Category Archives: International Law

HISTORICAL FACTS, HISTORICAL LIES, AND HISTORICAL RIGHTS IN THE WEST PHILIPPINE SEA by Justice Antonio T. Carpio (June 6, 2014)

On June 6, 2014, Senior Associate Justice Antonio T. Carpio delivered a lecture at De La Salle University where he addressed China’s assertion to so-called “historical facts” that now appear to be driving its maritime claims in the West Philippine Sea.

China points to ancient Chinese maps as “historical facts” to claim the islands, rocks, reefs and waters within its 9-dashed line claim in the South China Sea. However, Justice Carpio stressed that under international law a map per se does not constitute a territorial title or a legal document to establish territorial rights. For maps to constitute material and relevant evidence, the contending parties must agree to such maps.

Justice Carpio explains that since the start of the Song Dynasty in 960 AD until the end of the Qing Dynasty in 1912, all official and unofficial maps of China indicate that its southernmost territory has always been Hainan Island. This position was confirmed and reiterated in the Constitutions adopted by China from 1912 to 1946 and through a Note Verbale to France. These unilateral declarations are binding on China under international law.

Justice Carpio also noted that neither the Spratlys nor Scarborough Shoal appeared in any Chinese dynasty maps. Rightly so, since the Spratlys are more than 600 nautical miles, and Scarborough Shoal is more than 500 nautical miles from Hainan Island. According to Justice Carpio, China’s present claim that Scarborough Should is the Nanhai Island where Guo Shoujing visited in 1279 and erected a celestial observatory is a double lie because China already officially declared in 1982 that Nanhai is in the Paracels. Furthermore, it was physically impossible to install an observatory on the tiny Scarborough rocks.

On the other hand, Justice Carpio states that numerous ancient maps prepared by Westerners, and later by Philippine authorities, from 1636 to 1940 consistently showed that Scarborough Shoal (a.k.a. Panacot and Bajo de Masinloc) has always been part of Philippine territory.

Justice Carpio empahsizes that under the general principles and rules of international law, a claim of “historical rights” to internal waters or territorial sea must satisfy four conditions. One, the state must formally announce to the international community such claim to internal waters or territorial sea, clearly specifying the nature and scope of such claim. Two, the state must exercise sovereignty over the waters it claims as its own internal waters or territorial sea. Three, such exercise of sovereignty must be continuous over a substantial period of time. Four, other states must recognize, tolerate or acquiesce in to the exercise of such authority.

Justice Carpio asserts that China fails to comply with any of these four conditions. China officially notified the world of its 9-dashed line claim only in 2009. Not a single country in the world recognizes, respects, tolerates or acquiesces to the 9-dashed line claim. China has never effectively enforced its 9-dashed line claim from 1947 to 1994 when the United Nations Convention on the Law of the Sea took effect, or even after 1994 up to the present. Even assuming for the sake of argument that China indeed has “historical rights,” Justice Carpio explains that the entry into force of UNCLOS in 1994 extinguished such rights. Under UNCLOS, a state cannot claim any “historical right” to the Exclusive Economic Zone or Extended Continental Shelf of another state.

Full text here.

 

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