China’s expansionism: Threat of force, false history and cartographic invasion

Speech delivered by Justice Antonio T. Carpio (Ret.) on September 8, 2023, before the Maritime League Conference at the SMX Mall of Asia, Pasay City.

Essentail backdrop to recent developments

We must frame recent developments in the West Philippine Sea (WPS) against the backdrop of China’s new coast guard law which took effect on February 1, 2021. This new China coast guard law provides that Chinese coast guard vessels “shall have the power to take all necessary measures including the use of weapons” to enforce China’s claim under its 9, now 10-dash line. This authorizes China’s coast guard vessels to fire on foreign ships that exploit natural resources in maritime areas falling within China’s 10-dash line.  The new law also authorizes Chinese coast guard vessels to dismantle structures erected by other countries on geologic features within the 10-dash line.  

China’s 10-dash line encroaches on about 80% of the Philippine exclusive economic zone (EEZ) in the WPS. Thus, a Chinese coast guard vessel recently used its water cannon to stop Philippine vessels from delivering supplies to the BRP Sierra Madre in Ayungin Shoal, a low-tide feature within Philippine EEZ as ruled by the arbitral tribunal in its July 12, 2016 award.  The Chinese coast guard’s use of water cannon is the first implementation of this new Chinese coast guard law against a Philippine public vessel, and it will not be the last.

The UN Charter provides, “All Members shall settle their international disputes by peaceful means.” The UN Charter further provides, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” In short, the UN Charter outlaws the threat or use of force to settle disputes between states. China’s new coast guard law, in itself, is a threat of force against other coastal states and is clearly incompatible with the UN Charter.  

That is why the Philippines should bring to the attention of the UN General Assembly that China’s new coast guard law, recently implemented by China in Ayungin Shoal through the use of water cannon, should be condemned as a violation of the UN Charter. Unless the Philippines and other ASEAN coastal states challenge the compatibility of China’s new coast guard law with the UN Charter, China will later claim that the Philippines and other Asean countries have acquiesced to its new coast guard law.

We should remember that China’s threat of force in the South China Sea is as much a violation of the UN Charter as Russia’s use of force in its invasion of Ukraine. Both threat and use of force to settle disputes between states are expressly outlawed by the UN Charter.  The UN General Assembly overwhelmingly condemned Russia’s use of force in Ukraine. The UN General Assembly should similarly condemn China’s threat of force in the South China Sea.

False claim of Chinese embassy on Cairo and Potsdam Declarations

Last August 15, 2023, the Chinese Deputy Chief of Mission in Manila, Mr. Zhou Zhiyong, claimed that the Cairo and Potsdam Declarations stated that “all territories Japan has seized from the Chinese, including those of Nansha Islands and Xisha Islands, shall be restored to China.”

This claim is obviously false, as patently false as China’s 10-dash line claim to the South China Sea. Sadly, a small but vocal group of Filipinos is echoing this false claim of China. So let us set the record straight.

What the 1943 Cairo Declaration stated is that “all the territories Japan has stolen from the Chinese, including Manchuria, Formosa, and the Pescadores shall be restored to the Republic of China.” Stated otherwise, what will be “restored to China” are “all the territories Japan has stolen from the Chinese.” The Paracels and the Spratlys were not stolen by Japan from the Chinese. Neither were the Paracels and the Spratlys mentioned in the Cairo Declaration.

In 1932 France occupied and annexed the Paracels. China officially protested in a note verbale the French occupation and annexation, stating that the Paracels were “the southernmost territory of China.” Clearly, France was in possession of the Paracels from 1932 until Japan seized the Paracels in 1939.

In 1933, one year after occupying the Paracels, France formally annexed the Spratlys. China did not protest this French annexation of the Spratlys because the year before, in 1932, China had announced to the world that the Paracels were its southernmost territory. The Spratlys are farther southwest from the Paracels, closer to the Philippines. You have to cross the high seas of the South China Sea to go from the Paracels to the Spratlys.

In 1939 Japan seized both the Paracels and the Spratlys from France. Japan established a submarine base in Itu Aba, the largest island in the Spratlys. This submarine base was used by the Japanese in the invasion of the Philippines in World War II. 

