Politics

China and the Nine Dash Lies

From October 2015: Justice Antonio T. Carpio, on what China is doing in the West Philippine Sea and what we can possibly do to stop them.
IMAGE Jake Versoza
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Originally published October 2015.

LOURD DE VEYRA: You recently went to The Netherlands for the hearing of the Philippines’ case against China before the Arbitral Tribunal of the United Nations Convention on the Law of the Sea (UNCLOS). What was your role in the hearings?

JUSTICE CARPIO: I was part of the Philippine delegations as an observer because the people who argued there were American lawyers. I think we have presented a very persuasive presentation. Our arguments were very convincing, very compelling so I think there will be a ruling on our favor on the jurisdiction. After the jurisdiction issue is solved, if it’s on our favor, then there’s [another] hearing in November on the merits. After that, submitted for decision, we wait for maximum of 6 months; [hopefully] within 3 to 4 months. So just before the elections, we should have a ruling.

"In the event that the Tribunal says it doesn’t have jurisdiction at all... It’s going to be very bad. It will be a disaster. Money that we are using now for education, infrastructure, and social services, will have to be reallocated to defense. And I think everybody loses there."

LDV: Nice. In the event that we get a decision from the Tribunal that says it has no jurisdiction over its complaint, what is the Philippines to do after that?

JC: In the event that the Tribunal says it doesn’t have jurisdiction at all, then we are back to square one, which means that the only way we can protect our maritime zones is to buy warships, buy war planes, buy anti-ship missiles. Which means that there will be a naval arms race among coastal countries in the South China Sea. Everybody will know that international law is not there to protect their maritime zones. Everybody will know that UNCLOS is useless. So how will you protect your territorial sea, your EEZ (Exclusive Economic Zone), your extended continental shelf? By acquiring naval assets. By having airplanes and so on. It’s going to be very bad. It will be a disaster. Money that we are using now for education, infrastructure, and social services, will have to be reallocated to defense. And I think everybody loses there.

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LDV: That is a worst-case scenario that we’ve always painted?

JC: Yes.

LDV: That in such cases, you would be drawing territorial lines with naval cannons, not with law.

JC: Yeah. In other words, the rule of the sea will be governed by naval cannons. It’s a loss for everybody.

"You’re trying to simplify the case, simplify the issue, and then you get stopped with one very innocent question: Why is China doing this?"

LDV: I was part of the documentary that the DFA commissioned to instruct the public about this whole issue. And what we found out was that it’s not that simple a case. When we went to the DFA, there were many nuances like, let’s say, we had to find a way to explain to the public that it is not a territorial dispute.

JC: It’s not.

LDV: But the public would think all along that it’s about land. It’s about, “This is mine, that is mine.” You’ve been a tireless speaker in many many conferences educating the public about this issue. Do you think Filipinos are aware of these little nuances? Let’s say, the simple issue of the features. How do even explain features to them? That this is just bato; this bato has water, it has no vegetation, it can’t support life.

"China wants to get the fisheries, the oil, the gas, the mineral resources, and they want a sanctuary for their submarines and war-ships in the South China Sea. China’s 1.2 to 1.3 billion people, and their rivers and lakes are now polluted, even their coastal areas are polluted so they cannot harvest fish anymore in their waters because they are polluted so they have to move out."

JC: Well, that’s why I’ve been trying to talk everywhere to explain to the public. Actually, the overall dispute involves territory and maritime disputes. It’s both a territorial and a maritime dispute but what we have brought to UNCLOS, to the Tribunal, is just a maritime dispute because UNCLOS only governs the law of the sea. It does not govern territorial disputes. But there are two disputes and only one is with the court right now. For the other dispute, we need China’s consent to submit it to arbitration but China will never consent. But in the case of the maritime dispute, China is a signatory to the United Nations Convention on the Law of the Sea and they gave their prior consent to submit it to compulsory arbitration. I think people are starting to appreciate the difference now. It will take time but we’ve explained that.

