HAPI listens to Justice Carpio’s lecture on the PH-CHN dispute

Atty Jesus Falcis and Jennifer Gutierrez, HAPI Executive Director and Justice  Carpio
HAPI listens to Justice Carpio’s lecture on the PH-CHN dispute: Throw back Activism in Nov, 2015
The Humanist Alliance of the Philippines – International (HAPI) attended a seminar by Justice Carpio on the dispute between Philippines and China in the South China / West Philippines Sea. The seminar was held by the Philippine Association for Government Budget Administration (PAGBA) and exclusive for its members, lawyers from the Philippine Attorney’s Office (PAO), and members of HAPI last November 6, 2015 at the Philippine Trade Training Center. HAPI Executive Director Jennifer Gutierrez and HAPI Legal Consultant Atty. Jesus Falcis attended the seminar.
HAPI was invited to attend the seminar to help spread awareness and understanding about the South China / West Philippine Sea dispute. Justice Carpio specifically acknowledged the presence of HAPI at one point during his lecture and the importance of environmental non-governmental organizations (NGO) in helping spread awareness.
Justice Carpio’s lecture focused on the legal, security, and environmental implications of the arbitration case filed by the Philippines against China with the Permanent Court of Arbitration (PCA). The Philippines filed the case primarily to question the validity of China’s 9-dash line, where China claims “sovereign” and “historic” rights over the South China / West Philippine Sea.
LEGAL Implications
Justice Carpio began the lecture by discussing about international law and the rights of states like the Philippines, China, and Vietnam over maritime features in the South China / West Philippine Sea. Justice Carpio emphasizes that the 9-dash line would gobble up a huge chunk of the maritime rights of South East Asian states. The Philippines would lose almost 80% of its exclusive economic zone if China’s 9-dash line was not held invalid under international law. China would also claim ownership or rights over the high seas or international waters.
States under international law, specifically the United Nations Convention on the Law of the Sea (UNCLOS), are given rights to their territorial sea, exclusive economic zone (EEZ), and their extended continental shelf (ECS). Beyond the extended continental shelf is what is called the high seas or international waters, where no state has an exclusive or sovereign right but is owned by all states as common heritage of mankind.
A territorial sea stretches for 12 nautical miles from its baseline, or the low-water line along its coast. States have full sovereignty over its territorial waters, subject only to the right of innocent passage from the ships of other states. An exclusive economic zone stretches for 200 nautical miles, where states have exclusive sovereign rights regarding the exploration and use of marine resources. An extended continental shelf can stretch for up to 350 nautical miles, where states have sovereign rights regarding the exploration and exploitation of natural resources including oil and gas deposits as well as other minerals and biological resources of the seabed.
China claims that it has sovereign and historic rights over the waters in the South China / West Philippines Sea. Justice Carpio disproves such claim by showing China’s own maps and diplomatic statements that shows China’s southernmost territory is in the Hainan Province and not in the James Shoal, a low-tide elevation feature nearest to Malaysia.
China also claims that the case before the PCA is improper because the dispute in the Spratly Islands and other reefs in the South China / West Philippine Sea involves territorial disputes. Justice Carpio explained the basis of the Philippines’ claim, which was upheld by the PCA on the issue of jurisdiction last October 29, 2015.
A dispute between states is territorial if the land involved is considered as a rock or an island under the UNCLOS. A rock or an island is a naturally formed area of land, surrounded by water, which is above water at high tide. A rock cannot sustain human habitation or economic life on its own while an island can. Rocks generate a territorial sea but not an EEZ or ECS while islands generate a territorial sea, EEZ, and ECS.
The dispute between Philippines and China is not territorial since the PCA generally found that the islands and reefs involved in the dispute are not rocks or islands but low-tide elevations, which is a naturally formed area of land above water at low tide but submerged at high-tide.
SECURITY Implications
Aside from depriving the Philippines of its legal rights over its EEZ and ECS, Justice Carpio also discussed the foreign and national security implications if China maintains “sovereign” rights over the 9-dash line.
Over the past few years, China has been reclaiming the islands and reefs in the South China / West Philippine Sea. China has been building military airstrips and facilities in the Spratly Islands such as Subi reef, Mischief reef, and Fiery Cross reef. China’s base in the Mischief reef in particular would allow China in blocking the Philippines from resupplying and retrofitting its grounded ship, the Sierra Madre, in Ayungin Shoal.
Justice Carpio opines that China is looking at strengthening its hold in the Spratlys to give it better access to the Bashi Channel, a waterway between the Philippines and Taiwan that exits into the Pacific Ocean from the South China / West Philippine Sea. This is allegedly to allow China an alternative route from the Taiwan Strait into the Pacific Ocean so it can position its nuclear submarines and warheads from a position that can reach the United States in case of a nuclear war.
However, the biggest security implication to the Philippines would be the proximity of Chinese troops and aircrafts to Palawan and the western coast of Luzon.
ENVIRONMENTAL Implications
China’s reclamation projects, as justified by its 9-dash line, in the Spratlys spells a big disaster for the marine ecology in the South China / West Philippine Sea and beyond.
Justice Carpio shocked the audience by discussing how China’s reclamation projects in the 7 reefs in Spratlys affect not only the 7 but also 10 other reefs in the area, or 17 in total. He explains how China had to dredge up material from the 10 other reefs to be able to build the artificial islands and airstrips in the 7 reefs it has reclaimed.
Justice Carpio went on to explain the ecological history and importance of reefs in the South China / West Philippine Sea. The reefs of an atoll like Mischief Reef for example take 30 million years to form. The reefs have been destroyed by Chinese dredging ships, which crush the coral reefs to pile it up to form an artificial island.
Coral reefs are diverse underwater ecosystems held together by calcium carbonate structures secreted by corals. Coral reefs are built by colonies of tiny animals found in marine waters that contain few nutrients. Often called “rainforests of the sea”, shallow coral reefs form some of the most diverse ecosystems on Earth. They occupy less than 0.1% of the world’s ocean surface, about half the area of France, yet they provide a home for at least 25% of all marine species. (credits: Wikipedia)

 

Justice Carpio supports the establishment of an International Marine Peace Park in the Spratly Islands just so that the international community can preserve its marine ecological importance. He emphasized that all countries would benefit from such proposal since a lot of fish and other marine animals in the oceans come from nesting grounds in the Spratlys.

 

 

                                       By Attorney Jesus Falcis, HAPI Legal Adviser
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