In 1943, China officially published the China Handbook, which expressly stated that the southernmost territory of China was Triton Island, the island in the Paracels closest to Vietnam. Let me quote the 1943 China Handbook, an official publication of the Republic of China:

“The territory of the Republic of China extends from latitude 53º 52’ 30” N. (Sajan Mountains) to 15º 16’ N (Triton Island of the Paracel Group to the South of Hainan) and from longitude 73º 31’ E. (the eastern fringe of the Pamirs) to 135º 2’ 30” E. (the confluence of the Amur and Ussuri Rivers).”

In short, it its 1943 China Handbook, China officially declared that its southernmost territory is Triton Island in the Paracels.

In 1947, China revised the China Handbook and claimed for the first time the Spratlys, but at the same time China expressly admitted that the Spratlys were also claimed by the Philippines and by the French in Indo-China. Let me quote the 1947 China Handbook, an official publication of the Republic of China:

“The territory of the Republic of China begins in the north from latitude 53º 52’ 30” N. (Sajan Mountains) and in the east from longitude 135º 2’ 30” E.  (the confluence of the Amur and the Ussuri Rivers). The southernmost and westernmost boundaries remain to be settled as the Pamirs on the west constitute an undemarcated area among China, the U.S.S.R. and the British Empire, and the sovereignty of the Tuansha Islands (the Coral Islands) on the south are contested among China, the Commonwealth of the Philippines and Indo-China. The northern section of the boundary between China and Burma remains to be demarcated.”

The claim of China to the Spratlys in its 1947 China Handbook carries an admission by China that the Philippines and France had prior claims to the Spratlys. It is likely that the Chinese government, under the Kuomintang Party, learned from their US military advisers during the 1927-1949 civil war with the Chinese communists that the Spratlys were part of Philippine territory as shown in the 1875 Carta General del Archipielago Filipino, the last official Spanish map of Philippine territory. This 1875 Spanish map of the Philippines was adopted entirely and reissued by the US War Department in four editions, between 1898 and 1902.

In 1948 China released for the first time to the public within China its 9-dash line map claiming all the islands within the 9-dash line. The title of this 1948 9-dash line map states “Location Map of the South Sea Islands.” This title indicates that the claim was only to the islands enclosed by the 9-dash-line, including at that time, the 3-nautical mile territorial seas of the islands. There was no claim in this 9-dash line map to almost the entire South China Sea.

Thus, the 1948 9-dash line map was originally not a claim to waters and resources beyond the territorial seas of the enclosed islands. It was only in the 1990s that China started to claim all the waters and resources within the 9-dash line beyond the territorial seas.

Japan did not steal the Paracels or the Spratlys from the Chinese. The Paracels and the Spratlys fall under the Cairo Declaration’s other category of territories, that is, “Japan will also be expelled from all other territories which she has taken by violence and greed.”  The Cairo Declaration did not award these “other territories” to any country.

The 1945 Potsdam Declaration stated that the “terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.” The Potsdam Declaration merely reiterated the Cairo Declaration and never mentioned the Nansha Islands or the Xisha Islands.

Clearly, when the 1943 Cairo and 1945 Potsdam Declarations were issued, China had not yet claimed the Spratlys and was not also in possession of the Spratlys. Thus, the 1943 Cairo and the 1945 Potsdam Declarations could not have declared the restoration to China of the Spratlys for the obvious reason that at the time of these two declarations China had neither claimed nor possessed the Spratlys. 

In short, there was nothing in the Paracels nor the Spratlys to restore to China at the time the Cairo and Potsdam Declarations were issued.  

What is definitive is what transpired in the 1951 San Francisco Peace Conference that formally ended the Pacific War. The motion of the Union of Soviet Socialist Republics to award the Spratlys and the Paracels to China was defeated by a vote of 46 to 3, with one abstention. Thus, the San Francisco Peace Treaty merely states: “Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands.” There is no mention to what country the Spratlys or the Paracels would be awarded.

The 1952 Treaty of Taipei between Japan and the Republic of China merely recognized the 1951 San Francisco Peace Treaty. Thus, the Treaty of Taipei states: “It is recognized that under Article 2 of the Treaty of Peace with Japan signed at the city of San Francisco in the United States of America on September 8, 1951 (hereinafter referred to as the San Francisco Treaty), Japan has renounced all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratly Islands and the Paracel Islands.”  

