West Philippine Sea

Defending the rule of law to preserve world peace

Antonio T. Carpio

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Defending the rule of law to preserve world peace

GUIA ABOGADO

Our world will be safe from the madness of a nuclear holocaust only if citizens of all states truly believe in the peaceful settlement of disputes and the prohibition against the threat or use of force

Editor’s Note: This is the public lecture delivered by Justice Antonio T. Carpio (Ret.) at the Convegno Vedovato Conference held on March 27, 2023 at the Pontifical Gregorian University in Rome. We are publishing it in full with his permission.

Good morning to everyone. Allow me to greet respectfully Monsignor Paul Richard Gallagher, Secretary for the Relations of the Holy See with States and International Organizations. I wish to thank the Pontifical Gregorian University, headed by its Rector, Fr. Mark A. Lewis, SJ, and the Dean of the Social Sciences Faculty, Fr. Peter Lah, SJ, for inviting me to address you this morning. I also wish to thank Fr. Albert Alejo, SJ, for arranging my visit to this great University.  

I am truly honored to discuss with you this morning a topic that is critical to the preservation of the foundational principles essential to world peace, which is the most important common good for the continued existence of humankind.

The High Seas Treaty

Just three weeks ago, on March 5, 2023, the United Nations Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction approved the final text of the High Seas Treaty, a monumental work that spanned almost two decades of contentious negotiations among 120 nations to protect and preserve for posterity, and to share for all mankind, the living resources of the oceans of our planet beyond national jurisdiction.

The living and non-living resources in the high seas beyond national jurisdiction are called, in layman’s term – the “global commons,” and in the literature of the Law of the Sea – the “common heritage of mankind.”  

The global commons in the high seas refer to two areas: first is the water column seaward beyond the Exclusive Economic Zones (EEZs) of coastal states; and second is the seabed, ocean floor and their subsoil seaward beyond the Extended Continental Shelves (ECSs) of coastal states. These global commons in the high seas are well-defined in the 1982 United Nations Convention on the Law of the Sea or UNCLOS, the constitution for the oceans of our planet. 

The high seas comprise nearly two-thirds of all our oceans, or almost one-half of the entire surface of our planet. All nations rejoice at this watershed agreement because for the first time in history the living resources of the global commons in the high seas can be protected and preserved, and exploited sustainably, for the benefit of all peoples of our planet for generations to come.  

There is, however, a tragic side to this world-wide rejoicing. In the South China Sea, where about 25% of the sea constitutes the high seas, ownership to the resources of the high seas, including the resources of the global commons, is claimed exclusively by one state – China. Under its infamous nine-dash line, China claims historic rights, allegedly dating back 2,000 years ago, to all the resources within the nine-dash line. However, the Chinese authorities first circulated within China its nine-dash line map only in 1947, and it was only in 2009 that China submitted its nine-dash line map to the United Nations.

China’s nine-dash line encroaches not only on the entire high seas of the South China Sea, but also on vast areas of the EEZs of the Philippines, Vietnam, Malaysia, Brunei, and Indonesia in the South China Sea. In the case of the Philippines, the nine-dash line encroaches on 80% of the EEZ of the Philippines in the South China Sea. This is a clear violation of UNCLOS. 

If UNCLOS cannot apply in the South China Sea because a nuclear- armed state in the region is claiming ownership to almost the entire sea, then other nuclear-armed states may also claim ownership to their near seas to the prejudice of their non-nuclear armed neighboring states. Russia may claim parts of the Arctic Ocean, as even now Russia is already staking claims in the Arctic Ocean beyond what UNCLOS allows. That would mean the collapse of UNCLOS, a seminal treaty overwhelmingly ratified by 164 member states of the United Nations and specifically intended to preserve peace and stability in our oceans.

The rule of law in our oceans

There are two foundational principles in the 1945 United Nations Charter. First, all states shall settle their disputes through negotiation, enquiry, conciliation, mediation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice in such a manner that international peace, security, and justice are not endangered. Second, all states shall refrain from the threat or use of force against the territorial integrity or political independence of another state, or in any other manner inconsistent with the purposes of the UN Charter.

