These past few months, in more than one occasion, President Duterte has been quoted as criticizing Senior Associate Justice Antonio Carpio for “just talking” and not doing anything about the South China/West Philippine Sea dispute. What a strange thing to say about the man who has in fact done the most about the issue, to whom the country owes so much for defending its territory and constitution. Although I have sometimes disagreed with him, I can say with absolute certainty—Justice Tony is a hero, a defender of the country’s territory and of our Constitution.
Definitely, on the South China/West Philippine Sea dispute, few can equal the passion and dedication of Justice Carpio. In particular, the most senior Justice of our Supreme Court has used his brilliance, encyclopedic knowledge of the law, his mastery of history, and formidable reputation to propagate the legal, historical, political, and moral arguments of the Philippines through his speeches and lectures delivered in various fora, both in the Philippines and abroad. Thankfully, all these speeches and lectures are now compiled in an e-book The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea that is available for free in the internet.
The e-book is a collation of 140 lectures and speeches delivered in a span of five years from October 2011 to March 2017. They recapitulate and emphasize the compelling moral and legal strength of the Philippine claim and the illegality of the incursions undertaken by Beijing in territories which by legal and historical right indisputably belong to the Philippines.
To honor Justice Carpio, at this time when he is being unfairly attacked (including by ignorant trolls who have no idea who the man is) and more importantly to celebrate our sovereignty as we prepare to celebrate Independence Day, I am serializing in a four-to-five-part series the salient parts of Justice Carpio’s book.
Justice Carpio begins by tracing the sea migration of the Austronesian people, from which the Malayo-Polynesian languages including Tagalog, were derived, beginning approximately 4,200 years ago and ended about 1250 CE. They migrated over vast distances in three oceans including the Pacific Ocean, Indian Ocean and South China Sea by outrigger sailboat what is now known as balangay in the Philippines, vaka in Hawaii, vawaka in Polynesia, and vahoaka in Madagascar.
According to Carpio, the Austronesians from the Philippines navigated the waters of South China Sea, pillaged the villages of the islands and plied their trade long before Kublai Khan’s failed invasion of Southeast Asia. The ancient Chinese named the sea Nan Hai or the South Sea, but not South China Sea while the ancient Malays also called this sea Laut Chidol or the South Sea. For centuries, the South China Sea was known to navigators as Champa Sea named after an empire in Vietnam. Early in the 15th century, from 1405 to 1433, the emperor of the Ming Dynasty sent Admiral Zheng He on seven voyages to Malacca, Thailand, Sri Lanka, India, Yemen, Saudi Arabia, and Kenya to promote trade and to project the power of the Ming Dynasty. But he never claimed for China the territories he visited.
After this historical section, Justice Carpio makes us look at the United Nations Convention on the Law of the Sea or UNCLOS, adopted on 10 December 1982 and entered into force on 16 November 1994. The UNCLOS is the constitution that governs the oceans and seas and maritime disputes among member states. It is a codification of customary international law. It also introduced novel concepts such as the exclusive economic zone and the extended continental shelf, and institutionalized the common heritage of mankind. To date, it has been ratified by 167 states and the European Union.
Carpio outlines the main principle of UNCLOS encapsulated in the phrase “land dominates the sea.” Citing a treaty provision, he states the rule as “all maritime zones or entitlements are measured from the coast of continental land, island or rock above water at high tide (Articles 3, 57 & 76, UNCLOS),” and “The rights of a coastal state over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation [Article 77(3), UNCLOS]. If the coastal state does not explore the continental shelf or exploit its natural resources, no one may undertake such activities without the express consent of the coastal state [Article 77(2), UNCLOS].
Restating the Supreme Court case of Magallona v. Ermita, which the author himself penned, Carpio said that “Supreme Court upheld the constitutionality of Republic Act No. 9522, which was enacted in 2009 to align the Philippine baselines to conform with UNCLOS. The Supreme Court rejected the argument that the Treaty of Paris lines should be the baselines of the Philippines from where to measure its territorial sea, EEZ and ECS.”
On the South China Sea Dispute, Justice Carpio points out that the dispute started when in December 1947, the Kuomintang Government of China adopted the nine-dashed line claim as embodied in a map, entitled Location Map of the South Sea Islands with 11 dashes forming a broken U-shaped line covering almost the entire South China Sea, claiming “indisputable sovereignty” over all the islands and the “adjacent” waters enclosed by the line, and “sovereign rights and jurisdiction” over the “relevant” waters enclosed by the line.” The author insists that the nine-dashed line claim is bereft of any merit in international law. The author argues on the force of the well-entrenched international law doctrine of “land dominates the sea,” and all maritime entitlements must be measured from baselines along the coast of continental land, island or rock above water at high tide, which China fails comply. According to the author, “In short, these Chinese legal scholars claim that China is entitled to rights akin to EEZ and ECS rights beyond what UNCLOS provides, even at the expense of depriving other coastal states of their own EEZs and ECSs.” In claiming so, China wants to grab 80 percent of Philippine EEZ in the South China Sea.
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