Editor’s Note: Following are the remarks of Justice Antonio T. Carpio (Ret.) before the Pilipinas Conference 2024 at the Manila Polo Club on November 6, 2024 marking the 20th Anniversary of Stratbase ADR Institute.
There are two foundational principles of the United Nations Charter: first, “all Members shall settle their disputes by peaceful means;” and second, “the threat or use of force against the territorial integrity or political independence of any state” is prohibited. These two principles are the bases of the rules-based international order.
The reason why these two foundational principles were adopted is stated in the Preamble of the 1945 UN Charter: “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.” A third world war would probably end mankind as we know it today because of the existence of enough nuclear bombs to destroy our world multiple times.
Before the 1945 UN Charter was adopted, the rule in international law was “Might Is Right”. If a state had a territorial dispute with its neighboring state, the state could just invade its neighboring state to settle the territorial dispute. If it succeeded in its invasion and won the war, its invasion was legitimate and the state was awarded with the territory of its neighboring state. This “Might Is Right” rule spawned countless wars, leading to two world wars. The UN Charter changed this rule to “Right is Might.”
When China seized Scarborough Shoal in 2012, the Philippines did not send its Marines to retake Scarborough Shoal. The Philippines sent its lawyers to The Hague to invalidate China’s nine-dash line before a tribunal under the UN Convention on the Law of the Sea or UNCLOS. The Philippines won a landmark victory in the July 12, 2016 Arbitral Award which the world is now rallying behind to preserve peace and stability in the South China Sea.
Recently, two nuclear armed states have been deliberately trying to overturn the prevailing “Right Is Might” rule and to return the world to the “Might Is Right” rule that governed before the 1945 UN Charter.
In Europe, Russia invaded Ukraine in 2022 to settle a territorial dispute with armed force in blatant violation of the foundational principles of the UN Charter. In Asia, China enacted a new coast guard law authorizing its coast guard vessels to use all necessary force to implement its 10-dash line in the South China Sea. This new Chinese law is a threat of force against coastal states whose EEZs are encroached by China’s ten-dash line, a threat of force that is equally outlawed by the UN Charter as the use of actual armed force is outlawed.
In Europe, the frontline state bravely defending the international rules-based order on behalf of the entire world is Ukraine. The EU and NATO countries have given their full support to Ukraine.
In Asia, and in particular in the South China Sea, the Philippines is the frontline state bravely defending the rules-based international order against Chinese encroachment, bullying and aggressive gray zone tactics designed to seize almost 90% of the South China Sea, including its high seas and vast areas of the EEZs of five ASEAN coastal states.
The Philippines should invite all like-minded states of the world to sail in the West Philippine Sea, singly or jointly with the Philippines and others, to show that in the Exclusive Economic Zone of the Philippines in the WPS, there is freedom of navigation and overflight, including the conduct of naval and aerial drills, in accordance with UNCLOS.
This will affirm and enforce the Arbitral Award of 2016 that China’s nine-dash line, which has grown to 10-dash line since then, is invalid as a claim to maritime zones — their waters and natural resources — under UNCLOS and international law.
If the navies and coastguards of like-minded states will continuously sail in the South China Sea, to assert freedom of navigation and overflight, China can never succeed in imposing its nine — now ten-dash line — as its national boundary in the South China Sea.
The members of the UN that approved last year the Biodiversity of Areas Beyond National Jurisdiction Agreement or the High Seas Treaty are now in the process of ratifying this landmark treaty. China approved the High Seas Treaty but has announced that the treaty does not apply to the South China Sea because there are no high seas in the South China Sea since almost 90% of the South China Sea fall within China’s ten-dash line.
We should remember that the Arbitral Award of 2016 affirmed the existence of high seas in the South China Sea. If the High Seas Treaty cannot apply to the high seas of the South China Sea, then the High Seas Treaty is DOA — dead on arrival. Other powerful states will start to claim that the High Seas Treaty does not apply to the high seas near them.
To prevent China from claiming that other ratifying states are acquiescing or impliedly consenting that the High Seas Treaty does not apply to the South China Sea, all states that ratify the High Seas Treaty must expressly declare in their instrument of ratification that the High Seas Treaty applies to the South China Sea.
This will achieve two important things: first, it will prevent China from claiming that other ratifying states agree that there are no high seas in the South China Sea; second, it will affirm the Arbitral Award of 2016 denying China’s claim to almost 90% of the maritime zones in the South China Sea.
The Philippines should continue to bring outstanding maritime issues before UNCLOS arbitral tribunals which have compulsory jurisdiction to resolve such issues. Thus, the Philippines should submit to arbitration the overlapping extended continental shelves with China and other ASEAN states in the Spratlys area, as well as submit to arbitration the ramming by Chinese coast guard vessels of Philippine coast guard vessels in the Philippine EEZ in the West Philippine Sea.
Lastly, the Philippines should invite China, Vietnam, Malaysia, and Brunei to submit the territorial disputes over the Spratlys to voluntary arbitration by the International Court of Justice.
Separately, the Philippines should invite China to submit the territorial dispute over Scarborough Shoal to voluntary arbitration by the International Court of Justice. This is in accordance with the mandatory provision of the UN Charter that “all Members shall settle their international disputes by peaceful means.” – Rappler.com