Speech: Grand Theft of the Global Commons

June 28, 2018 | Author: Justice Antonio T. Carpio | Category: Territorial Waters, Exclusive Economic Zone, United Nations Convention On The Law Of The Sea, South China Sea, Sea
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As citizens of the world, we all have a profound stake in preserving the global commons in the South China Sea. As law p...


Grand Theft of the Global Commons (Speech delivered on the 75th Anniversary of the College of Law of the University of San Agustin, Iloilo City, City, 30 August 2014)

 Justice Antonio T. T. Carpio

 Hainan claims to administer all the waters enclosed by the dashes from 1 to the heavy red red line interse intersecti cting ng the dashes dashes between between 8 and 9. The enclosed waters comprise two million square kilometers. China claims a total of three million square kilometers of maritime space, and all the resou esourrces ces foun found d ther there, e, out out of the the 3.5 3.5 mill millio ion n squa square re kilo kilome mete ters rs of maritime space in the South China Sea.

Most of us gathered here tonight consider ourselves life-long students student s of the law. law. We believe in the rule of law among nations nation s as the essential condition for the survival of our civilization on this  planet. We have seen the development of the rule of law from anci ancien entt times times to the the pres presen ent, t, with with inte intern rnat ation ional al law law gene genera rall lly y  progressing to regulate the conduct of wars among nations. Thus, the foundation of international law is the laws of war and peace among nations. UNCLOS – The Constitution for the Oceans and Seas

After WWII when the threat or use of force against the territorial integrity of another State was outlawed under the Charter of the United Nations, international law progressed considerably. One of the greatest achievements in international law was the signing in 1982 of the United Nations Convention on the Law of the the Sea Sea or UNCL UNCLOS OS.. UNCL UNCLOS OS took took effe effect ct in 19 1994 94 and has regulated the use of the oceans and seas of our planet for the last two decades. decades. UNCLOS is the Constitution for for the oceans and seas seas of the earth. UNCLOS UNCLOS is the greatest codification of international law into onee cohe on cohere rent nt sy syst stem em,, comp comple lete te with with a comp compul ulso sory ry disp disput utee settlement settlement mechanism mechanism to enforce enforce its provision provisions. s. It took 26 years, years, starting from the first negotiating conference in 1956, to negotiate UNCLOS – the longest running negotiation in the history of the Unit United ed Natio Nations. ns. Some Some 16 165 5 Sta State tess h hav avee rat ratif ifie ied d UNC UNCLO LOS, S, representing an overwhelming majority of members of the United  Nations. All the claimant States States in the South China Sea dispute are  parties to UNCLOS UNCLOS and are bound by UNCLOS. UNCLOS. UNCLOS not only codified existing customary international law law on the the law law of the sea sea, it also also crea reated ted no nove vell water tersh shed ed entitl entitleme ements nts like like the Ex Exclu clusiv sivee Econo Economic mic Zo Zone ne (EEZ (EEZ)) and the Extended Continental Continental Shelf (ECS). (ECS). UNCLOS institutionalized the global commons – which originated from the ancient idea that the oceans and seas of our planet belonged to all mankind. Under UNCLOS, there are four maritime zones in the oceans and seas, all measured from coastal land following the concept that the the land land do domi mina nate tess the the sea, sea, whic which h mean meanss that that enti entitl tlem emen entt to mariti maritime me zones zones is derive derived d from from sov sover ereig eignty nty over over land. land.  First , we 2