These foundational principles of the UN Charter are jus cogens or compelling law, from which there can be no derogation. Consequently, a provision in a treaty allowing the threat or use of force to settle a dispute is void ab initio. Violation of these foundational principles is a violation of international law and is unlawful.

These jus cogens principles in the UN Charter are expressly adopted in UNCLOS in the settlement of disputes arising under UNCLOS. Thus, the Rule of Law in our oceans is that all maritime disputes between or among states must be settled by peaceful means, without resort to threat or use of force.

Since the dawn of humankind until just before the adoption of the 1945 UN Charter, war was a legitimate means of settling disputes between or among states. War was a legitimate means of annexing the territory of another state. The victor in a war, even if the victor was the aggressor, was rewarded with legitimacy. That is why states were almost perpetually at war, which eventually led to two devastating world wars.

In 1928, there was an attempt in the Paris Peace Pact to outlaw wars of aggression. However, four years after the signing of the Paris Peace Pact by 63 states, all signatory states except one were at war with one or more states. The Paris Peace Pact failed because of a fatal flaw: it outlawed wars of aggression but did not provide for a mechanism for the peaceful settlement of disputes between or among states. 

The horrific devastation wrought by World War II led the nations of the world, in crafting the 1945 UN Charter, to require all disputes between or among states to be settled only by peaceful means, and to outlaw the threat or use of force to such settle disputes. This mandatory settlement of disputes by peaceful means, and the prohibition against the threat or use of force, became foundational principles enshrined in the UN Charter. There is only one exception to these foundational principles when states on their own can use force, and that is when they exercise their inherent right to individual or collective self-defense in case of armed attack.   

To address the fatal flaw of the Paris Peace Pact, the UN Charter created the International Court of Justice to peacefully settle, through voluntary submission to judicial process, the resolution of disputes between or among states. More importantly, the UN Charter empowered the Security Council to authorize states to use armed force to maintain international peace and security. UNCLOS went a step further: it created a compulsory and binding dispute settlement mechanism, through the International Tribunal for the Law of the Sea or through ad hoc third-party arbitration, for the peaceful resolution of maritime disputes between or among states.

The global commons in our oceans

Under UNCLOS, the high seas start seaward from the outer limit of the 200-nautical mile EEZ, which is measured from the baselines of each coastal state. The high seas can be divided into two parts: the high seas falling within the ECS of adjacent coastal states, and the high seas beyond the ECS of coastal states. 

In the ECS, an area not exceeding 150 nautical miles from the outer limit of the EEZ, all the non-living resources, like oil, gas and other minerals, belong to the adjacent coastal state. However, all living resources in the ECS, save for sedentary species, belong to the global commons. Sedentary species, which are living organisms that become immobile at their harvestable stage, belong to the adjacent coastal state.

Beyond the ECS, all the living and non-living resources without exception belong to the global commons. All living resources in the high seas belonging to the global commons are open to fishing by all states of the world, whether coastal or landlocked. This means that even citizens of landlocked states, like citizens of Austria and Hungary in Europe, citizens of Chad and Ethiopia in Africa, and citizens of Tibet and Laos in Asia, have the right to fish in all the high seas of the world. 

The exploitation of non-living resources in the global commons, like polymetallic nodules, is regulated by the International Seabed Authority (ISA), an institution created under UNCLOS. Those who exploit the non-living resources in the global commons must secure a permit from the ISA and must pay a royalty to the ISA. This royalty, after deducting the expenses of the ISA, is divided among the developing states of the world, both coastal and landlocked.

In the South China Sea, China claims exclusive ownership to all the living and non-living resources in the global commons of the South China Sea, in clear violation of UNCLOS. Thus, under its nine-dash line, China in effect claims that the High Seas Treaty, which will regulate exploitation of living resources in the global commons, cannot apply in the high seas of the South China Sea. 

China does not recognize that the living and non-living resources in the high seas of the South China Sea, beyond national jurisdiction, belong to the global commons as provided in UNCLOS and in the High Seas Treaty. China’s position is gravely detrimental not only to coastal states around the South China Sea, but also to all other states, coastal and landlocked, throughout the world.