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LDV: I was invited to speak to a grade school about the issue. And there was nothing more terrifying than the whole experience. You’re trying to simplify the case, simplify the issue, and then you get stopped with one very innocent question: Why is China doing this?

"They tried to survey for oil and gas in the reef bank. The coast guard had been harassing our survey ships. And they’re building air bases and naval bases in the Spratlys. So it’s a combination of these. They want all the fisheries, all the oil, gas, mineral resources, and sanctuary for their vessels."

JC: Well, there are many reasons. One, China wants to get the fisheries, the oil, the gas, the mineral resources, and they want a sanctuary for their submarines and war-ships in the South China Sea. China’s 1.2 to 1.3 billion people, and their rivers and lakes are now polluted, even their coastal areas are polluted so they cannot harvest fish anymore in their waters because they are polluted so they have to move out. China has the largest fishing fleet in the world; seventy thousand fishing vessels. And you can just imagine what they’ll do with those fishing vessels. They will, of course, put all these vessels first in the South China Sea, and the rest will go to Pacific Ocean. So it’s really a fight over fisheries, because China needs a source of fish and their waters are now becoming polluted.

"When they seized Scarborough shoal, I think we woke up and said, “No, we cannot wait another 17 years before this is resolved.”"

JC: Two, oil and gas, you can see that they’re drilling in the EEZ of Vietnam. They tried to survey for oil and gas in the reef bank. The coast guard had been harassing our survey ships. And they’re building air bases and naval bases in the Spratlys. So it’s a combination of these. They want all the fisheries, all the oil, gas, mineral resources, and sanctuary for their vessels. Remember, China seized Mischief Reef in 1995, during the presidency of Fidel Ramos. But in 1995, China was not yet a member of the UNCLOS. It became a member in 1996, the following year. We should have started already but UNCLOS was very new. It took effect only in 1994. Very few people really understood what it meant. We should have brought it earlier but China was always saying, “We will observe a peaceful rise. The development of China should not be a concern to the world. We believe in a peaceful rise.” And we bought into that argument for a time. But when they seized Scarborough shoal, I think we woke up and said, “No, we cannot wait another 17 years before this is resolved.”

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LDV: And there’s always this duplicity involved?

JC: Yeah, because the Americans tried to broker that incident in Scarborough shoal. The Americans thought that they had the commitment of China and the Philippines to withdraw at the same time. That was, I think, June-July of 2012. The Americans thought that they had the commitment of China and the Philippines to with-draw voluntarily at the same time. We withdrew. China did not. And up to now, they’re still there.

LDV: Like Sierra Madre.

"So this is a grand design. This is not something that they just thought of yesterday. This is a grand design to control the entire South China Sea."

JC: Yeah, like Sierra Madre. The other day, one of the leading officers of a research institute in China, Think Tank, was asked about the reclamations. And he said, “We really wanted to do this reclamation a long, long time ago but it’s only now that China acquired the technology. [We] needed the vessels and the money to do this reclamation.” So you see. It’s a very long-term stratagem. The reclamation is not a knee jerk reaction to filing a case in The Hague, no. I anticipate there will be an air base and naval base in Scarborough shoal. So this is a grand design. This is not something that they just thought of yesterday. This is a grand design to control the entire South China Sea.

LDV: It’s been said that there’s no international policeman. Let’s say, in the event that the Tribunal goes in our favor... I suppose this is one question that’s always asked in your talks, that what happens if China does not decide to comply? You’ve always cited many, many good cases but we always say that China is not the US and China is not Russia.

"What happens inside China, they control. But they cannot control what happens outside of China, especially when a vital sea lane like the South China Sea is involved. Because there are several countries involved here."

JC: Well, you see, more than Russia and the US, China depends on world trade. Without world trade, their economy will grind to a halt. They have to export their products. They have to import oil. So they really need good relations with the rest of the world. So if China cannot import oil, their economy will collapse. If they cannot export their manufactured products, their economy will collapse. So they need to maintain good trade relations with the rest of the world.

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LDV: Since the time of Tiananmen Square up to the massacres of Tibet, China was never known to listen to international opinion.