have the 12-NM territorial sea adjacent to coastal land;  second , the 200-N 200 -NM M EEZ adjacen adjacentt to coasta coastall land; land; third , the additional 150 NM ECS beyond the EEZ; and  fourth, the AREA, the maritime space beyond the ECS. In its its terr territ itor oria iall sea sea the the adja adjace cent nt coas coasta tall Stat Statee has has full full sovere sov ereign ignty ty just like in its land territ territory ory.. In its EEZ beyond beyond its territorial sea, the adjacent coastal State has only the sovereign or exclusive right to exploit the living or fishery resources, as well as the non-living or mineral resources; in its EEZ the adjacent coastal State does not have full sovereignty in the same way it has full sovereignt sovereignty y in its territorial territorial sea. In its ECS the adjacent adjacent coastal coastal State has the sovereign right to exploit only the non-living or mine minera rall reso resour urce ces; s; in the the ECS ECS the the livi living ng or fishe fishery ry reso resour urce cess  belong to all mankind. In the AREA, the living and non-living resources also belong to all mankind. In short, the fishery resources beyond the 200-NM EEZ of a coastal State belong to all States of this planet, whether coastal or landlocked landlocked.. The waters waters beyond beyond the 200-NM 200-NM EEZ are are called called the “high seas.” No State can can claim exclusive exclusive right to fish in the high seas. No State can bar other States from fishing in the high seas. The fishery resources in the high seas belong to all mankind, forming part of the global commons, just like the sun, the moon and outer outer space. space. No State State can can approp appropria riate te for itself itself the fishery fishery resources in the high seas, in the same way that no State can appropriate for its exclusive use the energy radiating from the sun. Thus, UNCLOS expressly provides: “The high seas are open to all States, whether coastal or landlocked. Freedom of the high seas seas xx xxx x comp compri rise ses, s, inter alia, both for coastal and landlocked States States xxx, xxx, (e) (e) free freedom dom of of fishi fishing. ng. xxx xxx.. No Stat Statee may may validl validly y  purport to subject any part of the high seas to its sovereignty.” sovereignty.” UNCLOS expressly defines the high seas as “all parts of the sea that that are are no nott incl includ uded ed in the the exclu xclusi sive ve econ econom omic ic zone zone,, in the the terr territ itor oria iall sea sea or in the the inte intern rnal al wate waters rs of a Stat State, e, or in the the arch archip ipel elag agic ic wate waters rs of an arch archip ipel elag agic ic Stat State. e.”” Th Thes esee are are the the express declarations and specific commands of international law, in particular UNCLOS. UNCLOS. Clearly, Clearly, the fishery fishery resources in the high seas are part of the global commons, belonging to all mankind. 3

The Concept of the Global Commons

The con onccept ept of the globa loball com commo mons ns is cent entral ral to the the developmen developmentt of the law of the sea. The Institute Institutess of Justinian Justinian of the Roman Emperor Justinian, written in the 6 th century, declared that the sea is “common to mankind” and its use is subject only to “the law of nations.” nations.” This early early concept concept of the global global commons commons  prevailed in Europe from the 6th to the 12th century. century. Afterwards, Afterwards, States started claiming control and ownership of their adjacent seas. In 1609, the Dutchman Hugo Grotius wrote his famous  Mare Sea. Groti Grotius us argue argued d that no nation nation could could  Liberum  or the Free Sea. claim ownership of the oceans and seas because they belonged to all mankind. The naval naval powers at that time – Spain, Spain, Portugal and Engl En glan and d – held held the the op oppo posi site te view view,, clai claimi ming ng owne owners rship hip of the the oceans and seas seas by discovery. discovery. The English John Selden advocated advocated this opposite view in his 1635 treatise  Mare Clausum Clausum or the Closed Sea. ea. Sinc ince the then until ntil the end end of the the 18th centur century y, these these two cont contra radi dict ctor ory y view viewss - on onee clai claimi ming ng that that the the ocea oceans ns and and seas seas  belonged to all mankind and the other claiming that nations could appropriate as their own the oceans and seas seas - competed for for world approval. Grotius’ idea eventually won and and became the foundation of the law of the sea. Grotius is kno known as the father of international law for his writings on the laws of war and peace. Thus,, un Thus unde derr inte intern rnat atio iona nall law law sinc sincee the the turn turn of the the 19 19th th century until today, the waters beyond a coastal State’s territorial sea could never be subject to sovereignty by the coastal State. Before UNCLOS, the territorial sea was a belt of 3-NMs of waters from the coast, and beyond this 3-NM territorial sea was the high seas, belonging to all mankind as part of the global commons. Under international law, law, before and after UNCLOS, no State could appropriate the high seas as as its own exclusive waters. waters. Before and and after UNCLOS, the high seas were part of the global commons. In 1967, the negotiations for a new law of the sea treaty had  become moribund under the UNCLOS UNCLOS I and UNCLOS II negotiating Conferences. Then, on November 1, 1967 Ambassador Arvid Pardo of Malta, in an impassioned speech before the General Assembly, beseeched the United Nations to declare “the seabed and the ocean ocean floor a common common heritage heritage of mankind.” The concept 4

