By Justice ANTONIO T. CARPIO
Former Senior Associate Justice, Supreme Court of the Philippines
Why is the South China Sea important?
Today the South China Sea is one of the most important international waterways in the world. About $5.3 trillion in ship-borne goods traverse the South China Sea every year, four leading exporting countries use the South China Sea for their maritime trade.
You have China, you have Japan, South Korea, and Taiwan, about 65% of the petroleum imports of South Korea, 60% of the petroleum imports of Japan and Taiwan passed through the narrow strait of Malacca on the way to these countries.
And today 50% of the petroleum imports of China pass through the narrow state of Malacca going to China. But before 2015, 80% of the petroleum imports of China passed through the narrow strait of Malacca.
And China was always worried that someone might block this narrow strait and the Chinese economy will grind to a halt. So China built two pipelines, one for oil and the other for gas from the coast of Myanmar to Kunming in Yunnan province and these pipelines started operating in 2015.
So today, 30% of the petroleum imports of China pass through these two pipelines, and only 50% pass through the narrow strait of Malacca. About 12% of the total annual fish catch of the world comes from South China Sea.
Rich in fishery
The South China Sea is very rich in the fishery. It’s a very small sea. It comprises only about 2.5% of the ocean surface of the world but it accounts for 12% of the annual fish catch because of the Spratlys.
The Spratlys are an extensive collection of atoll—atoll reefs and the Spratlys are where the fish spawn—they lay their eggs there and the eggs and larvae of the fish that spawn here are carried by currents to the coast of China, Vietnam, Luzon, Palawan, Sulu Sea.
The coast of Indonesia here in the Natuna, the coast of Borneo, Vietnam and that’s why we have a lot of fish in the South China Sea. If you remove the Spratlys you will not get as much fish as you have now in the South China Sea. The South China Sea is also rich in methane hydrates.
What are methane hydrates? There are lumps of minerals found at the bottom of the sea. At the bottom of the sea where the temperature is very cold and the pressure is very strong, ice crystals form around natural gas, so natural gas is encapsulated in ice crystals and there’s now a technology to extract this natural gas.
Methane hydrates are estimated to be more abundant than oil and gas combined. The world reserves of methane hydrates are more than the combined reserves of oil and gas in the world. And China has estimated that the methane hydrates in the South China Sea could power the Chinese economy for 100 years at least.
So China now is testing here on the coast of Guangdong, a pilot area where they are extracting methane hydrates. China is a technology to extract natural gas from methane hydrates. The US has the technology and Canada has the technology and Japan also has the technology.
$5.3 trillion goods pass thru the South China Sea
The South China Sea is now a very important international waterway. Of the $5.3 trillion shipborne goods that pass through the South China Sea every year, about $1 trillion of that is US inbound and outbound trade. And another $1 trillion is European Union inbound and outbound trade.
So these countries outside of the region have an interest in maintaining peace and stability in the South China Sea because their exports and imports pass through the South China Sea.
The South China Sea is also dotted with hundreds of small rocks above water at high tide. If the rock is only an inch above water at high tide it’s considered still land or territory entitled to a territorial sea of 12 nautical miles all around.
A rock with 155,000 hectares equivalent surface
What is the surface area of that? That’s about 155,000 hectares. How large is 155,000 hectares? That’s more than twice the land area of Metro Manila, more than twice the land area of Singapore.
So if you own a tiny rock—one inch above water at high tide in the South China Sea you own everything within the territorial sea you own all the fish, oil, gas, and mineral resources. So a tiny rock in the middle of the South China Sea is very valuable.
So that countries now fight over these small rocks and that’s why we have the South China Sea dispute. Because those rocks are very valuable even if you cannot grow a single tree in that rock, it still has a 12 nautical mile territorial sea around that and that’s a huge area.
Also even if the rock is submerged at high tide it is still a value. In the proceedings at The Hague, we showed to the tribunal Pagasa, that’s our largest island in the Spratlys and we told the tribunal that Pagasa being above water at high tide it’s about 45 hectares in area, it has a territorial sea around it—12 nautical miles but in this area, there is a low tide rock here and under UNCLOS a low tide rock can be used to measure the 12 nautical miles. (see page 9)
So if you measure the 12 nautical miles from this rock, then we have an extended here—our territorials are more than 12 nautical miles from the coastline of Pagasa because we’re measuring it from this rock—that is low tide. That rock is not land it is not territory because it’s submerged at high tide but you can see it at low tide that’s why it’s called the low tide rock.
It still has value because it can extend your territorial sea and the tribunal upheld us. And that’s why the tribunal said Subi Reef is part of the territorial sea of Pagasa because if you measure the 12 nautical mile territorial sea from this rock Subi reef is part of the territorial sea. If it’s measured from the coastline here of Pagasa, Subi reef is outside our territorial sea.
But UNCLOS allows that under Article 13 part of 1, we can use this as our baseline—the low tide rock. Now China did not participate in the proceedings of The Hague, but China submitted a position paper. China said, we’re not participating but this is our position—and this is—in that position paper, China said, we own the South China Sea because we owned it since 2000 years ago.
We were the first country to discover, name, explore, and exploit the resources of the South Sea Island. This is the historical narrative of China why they are claiming the South China Sea as theirs. And this historical narrative has been taught to every Chinese citizen from grade school to college.
So every Chinese general, admiral Politburo member, diplomat, professor, businessmen, bureaucrat—they have been taught this historical narrative and they sincerely believe it—they sincerely believe that they own the South China Sea since 2000 years ago.
They were the first to discover, name, explore and exploit—this historical narrative is totally false. I call this the fake news of the millennium—the fake history of the millennium. It’s totally false and we will—I will prove it here.