JC: Well that is inside China. What happens inside China, they control. But they cannot control what happens outside of China, especially when a vital sea lane like the South China Sea is involved. Because there are several countries involved here. There are five ASEAN states, and you have other countries like Japan, Thailand, and Indonesia that are also af-fected. So China is in a more vulnerable position than Russia than the US when it comes to world opinion because they depend on trade a lot.

"So if we win in the Tribunal, the dispute in the South China Sea is drastically reduced to the territories. We’re talking of the islands in the Spratlys. That’s a big achievement. We can live with that dispute in the next thousand years."

LDV: When you see all these satellite photographs, week after week, of new military installations being built at a frightening pace in the West Philippine Sea, does that fill you with a sense of, “Oh my god, how do we dismantle this earth?” Will they be willing to dismantle all of that in the event of a ruling that favors us?

JC: Well, if you look at it, Spratlys constitute only about five percent or less of the total South China Sea. So if we win in the Tribunal, the dispute in the South China Sea is drastically reduced to the territories. We’re talking of the islands in the Spratlys. That’s a big achievement. We can live with that dispute in the next thousand years. What we cannot accept is that, we cannot fish in the rest of the South China Sea. We fish there everyday. We traverse that sea everyday. So if the dispute now is limited to those islands in the Spratlys where China has installed naval bases facilities, that’s okay.

"What we cannot accept is that, we cannot fish in the rest of the South China Sea. We fish there everyday. We traverse that sea everyday."

LDV: So let’s just let them be there?

JC: Yeah. We can continue our protesting but eventually, technology will render those military bases irrelevant or obsolete. Right now, the Americans are saying that those military bases are useless because they can be hit at any time.

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LDV: So reinforcements would arrive...

JC: Yeah. By the time the reinforcements arrive, all the facilities will be destroyed. So the Americans [are] right. Those are really sitting ducks. But they’re important during peacetime because their naval vessels can patrol. They can shove away our fishermen. They’re valuable during peacetime, but they can be obliterated any time. So I’m not worried that they will stay there for the next hundred years. They will keep on protesting. If we win, they should leave but of course, they will not voluntarily leave. But it’s okay because the area of conflict would have been drastically reduced to a manageable level.

"They will keep on protesting. If we win, they should leave but of course, they will not voluntarily leave. But it’s okay because the area of conflict would have been drastically reduced to a manageable level."

LDV: And according to predictions, the Chinese empire will collapse in the next few decades. I don’t know.

JC: (laughs) They have big problems, economic problems.

LDV: Do you think the government was wrong not to push through the purchase of the land-based missile system?

JC: I don’t know the problem there but (having) the anti-ship missiles that are mobile-mounted that can hit in the tunnels and mountains of Palawan is the cheapest way to deter Chinese aggression. Because a mobile-mounted anti-ship missile like the BrahMos-II of India—three missiles, complete system, truck-mounted with radar. It’s about US$2 million. That’s the cheap-est way to defend the army.

Justice Carprio's stake in the WPS

LDV: Curious ako, Justice Carpio, when did your interest about this whole issue of the West Philippine Sea begin? And what do you find fascinating about it?

JC: It started when I was the ponente in the Baselines Law case. The constitutionality of the Baselines Law was the question here and it was a unanimous decision. I saw that one day, we will have a case with China and we [will] have to show to the Tribunal that we have complied with UNCLOS because the question there is whether we follow the Treaty of Paris lines or the new lines drawn in the coordinates of UNCLOS. If we follow the Treaty of Paris lines, that’s the equivalent of the 9-dash line. How could we go to the Tribunal asking them to validate the 9-dash line when we have our own? The treaty lines of Paris are incompatible with UNCLOS. So I said, we have to follow UNCLOS because that is our argument when we questioned the validity of the 9-dash line. That’s where we are now.

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Debunking China's historical claims

LDV: And Justice, what is your fascination with old maps?