There is no award of the Spratlys or the Paracels to China because one year before the Treaty of Taipei, Japan had already renounced in the San Francisco Peace Treaty any right, title and claim to the Spratlys and Paracels. Thus, in the Treaty of Taipei Japan had nothing to award to the Republic of China anymore.

Finally, China justifies its expansionist claim to almost the entire South China Sea as a recompense for what it calls the Century of Humiliation it suffered at the hands of Western Colonial Powers and Japan. At the time of China’s Century of Humiliation, the Philippines, Vietnam, Malaysia, Indonesia, and Brunei were also under colonial rule by the Western Powers. 

The ASEAN coastal states had nothing to do with the acts of the Western Colonial Powers and Japan against China. China cannot exact justice and compensation from the Western Colonial Powers and Japan by seizing the island territories and maritime zones of ASEAN coastal states and bullying them. That would not only be irrational, but would also make China an imperialist hegemon even worse than the Western Colonial Powers. 

China’s new 2023 standard map

Last August 21, 2023, China released its new “standard map” depicting China’s alleged national territory. In the South China Sea, this new map brings one very important change affecting all coastal states in the South China Sea. The legend of the map states that the unbroken boundary lines on continental China, and the broken or dashed lines in the South China Sea, constitute China’s “International boundary.”

When China designates the unbroken and dashed lines as its “International boundary,” it means that land or waters beyond the lines are not China’s national territory, but all the land and waters within both lines are China’s national territory. That makes the “International boundary” also a national boundary.  

Despite China’s claim that everything within the unbroken and dashed lines constitutes its national territory, the legend of the 2023 map states that dashed lines in the South China Sea are “Undefined.” China has never disclosed the geographical coordinates of the nine-, now 10-dashed lines. Thus, the dashed lines remain “undefined” as marked in the legend of the 2023 map even as they constitute China’s “International boundary.”

Before this 2023 map, China was ambiguous about the meaning of the nine, now 10-dashed lines. There were Chinese scholars who claimed that the dashed lines marked China’s national boundary in the South China Sea. Other Chinese scholars opined that the dashed lines represent a territorial claim only to the islands, and a natural resource claim to maritime zones beyond the territorial sea of the islands. 

Despite this ambiguity, the Philippines protested a 2013 map of China which appeared to claim that the 10-dash line, up from 9, in the South China Sea marked China’s national boundary. This new 2023 map is, however, categorical in expressly designating the dashed lines in the South China Sea as China’s “International boundary.”

This new 2023 map now makes it clear: the dashed lines are a territorial claim to islands, waters, and natural resources enclosed by the 10 dashes. In short, China claims as its national territory about 85.7% of the South China Sea that is enclosed by the dashed lines, the only state in the world claiming ownership to almost an entire sea, in clear violation of international law and the 1982 UN Convention on the Law of the Sea or UNCLOS.

China’s new 2023 map erases the high seas in the South China Sea, incorporating these high seas as part of China’s national territory. Under international law and UNCLOS, the high seas belong to all mankind. Thus, all UN and UNCLOS member states, and all the peoples of the world, are prejudiced by China’s 2023 map and must therefore strongly protest this map.  This map also prevents the recently UN-approved High Seas Treaty from applying to the high seas of the South China Sea.

The Philippines immediately protested this new 2023 map of China for two reasons. First, this new map, like China’s old nine-dash line map, encloses the Kalayaan Island Group and Scarborough Shoal, which are Philippine territory. China’s new map claims these Philippine islands as part of China’s national territory. Second, the new map encroaches on the Philippine exclusive economic zone in the West Philippine Sea as ruled in the July 12, 2016 Arbitral Award.  

Incredibly, in its 2023 map China now officially asserts, contrary to international law and UNCLOS, that the entire high seas, and most of the exclusive economic zones of the South China Sea coastal states, are the territorial sea of China since the waters enclosed by the 10-dash line constitute China’s national territory. That makes China the imperial hegemon of the South China Sea and the only coastal state in the world claiming a territorial sea far exceeding the 12-nautical mile limit under UNCLOS. 

