This is the third of four columns serializing Justice Antonio Carpio’s e-book, The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea. In this article, I summarize and share Carpio’s analysis of China’s historic claim to the areas that the Philippines has sovereignty over.
Justice Carpio emphasizes the fallacy of China’s historic claims by advancing a number of assertions.
Historical facts is not a valid basis whatsoever in the resolution of maritime disputes under the United Nations Convention on the Law of the Sea. He presents as an example Spain and Portugal which cannot reclaim their colonial territories despite the 1481 Papal Bull confirming the division of the then undiscovered territories between the two countries. Moreover, the South China Sea was not even named by the Chinese but by European cartographers.
Neither can conquest be the basis for ownership under international law. On this argument he cites Greece’s conquest by Alexander the Great of Egypt, Iran, Turkey, and the land stretching up to Pakistan. Same goes with China’s claim over Mongolia or Italy as to the land conquered and ruled by the Roman Empire from 27 BCE to 476 CE, stretching from Europe to the Middle East.
Citing the case the Island of Palmas Case (The United States of America v. The Netherlands), Carpio argues that in international law “a state cannot maintain title to territory based on discovery alone where subsequent to such discovery another state has shown ‘continuous and peaceful display of territorial sovereignty’ over the same territory. Since the 19th century, the rule in international law has been that discovery alone.”
This argument is buttressed by UNCLOS which states that “a state can only invoke “historic” rights to claim a territorial sea or internal waters in deeply indented bays or gulfs along the coast of the mainland, like in the Gulf of Fonseca89 (Article 10, UNCLOS). Historic rights or historic title cannot be invoked to claim EEZs or ECSs. The creation of the EEZ under Article 56 of UNCLOS with “sovereign rights,” which means supreme rights, accorded to the adjacent coastal state, extinguished all historic rights or claims by other states to the EEZ of a coastal state. The word “exclusive” in the term EEZ means the economic exploitation of the zone is exclusive to the adjacent coastal state. No one may exploit the natural resources in the EEZ without the express consent of the coastal state [Article 77(3), UNCLOS].”
As noted by Justice Carpio, China was an active participant in the negotiations of UNCLOS from 1973 to 1982. China even sided with the developing coastal countries in demanding a 200 NM EEZ where the coastal state has exclusive sovereign rights to exploit the EEZ. Now contradicting its previous actions, China is now claiming that historic rights as an exception to the exclusive sovereign rights of coastal states in their EEZs. In fact, in the UNCLOS negotiations the participants agreed that the 200 NM EEZ proceeds on the assumption that all historic claims of other states in the EEZ of a coastal state were deemed extinguished.
The author points out that even assuming, quod non, historic rights can be claimed beyond the territorial sea, the following sine qua non requisites must first be complied with for historic rights to be valid under international law: First, the state actually exercised authority over the area where it claims historic rights; Second, the state exercised that authority continuously and for a long period of time; and third, other states either acquiesced in or failed to oppose the exercise of such authority.
China’s nine-dash line claim fails to satisfy these requisite conditions. Yet, despite the baselessness of its claims, China invokes “historical facts” as basis for its nine-dashed line claim without specifying what these historical facts are.
China anchors its claim of sovereignty over the islands on supposed abundant historical evidence. Yet the author observes these are in fact non-existent and the evidence mostly fabricated. The author cites a noted French geographer, Francois-Xavier Bonnet, who has extensively researched on the South China Sea dispute, who asserts that China actually planted its so-called “abundant historical evidence,” at least in the Paracels and the Spratlys. Francois Xavier Bonnet writes:
“Several authors writing about the Chinese claim to the Paracel Islands have dated to 1902 the first official Chinese expedition to these islands. However, none of these writers has been able to show any records of this 1902 expedition taking place. In fact, Chinese records show that the expedition never happened. Instead, a secret expedition took place decades later to plant false archeological evidence on the islands to bolster China’s territorial claim. The same strategy has been applied in the Spratly Islands: the sovereignty markers of 1946 had been placed, in fact, ten years later, in 1956.” The author likewise cites as annexes documents purporting to antedate markers in certain disputed Islands including the Paracels and the Spratlys.”
Finally, Justice Carpio notes that while China points to ancient Chinese maps as “historical facts” to claim the islands, rocks, reefs, and waters within the nine-dashed line in the South China Sea, it, however, refuses to produce these supposed ancient maps. Noting further that under international law, a map per se does not constitute a territorial title or a legal document to establish territorial rights.
There should be no doubt who has the legal upper hand on this dispute. In the final column of this series, I will summarize the arbitral award the Philippines won against China as interpreted by Justice Carpio. I will also share his thoughts on how this award could be enforced.
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