[OPINION] Legal approaches in countering Chinese aggression

Former Supreme Court Justice Antonio Carpio enumerates 'the arbitration cases that the Philippines can, and should, file against China to bury China’s fictional 10-dash line, not once but multiple times'

Former Supreme Court Justice Antonio T. Carpior delivered these remarks at ADR Stratbase Institute’s forum marking the 8th anniversary of the July 12, 2016 arbitral award.

The legal approaches in countering Chinese aggression are the countermeasures most dreaded by China. Why? Because China simply has no defense against these legal approaches.

This was admitted recently by Wu Shicun, China’s guru who convinced the Chinese communist leadership to claim, not only the islands enclosed by the nine, now 10-dash line, but also all the waters, and all the living and non-living resources within the 10-dash line – comprising almost the entire South China Sea.

Last April 27, 2024, Wu Shicun, founder of the National Institute for South China Sea Studies, told an audience at the Chinese Society of International Law in Hangzhou: “The 2016 arbitration ruling has already had a negative impact that can hardly be fully erased, but it’s very important for China to stop the Philippines from going to a second arbitration.”

Wu Shicun knows that China has absolutely no justification for its notorious 10-dash line, and China will surely lose another arbitration case which will bury forever China’s 10-dash line fiction. Wu Shicun is in utter dread of another arbitration case.

My task this morning is to enumerate the arbitration cases that the Philippines can, and should, file against China to bury China’s fictional 10-dash line, not once but multiple times.

First, the Philippines submitted last June 14, 2024 before the UN Commission on the Limits of the Continental Shelf (UNCLCS) its extended continental shelf claim, beyond the Philippines’ 200 nautical mile exclusive economic zone off the west coast of Palawan. China filed its opposition to this Philippine submission on June 18, 2024. Malaysia also filed its opposition last June 27, 2024. We expect Vietnam to also file its opposition.

Years earlier, in May 2009, Vietnam and Malaysia jointly submitted their extended continental shelf claim over the same maritime area. The Philippines and China protested this joint submission. Thus, five coastal states now claim maritime interests over the same area beyond the 200 nautical mile EZZ of any state.

Under the rules of the UNCLCS, the Commission will defer any resolution on these overlapping claims until the claimant states have resolved their dispute through negotiation or arbitration.

This sets the stage for another arbitration case against China. Under UNCLOS, a state can claim a maximum of 350 nautical miles of maritime zones from its baselines – 12 nautical miles territorial sea, 188 nautical miles EEZ measured from the outer limit of the territorial sea, and a maximum of 150 nautical miles of extended continental shelf measured from the outer limit of the EEZ.

China’s coastline measured from Hainan is more than 350 nautical miles away from the overlapping extended continental shelf being claimed by Vietnam, the Philippines and Malaysia.

In short, China has no valid claim whatsoever over the extended continental shelf being claimed by Vietnam, the Philippines, and Malaysia. China obviously cannot join the party.

Thus, the Philippines can file an arbitration case against China before an UNCLOS tribunal on the ground that China’s coastline is more than 350 nautical miles away from disputed maritime area. China cannot raise its 10-dash line because the arbitral award of July 12, 2016 had already declared that this 10-dash line has no basis in fact and in law and is contrary to UNCLOS.

If China raises the 10-dash line again, it will certainly meet the same fate as in the first arbitration.

Consequently, China will most likely boycott again this second arbitration. The Arbitral Tribunal will again rule that since there is no overlapping maritime zones between China and the Philippines in this maritime area, China is subject to compulsory arbitration. Under UNCLOS, the absence of a party subject to compulsory arbitration cannot prevent the Arbitral Tribunal from proceeding to decide the case on the merits. Thus, China will suffer what it dreads the most, losing another arbitration case on the 10-dash line.

Bajo de Masinloc

Second, the Philippines can file a third arbitration case against China for China’s refusal to allow Filipino fishermen to fish in the lagoon of Scarborough Shoal. The Philippines can invite Vietnam to join in this arbitration. The arbitral award of July 12, 2016 declared that the territorial sea of Scarborough Shoal is a traditional common fishing ground of Filipino, Chinese and Vietnamese fishermen.

The lagoon of Scarborough Shoal is part of the territorial sea of Scarborough Shoal since only a few high-tide rocks surround the lagoon. However, the Chinese coast guard has been preventing

Filipino fishermen from entering the lagoon of Scarborough Shoal to fish even as Chinese fishermen freely fish inside the lagoon.