Now in 2009, China submitted this map to the United Nations, this is called the nine-dash line map of China. And the note verbal that accompanied this map, China said, we own everything within the nine-dash line and the tribunal of The Hague said it is only from this the date that the world was notified of China’s claim. (see page 9 map)
Although the nine-dash line map was made by China in 1947, it was only distributed within China and it did not bind the world.
From 2009, when this was submitted to the UN, was the time when countries should object and we objected to this map we protested—China does not own the waters within the nine-dash line.
And Indonesia protested. Vietnam protested, so many countries protested. Now in 2013 China published a new map, which is called the vertical map because the orientation is vertical—and in this map, China added the 10th dash on the eastern side of Taiwan. So the nine-dash lines are still growing up to today—there are ten dashes now but I still call it the nine-dash line.
In this map, if you look at the legend of the map, this shading which means national boundary is the shading you find in the ten dashes—the same shading on the continental land boundary of China.
So China treats the waters within the ten dashes here, in the same way, it treats its territory here-it’s land territory. China treats the waters as its national territory and we protested also this map.
Now let’s go back to a little bit of history, what happened in the South China Sea from 1946 to 2017. Before World War II, the southernmost territory of China was Hainan.
No Chinese sailors
Not a single Chinese sailor or soldier was stationed in the South China Sea, none in the Paracels. None in the Spratlys. None in Scarborough Shoal.
Throughout the Chinese dynasties, the southernmost territory of China was Hainan. China never occupied any of the territory islands in the South China Sea. Now, when did China move out of the Hainan?
Before World War II—just before World War II, the Japanese seized the Paracels from the French. The French occupied the Paracels at that time. Japan also occupied Itu Aba, the largest island in the Spratlys and Japan put up a submarine base in Itu Aba.
That submarine base was used in the invasion of the Philippines with the defeat of the Japanese forces.
The Japanese forces left the South China Sea, China made its move.
In 1946, after World War II, when the Japanese forces left the South China Sea, China seized half of the Paracels, the other half of the Paracels was recovered by the French and inherited by the South Vietnamese government.
China seized Itu Aba in 1946
Also, in 1946, China seized Itu Aba the submarine base of the Japanese. So China made a great leap in 1946 from Hainan to the Paracels, and to the Spratlys.
In 1974 towards the dying days of the Vietnam war, China seized the other half of the Paracels from the South Vietnamese government, which was very weak at that time already.
There was a battle there—the battle of the Paracels. In 1987, China put up a radar weather station on Fiery Cross Reef.
In 1987, UNESCO was conducting a global oceanic survey, and China volunteered—China said, we will help UNESCO, we will put up a radar weather station on Fiery Cross reef to help UNESCO and it was a very noble act nobody objected everybody applauded China.
Today, the Fiery Cross Reef is an air naval base of China.
China seizes Subi Reef in 1988
In 1988, China seized Subi from the Philippines. We did not even notice it—it was not reported in the newspapers in Manila.
We were not familiar then with the UNCLOS but China seized Subi Reef and at the same time China sees Johnson South Reef from the communist Vietnamese and there was a skirmish in Johnson South Reef between the Vietnamese and the Chinese and about 69 Vietnamese sailors were killed in that skirmish.
China seizes Mischief, Scarborough Shoal, Sandy Cay
In 1995, China seized Mischief Reef from the Philippines. That was widely reported in the papers in Manila; 2012, China seized Scarborough Shoal from the Philippines, widely reported also; and 2013, China seized Luconia Shoals from Malaysia.
Luconia Shoals is just 54 nautical miles from the coast of Sabah; in 2015 and 2016, China started building air naval bases on its seven geologic features in the Spratlys. China started reclaiming those geologic features, creating artificial islands.
In 2017, China seized Sandy Cay from the Philippines. China seized it by surrounding Sandy Cay with its maritime militia vessels. The same way that it seized Scarborough Shoal from the Philippines. China surrounded it with their vessels—their coast guard vessels and their maritime vessels, and that’s how they seized Sandy Cay from the Philippines.(see page 9 map)
Sandy Cay near Pagasa
Sandy Cay is just two nautical miles from Pagasa, our largest island in the Spratlys. But the Duterte administration is still in denial. The Duterte administration does not accept that—or does not tell the Filipino people that we have lost Sandy Cay to the Chinese.
So if you look at these developments from 1946 to 2017, you will see a creeping expansion by China in the South China Sea and that is exactly what happened from 1946 to 2017.
In February 2016, a few months before the tribunal issued its ruling in July 2016, the Chinese Foreign Minister Wang Yi gave a talk in Washington DC at the CSIS, which’s the leading think tank in Washington DC.
Before diplomats from all over the world, Foreign Minister Wang Yi said, China and the Philippines are very close neighbors, separated by just a narrow body of water. China and the Philippines are very close neighbors separated by a narrow body of water. Think of that. How can we be very close neighbors separated by just a narrow body of water?
This is it, since the nine-dash line constitutes the national boundary of China—China owns all of the waters to the west and we are left with this sliver of water as our territorial sea and exclusive economic zone.
So from Balabac Island, our southernmost island facing the South China Sea Chinese territory is just 64 kilometers away. From Bolinao in Pangasinan, Chinese territory is just 70 kilometers away from Y’ami Island, our southernmost territory in the Batanes, Chinese boundary is just 44 kilometers away.
This is the historical narrative that has been taught to every Chinese citizen. So when President Xi Jinping came here last November 2018. Before his actual arrival, the ambassador of China, Ambassador Zhao wrote an opinion piece in Philippine Star.
He wrote—it appeared on Nov. 15, 2018, and in that opinion piece his opening sentence said—stated that, being separated by only a narrow strip of water, China and the Philippines have been close neighbors for centuries. So this is the historical narrative again this according to Ambassador Zhao is the context of the visit of President Xi Jinping to Manila.
