismantle structures erected on geologic features occupied by other states within the ten-dash line.
In essence, China’s new coast guard law authorizes its coast guard to use force to settle its maritime and territorial disputes with five ASEAN coastal states whose EEZs and island territories fall within China’s expansive ten-dash line. This is a blatant violation of the UN Charter and UNCLOS which both prohibit the threat or use of force to settle territorial or maritime disputes between or among states.
Indeed, the mere enactment of China’s new coast guard law is, in itself, a threat of force against five ASEAN coastal states whose EEZs and island territories are claimed by China under its expansive ten-dash line. Thus, the enactment of China’s new coast guard law is per se a clear violation of the fundamental principle enshrined in the UN Charter mandating the peaceful settlement of disputes between or among states and outlawing the threat or use of force to settle such disputes.
China’s new coast guard law, and its enforcement by China’s coast guard, seek to normalize the threat and use of force to settle disputes between or among states. This will overturn the fundamental principle of the UN Charter mandating the peaceful settlement of disputes between or among states and outlawing the threat or use of force to settle such disputes.
Just last week, October 29, 2023, a Canadian military helicopter flying either in the high seas or in the EEZ of a coastal state in the South China Sea, was closely buzzed and fired upon with flares in front of its path by Chinese fighter jets for operating within what China claims is its territorial airspace. It is clear, however, that the Canadian helicopter, which was attached to the Canadian frigate HMCS Ottawa, was outside the territorial sea and airspace of China. Apparently, China considers the high seas and the EEZs of other states in the South China Sea as part of China’s national territory under its ten-dash line.
Assault on rules-based international order: Ukraine and the South China Sea
China’s new coast guard law, together with Russia’s invasion of Ukraine, constitutes a direct frontal assault on the fundamental principle of the UN Charter mandating the peaceful settlement of disputes between or among states and outlawing the threat or use of force to settle such disputes. China’s new coast guard law constitutes a threat of force, while Russia’s invasion of Ukraine constitutes actual use of force.
If China succeeds in its threat of force in the South China Sea, it will mean the collapse of UNCLOS and a severe blow to the UN Charter. If Russia succeeds in its invasion of Ukraine and the annexation of Ukrainian territory, it will mean the collapse of the UN Charter. China’s threat of force and Russia’s use of force are both aimed at overturning the fundamental principle of the UN Charter mandating the peaceful settlement of disputes and outlawing the threat or use of force. If they succeed, it will bring back the world to the Might Is Right Era, where war was a legitimate means of settling disputes between or among states, and armed invasion was a legitimate means of annexing the territory or maritime zones of another state.
The world must unite to oppose this blatant attempt by China and Russia to overturn the fundamental principle of the UN Charter that has prevented a third world war from senselessly putting an end to human civilization as we know it today. What is at stake in the South China Sea dispute is not only the exclusive economic zone of the Philippines, but also, and more importantly, the preservation of UNCLOS as the constitution of the seas that ensures peace and stability in all the oceans of our world.
In the same way, what is at stake in Ukraine is not only the territory of Ukraine in the Donbass and Crimea, but also, and more importantly, the preservation of the UN Charter as the fundamental law prohibiting the use of force in settling disputes between or among states and preventing, as the Preamble of the UN Charter states, the scourge of a third, and probably final, world war.
Conclusion and recommendation
In conclusion, I recommend that all claimant states to the territorial disputes in the Spratlys – China, Vietnam, the Philippines, Malaysia and Brunei – should submit their territorial disputes for voluntary arbitration by the International Court of Justice. Likewise, I recommend that China and the Philippines should submit their territorial dispute over Scarborough Shoal for voluntary arbitration by the ICJ. This will finally settle by peaceful means, as mandated by the UN Charter, the territorial disputes in the Spratlys and Scarborough Shoal.
If the disputant states are not willing to submit the territorial disputes to arbitration, the Philippines can just wait for sea level rise to submerge most, if not all, of these islands by the end of this century. Then the submerged areas will form part of Philippine EEZ if within 200 nautical miles from the archipelagic baselines of the Philippines. Beyond this Philippine EEZ, submerged areas will form part of Philippine ECS up to the median line with the overlapping ECS of the opposite state. That will be the deus ex machina solution to the most complicated territorial dispute in the world today. – Rappler.com
Antonio T. Carpio is a retired senior associate justice of the Philippine Supreme Court.
The views expressed by the writer are his/her own and do not reflect the views or positions of Rappler.