JC: It started with this case because China always said that, “[We discovered Scarborough shoal] during the Huan Dynasty.” So I said, “How could they have discovered a shoal that was just one meter above water in high tide? What’s the interest?” That startled me. So I’m interested only in the map if Scarborough shoal is there or the Spratlys are there because that’s related to my study of the West Philippine Sea. But not all maps, just those maps that show Scarborough shoal and the Spratlys because I’m not really into maps. It’s only because of this case.

LDV: I thought you were obsessed with cartography.

JC: (laughs) No, I have to study it because of this case.

LDV: There was a funny illustration that I think you used. It was to refute this claim by China about this ancient Chinese astronomer who supposedly built this laboratory on Scarborough, and you showed how absurd it looked.

JC: Yeah, if you go to the Chinese embassy website in Manila, they have a claim that in 1279 Kublai Khan was supposed to have instructed Guo Shoujing, the astronomer, to put up an observatory in the South Sea. But the question is, where did they put it? Where did Guo Shoujing put 111it? And the embassy here says, “Oh, that is Scarborough shoal.” So I researched on that. It turns out that in 1980, when Viet-nam and China were quarreling over the Paracels, China already said, “Paracels be-long to us because Guo Shoujing put up the observatory in Xisha,” which is the Chinese name for Paracels. Guo Shoujing put up 27 observatories all in all—26 in mainland China and one in the South Sea. The Chinese government said that that was in Paracels to refute the historical claim of Vietnam. So I found that document. It’s an official document. So I said, China now cannot say that Guo Shoujing put up the observatory in Scarborough because they already said officially that it was in the Paracels. It’s 380 nautical miles apart. And I found out that, of the existing 26 observatories that Guo Shoujing put up in mainland China, one still exists in Henan prov-ince. You can go there, it still exists, well preserved. It’s a huge structure, 12.6 meters high, and there’s a sundial. The sundial is probably about 10 meters. So it’s impos-sible for that conservatory to have been constructed in Scarborough shoal. There was no way. If Guo Shoujing was able to do that, then Guo Shoujing was able to create something greater than The Great Wall of China.

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LDV: And if you actually fly over Scarborough, you will find it impossible?

JC: It’s impossible. And to operate an observatory, you have to be there everyday because you have to take measurements of the sundial. How could they have lived there? Everyday for one year? Impossible! So we have to know [what] exactly [is the] narrative of China. That’s why we have to look at their own records, and their own records show that the southernmost terri-tories since the beginning of the [Imperial] Chinese period up to 1912, when the Qing Dynasty ended, their southernmost territory was always Hainan.

On Pinoy detractors of the PH claim

LDV: What was your reaction to the comment of the Vice President [Jejomar Binay] that an eighteen-man team to The Hague was a bit too much?

"China has a pre-condition. 'We will enter into joint development if you concede sovereignty to China.'"

JC: You see, what is at stake here is 80% of our Exclusive Economic Zone in the West Philippine Sea. That means, what is at stake is 80% of the fish that we catch in the West Philippine Sea. The 80% includes a big portion of Malampaya. Malampaya supplies 40% of the gas requirement of Luzon. If that is cut off, we will have roll-ing brownouts in Luzon. So what is at stake here is huge. This is the food resource, the energy resource of future generations of Filipinos and I think we cannot scrimp here. We cannot leave any stone unturned to defend these resources. Even if we sent, let’s say, 30 people there, that’s nothing compared to what is at stake.

"What is at stake here is 80% of our Exclusive Economic Zone in the West Philippine Sea. That means, what is at stake is 80% of the fish that we catch in the West Philippine Sea. The 80% includes a big portion of Malampaya. Malampaya supplies 40% of the gas requirement of Luzon."

LDV: What’s scary is that the Vice President is actually for bilateral talks with China. And he has expressly said that we need the money, in those evident terms.

JC: (Well, he said that if elected president, he would sign a joint development with China.) I have said that China has offered joint development to all ASEAN countries. But not a single ASEAN country has accepted. Why? Because China has a pre-condition. “We will enter into joint development if you concede sovereignty to China.” Now, the president has no power to concede sovereignty of Philippine territory, like the islands in Pagasa, to China. He has no power to concede the sovereignty to China over maritime zones because the constitution says that it belongs to the people. If any president signs a joint development with China under those terms, conceding sovereignty to China, he will be impeached.