Since the Philippines and China are very close neighbors, President Zhao is visiting the Philippines and this was officially published in the Philippine Star and I asked the Star editors who provided this picture and the editor said, Ambassador Zhao.
The subtle message of the Chinese is that President Duterte and the entire cabinet agree that the Philippines and China have been very close neighbors for centuries. Separated by only a narrow strip of water. The Duterte administration never contested this never objected to this.
So President Xi finally arrived in Manila and when he arrived he published an opinion piece on a full page in Manila Bulletin and Philippine Star and in that full-page ad was entitled “Open Up New Future Together for China-Philippines Relations”, and in his opinion piece, President Xi said, over 600 years ago, Chinese navigator Zheng He made multiple visits to Manila, Visayas, Sulu on his seven overseas voyages.
So President Xi was telling everybody in the Philippines that the Chinese were here in Manila over 600 years ago. Why did President Xi say this? Because last year, 2019 the Spaniards celebrated the 500-year departure of Magellan from Spain to the Philippines.
Magellan left Spain in 1519 and two and a half years later he arrived in the Philippines in 1521, so next year 2021 we will be celebrating the 500 year anniversary of Magellan and the arrival of Christianity. But President Xi is saying “No we were ahead. We were in the Philippines 600 years ago.”
The Spaniards arrived 500 years ago only. President Xi is saying—we were ahead of the Spaniards by over a hundred years so the Chinese are saying, “we were the first to discover the Philippines and the consequence of that is—since we were the first to discover, the islands in the Philippines belong to us.
But, they will say, “We are generous. We will not recover Luzon, Visayas, and Mindanao but, we will keep the Spratly Scarborough Shoal, that is the message of President Xi. But this narrative is totally false. Zheng He never visited the Philippines. That’s the article of President Xi in the Philippine Star, that’s in Manila Bulletin.
Now there is an international Zheng He Society and they have a branch in Singapore. These are composed of scholars, and in 2005, the Singapore Zheng He international society published a book, “Admiral Zheng He and Southeast Asia” and one of the article in that book was written by Professor Hsu and the title of his article is, “Did Admiral Zheng He Visit the Philippines?” Professor Hsu said, Zheng He never visited the Philippines.
The word Chan Cheng was actually a Ming Dynasty name for a Malaystate in Indo-China. They thought that Chan Cheng refers to Luzon.
But Professor Hsu said Chan Cheng is a Ming Dynasty name for a Malaystate in Indo-China. Was there a Malaystate in Indo-China? Yes, The Champa Kingdom. The Chams were descended from the Austronesians. We Filipinos are descended from the Austronesians. We speak a language—Tagalog is derived from the Austronesian language, and the language of the Chams was also derived from the Austronesian language.
And the Chams put up a powerful maritime kingdom in Central Vietnam. This was before the arrival of the Europeans in the South China Sea. So this was before the 1400s before the 14th century. The Chams were so powerful that the South China Sea was called the Cham Sea.
The first name ever given to the South China Sea was the Cham Sea because the Chams was a powerful maritime kingdom in Central Vietnam facing the Cham Sea. Last December, I visited the Da Nang in Central Vietnam and there is in Da Nang a Cham Museum and one of the books sold there is this book, and the book says, that the name Zhan Cheng comes from the Champapura that means “the town of Champa.”
And the inhabitants of the Champa Kingdom were the Chams and they were the Cham language fell under the Austronesian umbrella. The Chams were distant cousins because they were Austronesians just like us.
So Zheng He actually visited Central Vietnam and Chan Cheng is in Central Vietnam not in the Philippines. Now, there is a Chinese scholar, he works in the People’s Republic of China, the Naval Hydrographic Institute.
He wrote an article in the International Hydrographic Review in 1988 and he traced the root of the voyages of Zheng He from China to Central Vietnam all the way to the Strait of Malacca.
Here is the Philippines, so Zheng He never even saw the coastlines of the Philippines and this is from a Chinese scholar who works in the People’s Republic of China. Now in 2018, National Geographic Magazine published an article on the 7 Voyages of Zheng He and that article contained a chart of the voyage of Zheng He, the nautical root of Zheng He.
And it follows the same route—from China he went to Central Vietnam through the narrow Strait of Malacca. The Philippines is here. So, Zheng He never visited the Philippines. In fact, all the scholars all over the world are unanimous. Zheng He never visited the Philippines.
Now the largest island in the Spratlys is Itu Aba. It’s about 45 hectares compared to Pagasa. Pagasa by the way is 36 hectares only.
So this is occupied now by Taiwan. The issue in the arbitration is—is this island capable of human habitation of its own? Because if it’s capable of human habitation of its own it is entitled to a 12 nautical mile territorial sea plus an extended continental shelf up to 200 nautical miles.
Now if this island is not capable of human habitation of its own then none of the islands in the Spratlys would also be capable of human habitation of its own and therefore, all islands in Spratlys will be entitled only to 12 nautical mile territorial sea. China has declared that Itu Aba is capable of generating 200 nautical miles EEZ.
So that EEZ will overlap with the EEZ of Palawan and there will be an overlapping EEZ and therefore since China made a reservation in 2006—that in case of overlapping EEZ’s China will not be, subjected—will not submit itself to compulsory arbitration.
And therefore since this island has an EEZ, the tribunal of Hague has no jurisdiction over the case. The issue of whether Itu Aba is capable of human habitation of its own or not was crucial in the case. Because if it’s capable of human habitation then, its EEZ of 200 nautical miles would overlap with the EEZ of Palawan and therefore the tribunal has no jurisdiction because this island is just over 200 nautical miles from Palawan.