In fact, China is now claiming a territorial sea extending more than 600 nautical miles from its coastline, comprising almost the entire South China Sea. That is 50 times more territorial sea than what is allowed under UNCLOS.

The new 2023 map shows a 10^th dashed line on the eastern side of Taiwan facing the Pacific Ocean. This 10th dashed line first appeared in Chinese maps in 2013.  However, since the 10^th dashed line affects only Taiwan and not the other coastal states which all follow the One-China policy, the other coastal states did not raise a furor in 2013 over the 10^th dashed line.

This new 2023 map of China is different. India, Malaysia, Indonesia, Vietnam, Philippines, Japan and Taiwan have strongly protested this new map. The United States has called the map “unlawful.” I expect other countries will also protest or denounce this map.

Getting the gas in Reed Bank

In 2020, Malaysia successfully surveyed and drilled in its EEZ facing the South China Sea despite Chinese threats and saber-rattling that the area fell within China’s 9-dash line.  Malaysia sent its survey and drill ships accompanied by its navy ships. At the same time Australian and US naval vessels happened to conduct naval drills in the same area. The Chinese coast guard failed to stop the Malaysians.

In 2021, Indonesia also successfully surveyed and drilled in its EEZ in the Natuna Islands facing the South China Sea despite Chinese threats and saber-rattling that the area fell within China’s 9-dash line. Indonesia sent its survey and drill ships accompanied by its navy ships.  At the same time the US aircraft carrier Ronald Reagan happened to pass by in the same area. The Chinese coast guard failed to stop the Indonesians.

Malaysia and Indonesia had no choice but to open new oil and gas fields because their existing oil and gas fields are rapidly being exhausted. Malaysia and Indonesia rely heavily on oil and gas exports to fuel their economies, and opening new oil and gas fields was a matter of the highest national interest.

Bottomline, even if China refuses to acknowledge and respect the EEZs of Malaysia and Indonesia, these countries are still winning because they can exploit the oil and gas within their EEZs despite Chinese threats and intimidation. The EEZ is all about the exploitation of the natural resources found in the EEZ.  The country that can exploit the oil and gas, and other natural resources in the EEZ wins.

The Philippines now stands at a crossroads: can we replicate the success of Malaysia and Indonesia? Malampaya, our only operating gas field, will run out of gas in the next two years or so. Without Malampaya, which supplies 40 percent of the energy requirement of Luzon, we will have 12 to 14 hours of brownout every day in Luzon. That will be a devastating blow to our economy. Factories will close, and offices and schools cannot operate fully. No new foreign investor will put up a factory in the country and those already operating here will leave.

The only replacement for Malampaya is Reed Bank, which holds probably three times more gas than Malampaya. National interest demands that we now survey, drill, and exploit the gas in Reed Bank. 

There is a planned joint patrol in the Reed Bank area of the WPS by the Philippine and US navies before the end of this year. That will be the ideal time for the Philippines to send its survey and drill ships to Reed bank. Do we have the political will to pull this off? This is the litmus test for our national leadership.

If our national leadership fails this test, then the only alternative for the Philippines is to import LNG, which will mean an increase of about 50% in our power rates in Luzon. If we cannot replicate what Malaysia and Indonesia have done, then we must brace ourselves for very expensive power rates soon, ushering in a high inflation regime in our economy.

Conclusion

China’s new coast guard law, recently implemented by the Chinese coast guard when it harassed with water cannon Philippine re-supply ships proceeding to Ayungin Shoal, is a clear threat of force in settling disputes between states in violation of the UN Charter. China continues to blatantly distort history by claiming islands in the South China Sea that were never part of China’s territory in the past. China’s new 2023 map, which claims about 85.7% of the South China Sea as China’s national territory, is an open defiance and violation of international law and UNCLOS. China still refuses to recognize the Arbitral Award of July 12, 2016, and remains the only member of UNCLOS that refuses to abide by a judgment of a tribunal created under UNCLOS.

Clearly, China’s behavior in the South China Sea is that of a hegemonic rogue state. The only recourse of the Philippines in exploiting its gas in Reed Bank is to have joint patrols in the WPS with its allies and like-minded states. – Rappler.com