Ex-SC Justice Carpio: China gained what it lost from 2016 arbitral ruling



RETIRED Supreme Court Justice Antonio Carpio on Tuesday said China should not begrudge the ruling of the international tribunal annulling its historic claim to the whole South China Sea (SCS) “because it gained what it lost by having the means to explore the resources of the high seas.”

Keynoting the 50th Anniversary of the Vienna Convention on the Law of Treaties at the Department of Foreign Affairs, Carpio said, “Whatever China lost in arbitration it has actually recovered because it can now fish in the larger high seas because the claims of other states will also be denied. Their small islands will not be awarded exclusive economic zone [EEZ], only 12 nautical miles territorial sea.” The DFA event also coincides with the Golden Anniversary of the Vienna Convention on the Law of Treaties.

“So China should look at it that way. If you look at the sum total of everything, it’s actually ahead, because as the country with the largest fishing fleet, it stands to benefit immensely because the high seas have been greatly increased with this ruling.”

Carpio explained why the Philippines’s pleading with UN body was accepted to consider Itu Aba, (Ligao or Ligaw to the Filipinos, Taiping to China and Taiwan), a “rock.”

Itu Aba is the largest of the naturally occurring Spratly Islands in the South China Sea with a runway running its entire 1.4-km length. It is occupied by 220 military, coast guard and support personnel, including four civilians.

In the July 2016 historic ruling, the arbitral tribunal classified Itu Aba as a rock under United Nations Convention on the Law of the Sea (Unclos), and therefore not entitled to a 200-nautical mile EEZ and continental shelf.

Both Taiwan and China rejected this ruling. Like Itu Aba, Carpio said “there are many islands in the Pacific Ocean where the US is claiming 200-nm EEZ for their tiny islands that are not habitable.”

However, he said the Tribunal has invalidated those claims and granted only 12-NM jurisdiction.

Since the original claims of a 200-NM EEZ for rocks and inhabitable islands have been overturned, Carpio said in effect, “the high seas have been expanded, increased and the country with the largest fishing fleet is the No. 1 beneficiary. And the country with the largest fishing fleet is China.”

Asked why China, despite having the largest fishing fleet, still blocks attempts by other claimants and coastal estates to fish in the contested islands, Carpio said: “I think they [China] should start respecting international law, start by respecting the arbitral tribunal because they did not really lose in terms of fishing and even in terms of mineral resources.”

He explained that in the high seas where islands do not have EEZ, “then beyond the territorial sea, other countries can explore the mineral resources; all they have to do is to get a permit from the International Seabed Authority [ISA].”

Carpio continued: “So if you sum it up all, China is really ahead, even if it lost to us but it gained much more because the high seas have been expanded, and in the high seas where there are no EEZ of coastal states, they are free to apply for permit from the ISA to explore the mineral resources.”

Asked why China claims ownership of seven features in the SCS that they excavated from the bottom of the ocean, Carpio said there are two disputes in the SCS. “The first is the dispute on the maritime resources, like fish, oil, gas; and the second is the dispute over territory.”

In areas “where China built on rocks above water at high tide, those are territorial disputes not covered by the Unclos tribunal because Unclos governs only maritime disputes, not territorial disputes,” Carpio explained.

Carpio who has taken a hard stance against China following the favorable ruling by the Tribunal in 2016, said “There can be no effective dispute settlement between and among treaty states without uniform and universally accepted rules of treaty interpretation. That is the function of the Vienna Convention—the treaty we celebrate today for its 50th year since its signing.”

He said the Vienna Convention is the common language used in applying and interpreting treaties so that states are on the same wavelength when they negotiate, conclude, apply and interpret treaties, enabling peace and stability in the world and the advancement of civilization in an orderly manner.

“The Vienna Convention has been cited, in both majority and minority opinions, in no less than 22 Supreme Court decisions that applied and interpreted treaties entered into by the Philippines.”

He said the most important example of the value of the Vienna Convention to the Philippines was the application of the Vienna Convention in the South China Sea Arbitration at The Hague.

“The Tribunal’s Award was wrestled on what constitutes a rock which cannot sustain human habitation of its own so as to be entitled not only to a 12-NM territorial sea, but also to a 200-NM exclusive economic zone.”

Ex-SC Justice Carpio: China gained what it lost from 2016 arbitral ruling