Now, what was the ruling of the tribunal? The tribunal said, to determine whether an island is capable of human habitation or not, you must look at its natural condition whether it can sustain a stable community of people, and in Itu Aba people can live there because Taiwan has put up two desalination plants.
People can gather—there are vegetable gardens there, there are fruit trees there because Taiwan imported garden soil from Taipei and placed it up in Itu Aba so you can plant fruit trees there now in Itu Aba. But the tribunal said that will not count because you must look at the natural condition. And the tribunal said it is a natural condition, it’s a borderline case whether Itu Aba can support a stable community of people.
There is water when there is rain, but when there is no rain you don’t find water in Itu Aba. The topsoil is very thin so it’s a borderline case. And in that case, if it’s a borderline case you must look at the historical presence of people in Itu Aba. The people actually inhabit Itu Aba in the past. There is no record whatsoever—none.
So the tribunal said since there has been no record of human habitation in Itu Aba, then it’s probably because Itu Aba is not capable of human habitation of its own. So, the ruling was Itu Aba, the largest island in the Spratlys is not capable of human habitation of its own and therefore it has no EEZ it is only a territorial sea.
And that was the reason why the tribunal said, we have jurisdiction. Because there is no overlapping EEZ between Palawan and any of the features in the Spratlys. Let’s go to Scarborough Shoal, that’s Scarborough Shoal—just a piece of rock that’s at the high tide that’s the only thing you can see. So, it’s a high tide elevation—it’s above water high tide—so it’s land, it’s territory.
China says it’s capable of human habitation of its own and it’s entitled to 200 nautical miles Exclusive Economic Zone and we said, of course not—it’s so obvious, it’s not capable of human habitation.
Not a single blade of grass grows there. You cannot squeeze a single drop of freshwater. And so the tribunal agreed with us, that Scarborough Shoal is just a rock.
It’s entitled to 12 nautical miles territorial sea but—that’s all. It cannot generate an Exclusive Economic Zone–the tribunal of course said that under UNCLOS a coastal state can claim 12 nautical miles of territorial sea, and if there’s space an additional 188 nautical miles or a total of 200 nautical miles from the coastline, and if there are space another 150 nautical miles. So the maximum that the state can claim under UNCLOS is 350 nautical miles.
China is claiming more than 350 nautical miles. China is claiming Reed Bank which is about 800 nautical miles from Hainan. So the claim of China to waters within the nine-dash line beyond 350 nautical miles has no legal basis. That’s the ruling of the tribunal. Every state in the world, every coastal state can claim only up to 350 nautical miles—12 nautical miles territorial sea, 200 nautical miles EEZ measured from the coastline and an additional 150 nautical miles measured from the edge of the EEZ.
That’s all—you cannot claim beyond that because that’s UNCLOS, that’s the law of the sea and so we were very confident that the tribunal would uphold us in our position that the nine-dash line has no legal basis at all to claim waters beyond what is allowed under UNCLOS. But our problem was, we knew that the problem would be, how to enforce the ruling.
Because the Chinese people have been taught historical narrative that they own the South China Sea. And the Chinese government will not comply with the ruling because the Chinese people will say, why are you giving away territory that has been handed down to us by ancestors? These are sacred waters—sacred territory—sacred islands.
So the Chinese government would not comply, otherwise, the Chinese people might throw them out. So we had to ask the tribunal, kindly rule on whether that historical narrative of China is true or false, whether there is factual basis for that historical narrative.
Thankfully, the tribunal obliged—so we raised this issue. As a matter of fact, did China have historic rights? We’re talking of history now not a legal basis. So how did we convince the tribunal that China never had historic rights? Well, we presented over 170 ancient maps the most number of maps submitted in any international arbitration, and represented maps of the Chinese Dynasties which China cannot disown. We presented Philippine maps and maps of other Southeast Asian countries and represented European maps of Asia made by European cartographers. And we presented official documents of China after the Qing dynasty.
So let’s go to the maps. For the Philippines, I will present only one map the most important map of the Philippines. This is the 1734 Murillo Velarde map and this map is the first map to give a name to Scarborough and that name is Panacot.
This is the first map that gave a name to Scarborough Shoal and that name is a Tagalog word Panacot. Why Panacot? Panacot means danger, if you are the captain of a ship and you don’t know where Panacot is, your ship could hit the rocks of Panacot and your ship will run the ground. And that is what happened to a British tea clipper ship called Scarborough it ran aground on the rocks of Panacot and the European cartographers renamed the shoal—Scarborough Shoal.
China became a republic after the end of the Qing Dynasty, 1912 and as a republic, you must have a constitution and China had several constitutions. Their first constitution—Provincial Constitution in 1914, defined their territory because you must define your territory in your constitution.
The territory of the Republic of China continues to be the territory of the former empire the People›s Republic of China interpreted the former empire to refer to the Qing Dynasty territory. China made that declaration in China No. 2, History Archives, China International Press.
Largest expansion of Chinese territory
That’s in the 1980s because at that time China was trying to prove to the world that Tibet forms part of China and during the Qing Dynasty, Tibet was part of China.
So China, according to the People’s Republic of China that published this, the former empire refers to the Qing Dynasty, because the Qing Dynasty was the largest expansion of Chinese territory in history.
That was the largest expansion of Chinese territory. It included Tibet. It included Xinyang. But unfortunately for China, the southernmost territory of China during the Qing Dynasty was Hainan. So that is the constitution of China. Their territory is the territory of the Qing. The territory of the Qing never went further south than Hainan.
Territory ends at Hainan
The next constitution of China, the constitution of 1924, the same. The territory of the Republic of China continues to be the traditional territory, which means the territory of the Qing. That territory ended in Hainan as the southernmost territory of China. 1937 constitution of China still the same, the territory of the Republic of China continues to be the territory it owned in the past. And their largest expansion was during the Qing dynasty.