The Arbitral Award of an UNCLOS tribunal

In mid-2012, China seized from the Philippines Scarborough Shoal, an uninhabited atoll with a handful of tiny rocks not more than three meters above water at high tide. Scarborough Shoal has appeared as part of Philippine territory in official Philippine maps since 1734. Scarborough Shoal, while more than 500 nautical miles from China’s Hainan province and just 120 nautical miles from the Philippines’ Zambales province, falls within China’s expansive nine-dash line. 

Instead of sending its Navy to retake Scarborough Shoal, the Philippines sent its lawyers to The Hague to question the validity of China’s nine-dash line under UNCLOS. The Philippines resorted to the Rule of Law, bringing the dispute to a forum where warships, warplanes, missiles and nuclear bombs do not count, and where the dispute would be resolved based solely on the law and the facts. Indeed, the Rule of Law is the great equalizer among states, leveling the playing field in the resolution of disputes between nuclear-armed states like China and non-nuclear armed states like the Philippines.

A five-person ad hoc Arbitral Tribunal created under UNCLOS unanimously ruled on July 12, 2016 that China’s nine-dash line could not serve as legal basis to claim any of the waters or resources of the South China Sea and that China could only claim maritime zones that are allowed under UNCLOS, measured from China’s baselines along its coast. The Arbitral Tribunal also ruled that the Philippines’ 200-nautical mile EEZ does not overlap with China’s 200-nautical mile EEZ. The Arbitral Tribunal further found that China never had historic rights to the South China Sea under international law.

China to this day refuses to accept the Arbitral Award despite having ratified UNCLOS since 1996, and despite being clearly subject to the compulsory and binding dispute settlement provisions of UNCLOS.  China cannot claim that UNCLOS is a Western imposition since China participated from day one in the nine years that spanned the negotiations of UNCLOS. Most of the states of the world have come to acknowledge that the Arbitral Award is binding and final between China and the Philippines. The Arbitral Award has exposed China’s nine-dash line, allegedly marking China’s maritime boundary since 2,000 years ago, as a blatant fakery.

China’s new coast guard law

Last January 22, 2021, China amended its coast guard law to authorize its coast guard vessels to use all “necessary security and control measures,” which includes firing its weapons, to enforce China’s claim to its “jurisdictional waters” under its expansive nine-dash line. This means that Chinese coast guard vessels can fire their weapons on foreign vessels that fish, survey, or drill within waters enclosed by China’s nine-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 nine-dash line.  

In short, 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 nine-dash line. This is a blatant violation of the UN Charter and of UNCLOS which prohibit the threat or use of force to settle territorial and 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 nine-dash line. Thus, the enactment of China’s new coast guard law is per se a clear violation of the foundational jus cogens principles enshrined in the UN Charter.

Last February 6, 2023, a Chinese coast guard vessel operating within the EEZ of the Philippines in the South China Sea directed a military grade laser beam at a Philippine coast guard vessel, temporarily blinding some personnel of the Philippine coast guard vessel. Under the 1995 Protocol on Blinding Laser Weapons, to which China and the Philippines are both parties, the employment of lasers that permanently blind is outlawed for causing unnecessary suffering, placing such weapons in the same category as biological and chemical weapons. 

Lasers, whether military grade or not, can cause permanent blindness depending on the duration that the human eye is exposed to the laser beam. But even if the laser only results in temporary blindness, such laser is still a weapon and its employment constitutes prohibited use of force under the UN Charter and UNCLOS.  

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 foundational principles of the UN Charter mandating the peaceful settlement of disputes and prohibiting the threat or use of force to settle disputes.

Russian invasion of Ukraine

On February 27, 2014, Russia invaded Crimea, a territory of Ukraine, and subsequently formally annexed Crimea to Russia. The Russian invasion and annexation of Crimea was overwhelmingly condemned on March 27, 2014 by the UN General Assembly as a violation of the foundational principles of the UN Charter mandating the peaceful settlement of disputes and prohibiting the use of force against the territorial integrity of another State.