The Philippines can submit to arbitration the drawing up of rules for common fishing in the lagoon. For example, how many tons of fish catch per year can each country take; what are the months of the fishing season; what are the months when fishing is disallowed to allow the fish to regenerate; and what fishing gear are allowed inside the lagoon. These rules, applicable equally to Filipino, Chinese and Vietnamese fishermen, are needed to make fishing sustainable in the lagoon of Scarborough shoal.

Of course, China will again boycott this third arbitration, knowing that it will again lose in the arbitration. However, the Arbitral Tribunal will proceed to decide the case on the merits and will most likely issue an arbitral award adopting the recommendations of the Philippines on the governing rules on fishing in Scarborough Shoal. This will be another arbitral award that will further bury China’s 10-dash line.

Ayungin Shoal

Third, under the July 12, 2016 arbitral award, Ayungin Shoal is part of the EEZ of the Philippines. China claims Ayungin Shoal as its territory. However, the Arbitral Tribunal ruled that Ayungin Shoal is a low-tide geologic feature beyond the territorial sea of any high-tide feature, and thus Ayungin Shoal is not a territory capable of a claim of sovereignty.

In the July 12, 2016 award, the Arbitral Tribunal also ruled that the re-supply of provisions, and the rotation of military personnel, to BRP Sierra Madre that is beached on Ayungin Shoal is a military activity outside the jurisdiction of the Arbitral Tribunal.

For lack of jurisdiction, the Arbitral Tribunal declined to order China to stop its harassment of Philippine resupply ships to BRP Sierra Madre. The logical course of action now for the Philippines is to establish a presence on Ayungin Shoal that is civilian in nature so that the activity will fall under the jurisdiction of an UNCLOS tribunal.

Thus, the Philippines should announce that it will establish a lighthouse on Ayungin Shoal to be operated by the Philippine Coast Guard, a civilian agency. The Philippine Coast Guard will also establish a sub-station on Ayungin Shoal. Additionally, the UP Marine Science Institute will establish a marine research center in Ayungin Shoal. All these facilities are civilian in nature.

Under UNCLOS, the Philippines has exclusive right to establish these facilities in its EEZ, which includes Ayungin Shoal.

When the Philippine vessels bring the construction materials to Ayungin Shoal, China is expected to block the delivery of these construction materials to Ayungin Shoal. The Philippines can then file an arbitration case against China for violating the Philippines’ exclusive right to erect structures within its own EEZ. China will probably again boycott the proceedings but the Arbitral Tribunal will of course again proceed to decide the dispute on the merits. Again, the Arbitral Tribunal is expected to issue an award against China.

Escoda Shoal

Lastly, the Department of Justice has announced that it is preparing to file an arbitration case against China for the destruction of the coral reefs in Escoda Shoal. The July 12, 2016 award declared that China caused permanent and irreparable damage to the marine coral reef ecosystem in the Spratlys when China built its artificial islands on top of the coral reefs. This violated the UNCLOS treaty obligation of China, as a coastal state, to preserve and protect the marine environment. The Philippines did not ask for damages then but in this new arbitration case the DOJ is planning to demand for damages.

However, the Philippines should file this marine environmental case only if we have marine scientific assessments, preferably one by foreign experts and another by Filipino experts, that the damage was man-made and not caused by natural events. China, of course, will again boycott this arbitration but the Arbitral Tribunal will nevertheless issue its Award that will drive another nail on the coffin of China’s 10-dash line.

The Chinese know that its 10-dash line is now seen by the world as a baseless and even ridiculous claim. Last June 30, 2024, Wu Shicun called on over 100 Chinese historians and legal scholars to create new narratives that will justify China’s expansive claim to almost the entire South China Sea. Wu Shicun stated:

“Narrative construction and discourse building are essential if we are to effectively defend our rights and interests in the South China Sea – both in the present and in future.”

We know that any new narrative construct that China invents will only be exposed as a fake or contrary to UNCLOS, or both. After the arbitral award of July 12, 2016, China invented a new construct– the Four Shas or Four Archipelagos – to justify its expansive claim to the South China Sea. China claimed that the Spratlys, the Paracels, the Pratas and Macclesfield Bank are archipelagos entitled to a full suite of maritime zones – territorial sea, exclusive economic zone and extended continental shelf.

None of these geologic features satisfies the requirements of UNCLOS for archipelagos. Macclesfield Bank is a fully submerged geologic feature that is not entitled to even a territorial sea. Today, China wants to invent another construct – I say good luck to them.

The Philippines should forthwith proceed with the filing of the foregoing arbitration cases, and pile up more arbitral awards against China, to bury forever China’s expansive claim to almost the entire South China Sea. – Rappler.com

Antonio T. Carpio is a retired senior associate justice of the Philippine Supreme Court.

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