Jan. 1, 1947, the last constitution of China still the same, the territory of the Republic of China are those encompassed with traditional boundaries. In their own constitutions, China said our territory referred to the territory of the Qings–the Qing dynasty but that territory ended in Hainan.
China suffered what they called the century of national humiliation because starting in the 1820s toward until the end of the 1800s foreign powers from Europe and even Japan and Russia occupied territories of China. You have the British, you have the Portuguese.
The Chinese suffered a lot of humiliation. They were defeated in several wars with the European powers. So their people drew maps, they called this map, “Map of China’s National Humiliation”. Their people said, “When China becomes strong again, we will recover all the territories that we lost to the foreign powers.”
And they drew lines around China and said, we will recover everything within the lines. They included other territories that they never owned in the past. They would get even Borneo—part of Borneo, they would get Cambodia, Vietnam. These were drawn by private citizens. But it was circulated widely within China.
In the map of the national humiliation of 1926, China never included the Spratlys or Scarborough.
They never thought that they lost the Spratlys or Scarborough because they never thought they owned the Spratlys or Scarborough. But you will see here they included the Sulu archipelago as part of the territory to be recovered.
Sultan of Sulu
Why? Because in 1417, the Sultan of Sulu, Sultan Paduka Batara left Sulu on a grand voyage to China. He brought with him his wife, his children, his large entourage and they sailed to China and brought gifts to the emperor. It was like a grand tour and probably he brought south sea pearls.
And the Chinese saw it and they said, that Sultan is now a vassal of the emperor because he was given a tribute—he was giving a tribute to the emperor. So they included the Sulu archipelago as part of the territory of China to be recovered. Because Sultan Paduka went there giving a gift but they interpreted it—the Chinese interpreted it, as a tribute as a vassal.
It’s very dangerous to bring a gift to China, to the Chinese Emperor or Chinese leader, because they will consider that as a tribute and you become a vassal. When you give something, you have to qualify and clarify that it’s just a gift it’s not a tribute.
Later, Sulu was excluded
Here is another Map of National Humiliation, the 1938 map. Thankfully, they excluded the Sulu archipelago but still, they never included the Spratlys or Scarborough Shoal. In their wildest dreams, they never thought that Spratlys or Scarborough should belong to them. They never included the Spratlys or Scarborough Shoal in their Maps of National Humiliation.
This map was taught to elementary school children and that’s why the Chinese really believed that they owned the South China Sea, because this includes South China Sea.
Now in 1943, while the civil war in mainland China was going on between the communists and the nationalists the Kuomintang—the Kuomintang was in control of the government and the Ministry of Information of the Republic of China at that time in 1943 published a handbook. The Kuomintang was trying to introduce the Republic of China to the world so, they published a China handbook and of course if you introduce yourself to the world, you have to state your territory.
In Chapter One of that handbook, China said, “Our territory extended to the parcel group, Triton Island is the southernmost territory.
In that 1943 handbook, China never claimed the Spratlys or Scarborough Shoal. They said, “our southernmost territory is the Paracels. Their own document—official document–the handbook was revised in 1946, they published a revised edition of the book. And it is in this handbook, the 1946 handbook which was actually published in 1947 but it contains a supplement of 1946.
It is in this handbook that China claims sovereignty over the Spratlys, they call it the Coral Islands but at the same time, China admitted that the Coral Islands are contested among China, the Commonwealth of the Philippines, and the French in Indo-China.
China did not claim indisputable sovereignty over the Spratlys; this is 1946. China said, yes we’re claiming the Spratlys but it’s also claimed by the Philippines, by the French in Vietnam, so they never claimed indisputable sovereignty.
That’s the handbook 1940. It was released in 1947 but there is a 1946 supplement so you either call it 1946 or 1947. Published in New York because with the ongoing Civil War, they didn’t have a good printing press in China.
Nine-dash line map published in 1947
In 1947 China made this map, this is the infamous nine-dash line map and China circulated this internally among the Chinese government offices for validation. In February of 1948, China released this domestically, in China. In this map, the nine-dash line map, China now gave a name to all the features in the Spratlys but they just copied the names in British charts.
They did not give original names and they included Scarborough but they did not have a name for Scarborough Shoal. We are now in 1947 and China still didn’t have a name for Scarborough Shoal. China used this China Sea Directory, published in 1906 by the UK and given the same names Luconia Shoal, that’s the British name, transliterated it to Chinese Lu-kang-ni-a. James Shoal transliterated it to Zengmu tan.
Scarborough was originally Panacot
So China just copied the British names; they were not the first to give names to the Spratlys and of course, in Scarborough we gave it a name in 1734, Panacot. The Europeans renamed it Scarborough Shoal after the Scarborough ship ran aground in 1748.
1947: China still had no name to Scarborough Shoal. If you go to the Spratlys in the Paracels you will see these sovereignty stone markers. These are stone markers which says, “China was here in 1901”. “China was here in 1902”. The Chinese point to these markers as evidence that they own these islands.
Totally fake markers
These sovereignty markers in the Paracels in the Spratlys are totally fake.
In 1987, the province of Guangdong published a book, a compilation of the names of all the islands in Nan Hai South Sea explaining why they named these islands the way they were named.
This book has a very interesting Annex and Editor’s Note part of the book. As a background in 1937, June, China announced that China was sending this guy, Huang Qiang to the Paracels to check if the Japanese have established bases in the Paracels and to assert Chinese sovereignty over the Paracels, that was the announcement.
But actually, Huang Qiang had this secret mission and he made a report of his secret mission, a confidential report of July 1 because he went there June so he wrote this report July the following month and in his report, he said, “I placed these stone markers in North Island it says they’re commemorating the inspection of 1902. In Woody Island, commemorating the inspection of 1911.