of the the “com “commo mon n heri herita tage ge of mank mankin ind” d” elec electr trif ifie ied d the Gene Genera rall Assembly Assembly.. This paved paved the way for the UNCLOS UNCLOS III negotia negotiating ting Conference that finally resulted in the signing of UNCLOS in 1982. Thu hus, s, UNCLO NCLOS S exp xpre ress ssly ly prov provid ides es:: “The “The Area Area and and its its resour resources ces are the common common herita heritage ge of mankin mankind. d. No State State shall claim or exercise sovereignty or sovereign rights over any part of the Area Area or its resourc resources es xxx. All All rights in the resour resources ces of the Area are vested in mankind as a whole xxx.” Clearly, internation ional law, specifi ifically lly UNCLOS, indisputably declares that the fishery resources in the high seas, which are the waters beyond the EEZ of a coastal State, and the fishery and mineral resources in the Area, which is the maritime zone beyond the ECS of a coastal State, belong to all States as the common heritage of mankind. mankind. These fishery and and mineral resources resources are part part of the global commons. commons. No State State can appropria appropriate te these resources as its own. No State can can bar other States from enjoying enjoying these resource resourcess in accordan accordance ce with internation international al law. law. Any State that bars other States, and appropriates for its own exclusive use, these fishery and mineral resources is shamelessly stealing what  belongs to all mankind. The Global Commons vs. China’s China’s 9-Dashed Lines

In the South China Sea, the global commons for fishery resources refers refers to the area area beyond the EEZs of coastal coastal States. In maps of the South China Sea that indicate the EEZs of coastal States, the global commons appears as the elongated hole of a doughnut doughnut right right in the the middle middle of the South South China China Sea. Sea. This “hole of a doughnut” was a phrase coined by the late Foreign Minister of Indonesia, Ali Alatas. This global commons, beyond the EEZs of coastal States, comprises about one-fifth of the South China Sea. All States, coastal and landlocked, have the right to fish in this glob global al comm common ons. s. Howe Howeve verr, Chin China’ a’ss infa infamo mous us 9-da 9-dash shed ed line liness gobble up entirely this global commons. China’s China’s 9-dashed lines were first made known by China to its own peopl peoplee in 1947. China China offic official ially ly submitt submitted ed a map of its 9dashed lines to the United United Nations Nations only in 2009. Up to today the 5