On February 24, 2022, Russia again invaded Ukraine and soon after formally annexed Ukraine’s territory in Luhansk, Donetsk, Zaporizhzhia and Kherson. This second invasion and annexation of Ukrainian territory was again overwhelmingly condemned by the UN General Assembly on March 2, 2022, and yet again on February 23, 2023, as a violation of the foundational principles of the UN Charter mandating the peaceful settlement of disputes and prohibiting the use of force against the territorial integrity of another State.

The Russian invasion of Ukraine was the first time since World War II that a European state invaded and annexed the territory of another European state. Russian missiles have rained death and destruction on Ukrainian cities on such a massive scale never seen since World War II. Ironically, Russia was one of three nuclear-armed states – the United Kingdom and the United States were the other two states – that guaranteed the territorial sovereignty and political independence of Ukraine under the 1994 Budapest Memorandum in exchange for Ukraine’s giving up the nuclear weapons that it inherited upon the break-up of the USSR. 

The ongoing struggle to preserve the foundational principles of the UN Charter

China and Russia, both nuclear-armed states, are spearheading a blatant attack to overturn the foundational principles of the UN Charter mandating the peaceful settlement of disputes and prohibiting the threat or use of force, foundational principles that have prevented a Third World War in the last 78 years. While Russia wages a kinetic war to overturn these foundational principles, China employs gray zone tactics that threaten and intimidate but fall short of a kinetic war. Nevertheless, both acts are outlawed under the UN Charter.

If China and Russia succeed in overturning the foundational principles of the UN Charter, then “might is right” again. The world will revert to the period before the 1945 UN Charter when wars of aggression were legitimate means of settling disputes, and the victors in wars of aggression were rewarded with the annexation of the territory of the vanquished states.

The reversion to the “might is right” principle will certainly mean the collapse of the UN Charter as well as the end of UNCLOS. This will lead to never ending wars. To defend themselves, states will have to devote much of their resources to acquiring warships, warplanes, missiles and other weapons, leading to a world-wide arms race and diverting scarce resources needed for social services, education and economic development. 

Non-nuclear armed states will be at the mercy of nuclear-armed states. States with the technology will develop nuclear arms to defend themselves from bullying or invasion by nuclear-armed states. It will be a dangerous world to live in. Ultimately, this “might is right” world order will lead to the use of nuclear weapons. 

What should we do to avert the scourge of war?

The foundational principles of the UN Charter mandating the peaceful settlement of disputes and prohibiting the threat or use of force must be taught to all students of the world from grade school to college. Thus, the curriculum of all schools should include the teaching of these foundational principles. These foundational principles must be made part of the DNA of citizens of all states so that everyone will oppose national leaders who resort to threat or use of force to settle any dispute between or among states.

The vast majority of citizens of the European Union oppose the Russian invasion of Ukraine because of their experience or knowledge of the scourge of war, the two world wars having started in Europe. We must embed in the DNA of all peoples of the world, through continuing education, a deep conviction that all disputes between or among states must be settled by peaceful means, avoiding the threat or use of force.

Our world will be safe from the madness of a nuclear holocaust only if citizens of all states truly believe in the peaceful settlement of disputes and the prohibition against the threat or use of force. This applies particularly to citizens of Russia and China, nuclear-armed states which exercise veto power in the Security Council that prevents any sanction against them for their aggressive acts against other states.  

Once citizens of Russia and China understand the utmost importance, for the survival of humankind, of peaceful settlement of disputes and the prohibition against the threat or use of force, they will themselves oppose their national leaders who use their nation’s armed might to forcibly annex, in violation of the UN Charter, territories or maritime zones of other states.

Our generation has mercifully been spared from the scourge of a Third World War. It is therefore the duty of our generation, in the words of the UN Charter, “to save succeeding generations from the scourge of war, which twice in our life-ime has brought untold sorrow to mankind.” We know that a Third World War may very well spell the end of human civilization as we know it today.  

Ultimately, the only way to prevent a Third World War is for citizens of all states to demand that their national leaders follow the Rule of Law as enshrined in the foundational principles of the UN Charter – that territorial, maritime or other disputes between or among states should be settled only by peaceful means, avoiding the threat or use of force to settle such disputes. These foundational principles of the UN Charter are the most essential common good for the survival of humankind.

Thank you for your kind attention and a pleasant day to everyone. – Rappler.com

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