Markers done in 1947 for 1901 inspection
He was planting these antedated stone markers in 1937 and he placed these markers in about 24 places in the Paracels.
He was there in 1937, he was planting markers commemorating the inspection of 1901, so these are antedated.
When China published the book—when the Guangdong province published this book, a lowly clerk saw this confidential report and decided to include it as an annex to the book. The confidential report became part of the book, by mistake.
I was alerted by a friend of mine Franco Javier Bonnet who has written extensively on the South China Sea, he’s a French scholar.
He said, all of these stone markers in the Spratlys and in the Paracels are fake. So I said, I must have a copy of this book and so I asked a friend of mine who frequented Manila and Beijing on business to look for a copy of this book in secondhand bookstores in Beijing and he was able to secure to buy one copy.
He scoured all the bookstores in Beijing and found one copy and I have that copy and this is a picture of that book and I guess I suppose that after we published this, the Chinese government I understand recalled all copies of the book. This is a very rare book now.
The stone markers in the Paracels are fake and the Chinese cannot deny this because it’s there in their own publication. How about the stone markers in the Spratlys? On page 291 of the same book, there is an Editor’s note, that the stone tablets on two islands—West York Island and Spratlys Island might have been erected by the Taiwanese navy in 1956. Not in 1946 as the stone tablets indicate.
The stone tablets in West York Island says, “Erected in December 1946”. The stone tablet in the Spratly says “Erected in December 1946”.
Where they really erected in 1946? In 1946, after the Japanese forces left, Itu Aba, the Kuomintang government sent a ship to the Spratlys, the Taiping. It was a US ship donated to the Kuomintang and they renamed it Taiping.
And the captain of the ship went only to Itu Aba and he planted the marker there, but he never went to West York Island in 1946. He never went to Spratly Island. When he saw the book saying that there are stone markers there in the Spratly Island and in West York Island planted in December 1946, he went to the editors of the book.
The only genuine marker is in Itu Aba
The editors of the book are professors in Guangdong universities and he said, “I was the captain of that ship that went to Itu Aba in 1946 in December. We never put up any stone tablets in West York Island or in Spratly Island, we put up one only in Itu Aba.”
So the editors said, they placed a note, those stone tablets might have been erected by the Taiwanese navy in 1956, not in 1946.
Why 1956? Because as I said, after the defeat of the Japanese forces in 1945, the Kuomintang took possession of Itu Aba in 1946, but they left Itu Aba in 1949-1950 because the Chiang Kai-shek forces, the nationalists, fled the mainland to Taiwan and Chiang Kai-shek recalled all the troops to help defend Taiwan against what they expected was a communist Chinese invasion of Taiwan.
So they left and they returned only in 1956 as a Taiwanese navy now, that’s why the editors put that editor’s note and when they returned they probably erected those stone markers in West York Island and Spratly Island and put the date there, December 1946, antedated. It’s very clear those stone markers are totally fake.
Now, just before we filed our case against China with the UNCLOS tribunal at The Hague, I visited the Chinese Manila website, the Chinese Embassy website in Manila and I saw this, in that website, this is the screenshot China said, “we were the first to discover Huangyan”. That’s Scarborough Shoal for them.
In 1279, because in 1279, Guo Shoujing put up an observatory in Huangyan Island upon instruction of Kublai Khan.
Guo Shoujing mission
Guo Shoujing was the Leonardo da Vinci of China at that time. He was a brilliant mathematician, engineer, he was an astronomer and he built canals for China and Kublai Khan instructed him, make an accurate calendar because we want to know when the four seasons will end and start.
Guo Shoujing put up observatories—astronomical observatories, 26 on mainland China and 1 in Nan Hai, 1 in the South Sea.
Where in the South Sea did he put up his observatory?
This screenshot says, the Chinese Embassy in Manila says, he put it up in Scarborough Shoal—Huangyan Island. However, in 1980 when Vietnam and China were quarreling over the sovereignty of the Paracels, the Vietnamese had very strong records—story records that they own the Paracels.
China pulled a rabbit out of its hat and said, we have an older title to the Paracels because in 1279 Kublai Khan ordered Guo Shoujing to put up an observatory in the Paracels.
Remember Kublai Khan put up 27 observatories—26 on mainland China and 1 in the South Sea were in 1980. The Chinese were saying that was in Xisha or what is internationally called the Paracels and they published this in Beijing Review, official publication of the Ministry of Foreign Affairs of China.
The astronomical observation point Nanhai was in today’s Xisha Islands that it shows that Xisha Islands will be in the bounds of China at the time of the Yuan dynasty.
Paracels and Scarborough are 380 miles apart
So they said Guo Shoujing put up the observatory in the Paracels. Today, the Chinese are saying Guo Shoujing put it up in Scarborough Shoal. The Paracels are 380 nautical miles away from Scarborough Shoal–it’s very far.
The brilliant guy Guo Shoujing could not have made a mistake. If he put it up there in Paracels, he could not have put it up in Scarborough Shoal.
Now, of the 26 observatories that Guo Shoujing put up in mainland China, one still exists today in Henan province and this is it—a huge 12.6 meter high. There’s a sundial here massive bricks could he have put it this observatory on the rocks of Scarborough Shoal.
Now the rocks of Scarborough Shoal are very small maybe three meters high above water at high tide. Maybe at most 10 people can stand on it. Could he have put it here. If you superimpose the astronomical observation point in Henan it would look like that.
He could not have placed it there, impossible. So legally China cannot now say that Guo Shoujing put up the observatory in Scarborough Shoal because they used that argument against the Vietnamese in 1980.
Physically, it’s also impossible; they could not have put it up there.