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LDV: Have you ever set foot in any of the islands in the Spratlys?

JC: Yeah, I [was] in Pagasa about two months ago. I visited Pagasa because at that time, China was already reclaiming. And China was saying, “The Philippines cannot complain. Vietnam cannot complain. Because they have been reclaiming also.” So I asked the DND if they can allow me to go to Pagasa because I want to tell the people, the audience, that it’s not true. We have not reclaimed, we have not made any repairs to Pagasa. We made that airstrip in the 1970s. The airstrip has eroded but we have not repaired it.

"Now, the president has no power to concede sovereignty of Philippine territory, like the islands in Pagasa, to China. He has no power to concede the sovereignty to China over maritime zones because the constitution says that it belongs to the people. If any president signs a joint development with China under those terms, conceding sovereignty to China, he will be impeached."

LDV: I don’t know if you’ve heard it, if you’ve happened to be near the cockpit of the C130, but I’ve flown there three times, and every time we would approach Pagasa, there’s always an angle of the plane where (you can actually see) Subi Reef, and you would always get a warning, “This is Chinese military.” And it’s pretty much nerve-wracking to hear that kind of frequency when you’re up in the air.

JC: Yes, when we flew over Pagasa, we could see Subi Reef, the construction going on there. Subi Reef is just a little over 12 nautical miles from Pagasa. But we did not hear any radio warning at the time.

LDV: I’m curious, Justice, what did they serve you for lunch in Pagasa?

JC: They did not serve us in Pagasa. After Pagasa, we flew to Puerto Princesa and that’s where we had our lunch.

"China reclaimed on seven reefs, because it occupies seven reefs in the Spratlys, but actually, they also got filling materials from 10 other reefs. So they actually destroyed 17 reefs in the Spratlys. That’s huge. The reef takes 30 million years to form because it’s a sunken volcano. They’re irreplaceable."

LDV: Ah, I see. When we were there, all the residents actually apologized. “Sorry, wala na ho kaming galunggong pero meron ho kaming maya-maya.” That’s really only the fish that they had there. Walang cheap fish. They’re all first class.

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JC: Yeah, fish is all around the island because the Spratlys has the most dense concentration of reefs in the South China Sea. China reclaimed on seven reefs, because it occupies seven reefs in the Spratlys, but actually, they also got filling materials from 10 other reefs. So they actually destroyed 17 reefs in the Spratlys. That’s huge. The reef takes 30 million years to form because it’s a sunken volcano. They’re irreplaceable.

Filipinos for the West Philippine Sea

LDV: When you were standing on Pagasa Island, and looking around, what were the thoughts that entered your head?

JC: Well, first of all, I said that it’s the obligation of the government and the Filipino people [to] support it. Two, repair that runway and put up facilities. If we want to maintain those islands as our own, we just have to fortify them. The other alternative there is, since the Spratlys are essential for food, for the fish, all the countries involved in the dispute can agree to declare it the fish sanctuary or reef sanctuary because it benefits everybody. Stop all reclamation and then let the reefs recover.

LDV: Last question. What would you like to hear the President say about the West Philippine Sea issue?

JC: First, that we will devote more resources to protect our maritime zones. Two, that we will not waver in our legal approach because we need to have the 9-dash lines declared void under international law. And third, that the government would move to invite all the countries in dispute to declare it a maritime protected area for the benefit of mankind. We suspend all claims. I think that’s a very practical way of solving the problem.

This piece originally appeared in our October 2015 issue.

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About The Author
Justice Antonio T. Carpio
Justice Antonio T. Carpio is an incumbent Senior Associate Justice of the Supreme Court. After U.P. law school, Justice Carpio developed a highly respected career, putting up his own firm, teaching at the College of Law and serving as presidential legal counsel for President Ramos. These days, he is most vocal about the maritime disputes in the West Philippine Sea.
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