So the (Hague) tribunal said China never had historic rights in the South China Sea. They cannot identify—the tribunal is unable to identify any evidence that would suggest that China historically regulated or controlled fishing in the South China Sea.
Scarborough Shoal—huge 150 square kilometers in the area. Now, who owns Scarborough Shoal? We all know that in the Treaty of Paris of 1898, Spain ceded the Philippines to the US for $20 million.
The Treaty of Paris contained these lines—the treaty lines of the Treaty of Paris and Spain ceded to the US everything within the lines for $20 million. Unfortunately, Scarborough Shoal is outside the line. The Spratlys are outside the lines, a big problem for us.
So Chinese Foreign Minister Wang Yi in his lecture at CSIS in Washington in February of 2016 before diplomats from all over the world said, the Philippine territory is regulated by three treaties—the Treaty of Paris of 1898, the Treaty of Washington of 1900, and the treaty of 1930 with the British.
And there is a line in those treaties everything to the East was ceded but to the West, they were not ceded and Wang Yi said, Nansha the Spratlys and Huangyan Scarborough Shoal are all in the West of 118 degrees, they are outside the treaty lines.
So the Philippines does not own these islands. So how do we answer that? We answer that by going to the second treaty of Washington of 1900. After signing the Treaty of Paris the Americans came here and they found out there were many islands outside the treaty lines.
In the Batanes, we have the Scarborough Shoal, and then Sulu archipelago, Mapun Island, Turtle Island—they were all outside the treaty lines. So they went back to the Spaniards they said, hey let’s clarify there are still many islands outside the treaty lines can we clarify that these islands were also, ceded to us?
And the Spaniards said, no we will not sign. And the Americans said, we will pay you an additional $100,000 and the Spaniard said, yes we will sign.
Treaty of Washington shows Scarborough belongs to PH
So the Treaty of Washington was signed and Spain clarified that it had all relinquished to the US “all titles and claims of title which (Spain) may have had at the time of the conclusion of the Treaty of Peace of Paris, to any and all islands belonging to the Philippine Archipelago, lying outside the lines”.
Any and all islands belonging to the Philippine Archipelago lying outside the lines are also ceded to the US for an additional $100,000. The Treaty of Washington is actually the more important treaty because it includes all islands belonging to the Philippine Archipelago within or outside the treaty lines.
So the question is, what are the islands belonging to the Philippine Archipelago lying outside the lines? What is our frame of reference in locating these islands? It says, any and all islands lying outside of the treaty lines belonging to the Philippine Archipelago.
Murillo Velarde map
What is our frame of reference? The 1734 Pedro Murillo Velarde map because this is the official Philippine territory under the Spanish regime and this is what they have ceded to the Americans under the treaty of Washington and the Treaty of Paris and that includes of course Scarborough Shoal and the Spratlys.
This map is still alive today. This map determines our territory—territory that was ceded by Spain to the US and which is now our territory as the Republic of the Philippines. (see pages 14-15, 1734 map)
So we have to go back to this map that’s why when this map was auctioned off because there’s no copy of this map in our public libraries and when a copy of this map was being auctioned in Sotheby’s I asked the public librarie—the national museum–the private museums, if they can bid for it, they were not interested.
And the public government on museums didn’t have the budget for it so I asked a friend to bid for it and if he wins—to sell it at a cost to the government because I want a copy of this map in the National Library so that schoolchildren—when they see this map you don’t have to explain to them.
Scarborough Shoal is part of Philippine territories in 1734. The Spratlys are part of Philippine territory since 1734. So he bidded for the map and fortunately, he won and he has donated it because the government offices—the National Library, National Museum don’t have this in their budget.
My friend just decided to donate it to the National Library. So it’s been donated to the National Library.
Now, before the ruling came out, China claimed this shaded area. When the tribunal said, the nine-dash lines have no legal effect, so immediately you have high seas in the South China Sea about 20-25% of the South China Sea of high seas and all-around that. You have the Exclusive Economic Zone of the Philippines, this could belong only to the Philippines.
Because it’s only the Philippines, that is the adjacent coastal state and this is the EEZ of Malaysia in Sabah, EEZ of Brunei, EEZ of Malaysia again in the other part of Sabah, the EEZ of Indonesia in the Natunas, the EEZ of Vietnam, and the EEZ of China.
Automatically you have high seas and exclusive economic zones around those sizes. This area the shaded area in red is what we won. How big is that? That’s as big as larger than the Philippine national territory—the land territory.
These three depths are still disputed because they are rocks above water at high tide between the Philippines and China that’s still in dispute because the tribunal has no jurisdiction over territorial issues. Only jurisdiction over maritime issues.
So we won an area of 376,000 square kilometers in the South China Sea, free from any Chinese claim. This is larger than our total land area. If you put all our islands together, you get only 300,000 square kilometers. We won an area—maritime space—larger than our total land area and we own everything within this huge maritime area—all the fish, oil, gas, and other mineral resources.
Now, there are maritime zones under UNCLOS assuming this is Palawan, you have a territorial sea of 12 nautical miles from the low watermark. From the edge of the territorial sea, you measure 188 nautical miles. You have the EEZ (exclusive economic zone) and from here, you have the high seas, this is our extended continental shelf. This is the area belonging to mankind, but the point here is that, from the edge of the territorial sea-ward, there is freedom of navigation and overflight.
Civilian aircraft, military aircraft, civilian vessel, a military vessel, can sail and fly in this area without getting the consent of the coastal state because there’s freedom of navigation for all countries of the world.
So when the ruling came out, the US said, we will sail and fly in the South China Sea. France said we will also sail and fly. We will ask our European neighbors to join us in a regular patrol in the South China Sea. The British said we will do the same, when our two aircraft carriers are finished we will sail them in the South China Sea.
Australia said we will continue to sail and fly in the South China Sea. Now, the tribunal made a specific finding on Mischief Reef—the tribunals said, we find Mischief Reef is a low tide elevation. It’s submerged at high tide—so it’s low tide—you can see it only at low tide–and therefore, Mischief Reef has no territorial sea and cannot be owned because it’s beyond the territorial sea of any state and it forms part of the exclusive economic zone of the Philippines.
Ruling on Mischief Reef
There is a clear categorical ruling by the tribunal that Mischief Reef has no territorial sea, no territorial airspace, it’s part of the exclusive economic zone of the Philippines. And as part of the exclusive economic zone of the Philippines, it can only be exploited by the Philippines. Only the Philippines can put up structures there if China still there now, China is there as a squatter.
Now, that’s Mischief Reef—huge it’s totally submerged at high tide in its natural state before the reclamation by China. Today, three-kilometer military-grade runway, barracks for thousands of marines, you have radars structures there, entry and exit for warships, and submarines.
That’s the runway in Mischief Reef any jet fighter here can reach Manila in less than 20 minutes. Can reach part of Princesa in less than 10 minutes. The radar here can monitor any aircraft that lands or takes off in Puerto Princesa or in the entire Palawan area.
This one—airbase and naval base—is both an air naval base. The Chinese call this, their Pearl Harbor in the South China Sea. This is a dagger pointed at us because, this Mischief Reef air naval base of China will be used by China to enforce the nine-dash line as China’s national boundary.
When the ruling came out, the Americans decided to test. Because the ruling said, Mischief Reef has no territorial sea. The US sailed this ship Zig-Zag because if this were a territorial sea, this ship should sail straight line—continuous without stopping.
But to show to the Chinese here in Mischief Reef, that this is not a territorial sea because it’s an artificial island. The Zig-Zag, they conducted man overboard operations, they sent a lot of their drones to prove so they are they were actually enforcing the ruling for us.
And this ship, the USS Giffords sale there on Nov. 18, 2019, the same way to show to the Chinese that this is not a territorial sea. They were enforcing the ruling and this plane, the US Poseidon which can detect submarines that are submerged and can drop torpedoes from the air, flew over Mischief Reef.
And this was the conversation between the Chinese ground controller and the US aircraft. The Chinese gun controller said, “leave immediately to avoid any misunderstanding.” The US aircraft said, “we are conducting lawful military activities beyond the national airspace of any coastal state.”
This is not a territorial airspace, we can fly here, because there’s freedom of overflight, this is part of the EEZ of the Philippines. So, the Americans were enforcing the ruling for us, not because they love us, but because it’s in their national interest to protect their sea lanes. Remember the $5.2 trillion trade of shipborne goods that traverse the South China Sea every year.
Over a trillion of that is US trade inbound and outbound trade. They have to maintain freedom of navigation and overflight. The French—they have two naval ships that continuously sail in the South China Sea because they want to maintain a naval presence in all exclusive economic zones, because in the exclusive economic zones their freedom of navigation.
The British—they have two naval ships also sailing continuously in the South China Sea because they want an unbroken presence in the South China Sea. Because they want the rules to preserve the integrity of the rules-based international system. That’s the code word for the ruling, they want to enforce the ruling without saying that we›re enforcing the ruling there.
It’s a euphemism for them, integrity of the rules-based international system. The Japanese have two helicopter carriers every year they alternate in sailing in the South China Sea. This dock in Subic, the last time it was here, I visited it and I asked the captain of the ship, wherein the South China Sea did you sail? And he answered, in the West Philippine Sea.
That’s our EEZ. What did you do in the Philippine EEZ? He said we sent aloft this helicopter, that’s military activity. They were telling China, this is an exclusive economic zone of a coastal state and we have freedom of navigation here.
The Indians, every year they send a naval task force in the South China Sea to assert freedom of navigation. The Canadians do the same every year to preserve to assert freedom of navigation. So all these naval powers actually enforce the ruling for us because they are showing to the Chinese that these are exclusive economic zones or high seas.
Remember, China refuses to accept that there are exclusive economic zones in the South China Sea within the nine-dash line. These naval patrols of the naval powers rebut that forcefully. All this freedom of navigation of flight operations is directed at China. This is not your waters, these are high seas or exclusive economic zones of other coastal states, and therefore we can sail here.
What to do now?
What should we, as Filipinos do now? We should encourage all the navies of the world to sail in the South China Sea and in particular in the West Philippine Sea so that they will enforce the ruling.
Also, we should ask our neighbors Vietnam, Malaysia, Indonesia, and Brunei to help us explain to the Chinese people that China never had historic rights in the South China Sea it’s totally false and all of us in ASEAN should educate the world that China never had historic rights in the South China Sea.
All these claims of China under the nine-dash line is totally false. We should continue resorting to the rule of law because we have no other choice. Why don’t we have a choice? Well, our Constitution says, we renounce war as an instrument of national policy and we cannot enforce the ruling by going to war. We have to use the rule of law and also the UN Charter prohibits war as a means or use of force or threat of force as a means of settling territorial or maritime disputes.
War or use of force or threat of force has been outlawed under the UN charter and under our own Constitution, what is the power of the president? Can the president declare war? No, he cannot even declare war. The power of the president is limited to calling the armed forces in case of invasion, but he cannot direct an aggression against another state it’s not one of his powers, only if there is an invasion can we call it the armed forces.
The power to declare war is lodged in Congress by two-thirds of both Houses in joint session assembled, voting separately shall have the sole power to declare the existence of a state of war.
That’s our Constitution, so we must fight this battle with China. We must preserve our sovereign rights in the West Philippine Sea through the rule of law.