9-dashes, which have been increased to 10 dashes in 2013, have no fixed coordinates. China has never explained the legal or factual  basis of the 9-dashed lines. Under its 9-dashed lines China asserts control and “indisputable sovereignty” to almost 90% of the South China Sea, including China’s coastal waters outside the 9-dashed lines. Of course, course, this blatantly violates violates internatio international nal law because because no State could appropriate for itself the high seas, whether before or after after UNCLOS. UNCLOS. China is the the only country country in the world world today that is claiming “indisputable sovereignty” over the high seas. Under China’s 1986 Fisheries Law, foreign fishing vessels are required to secure permission from Chinese authorities “before entering the territorial waters of the People’s Republic of China to carry carry on fishery fishery production production or investigati investigation on of fishery fishery resource resources.” s.” This law refers refers to “territorial “territorial waters” of China. Other States have have no quarrel with this Chinese law since obviously foreigners cannot engage in fishing fishing in the “territorial “territorial waters” of China. There is no disp disput utee that that Chin Chinaa has has indi indispu sputa tabl blee so sove vere reig ignt nty y ov over er its its own own “territorial waters.” Under China’s 2011 amendment to its Fisheries Law, foreign fishing vessels are required to secure permission from Chinese authorities if they wish “to enter the waters under the jurisdiction of the People’s Republic of China to engage in fishery production or survey survey of fishery resources.” This amendment refers to “waters “waters under the jurisdiction” of China, which legally is more expansive than the “territorial waters” waters” of China. Under UNCLOS, UNCLOS, a State State has  jurisdiction over its EEZ, and this jurisdiction includes the exclusi exclusive ve righ rightt to fish fish in its its own own EEZ. EEZ. Thus, Thus, other other Stat States es still still have no quarrel with China’s 2011 amendment to its Fisheries Law  because under UNCLOS a coastal state has exclusive fisheries  jurisdiction over its own EEZ. Under Under Artic Article le 35 of the Haina Hainan n Provin Provincia ciall Gover Governme nment’ nt’ss 2014 201 4 Regula Regulatio tions ns to implem implement ent China’ China’ss Fisher Fisheries ies Law Law, foreig foreign n fishing vessels “entering the waters under the jurisdiction of this  province (Hainan) to engage in fishery operations or fishery resource surveys shall secure approval from relevant departments of the State Council.” The fishery Regulations, which took effect effect January 1 this year, require permission from Chinese authorities to enter “waters under the jurisdiction” of Hainan. 6

Area of Waters under China’s Jurisdiction

 The problem arises when China’s Fisheries Law is applied to the high seas, and to the EEZs of other coastal States, that China clai claims ms fall fall with within in its 9-da 9-dash shed ed line liness in the the Sout South h China China Sea. Sea. China’s 12th  Five-Year Plan for National Oceanic Development states that the sea area under China’s jurisdiction comprises three million square kilometers. The 12th Five-Year Plan of the Hainan Mariti Maritime me Safet Safety y Admini Administr strati ation on states states that that the sea area area und under er Haina Hainan’ n’ss jurisd jurisdict iction ion compri comprises ses two millio million n squ square are kilome kilometer ters. s. The South China Sea has a sea area of three million five hundred thousa thousand nd square square kilometer kilometers. s. In the 1988 decisio decision n of China’ China’ss  National People’s People’s Congress creating the province of Hainan, Hainan’s territory expressly includes Zhongsa Island or what is internationally known as Macclesfield Bank. The Fisheries Law of China, and the fishery Regulations of Hainan, when applied to the high seas in the South China Sea, violate directly, openly and glaringly two specific provisions of UNCLOS:  first , that all States have a right to fish in the high seas; and  second , that no State can subject the high seas to its sovereignty. Let me quote from the January 24, 2014 article of Isaac Kardon in China Brief  published  published by the Jamestown Foundation:

The Xinhua Xinhua press release release announc announcing ing the new banfa (Reg (Regula ulati tion ons) s) asse assert rtss that that Hain Hainan an is resp respon onsi sibl blee for for some 2 million square kilometers of relevant maritime area ( xiangguan haiyu). The only only offic official ial docume document nt citing this figure is the relatively obscure Twelfth FiveYear Plan of the Hainan Maritime Safety Adm dmin inis istr trat atio ion n (MSA (MSA)) (Hai (Haina nan n Mari Mariti time me Safe Safety ty Adm dmin inis istr trat atio ion, n, Ju July ly 7, 20 2012 12). ). The Haina ainan n MSA document claims that the province administers roughly two thirds of China’s overall maritime space ( woguo haiyu), sets basepoints for the northern tier of waters unde un derr Hain Hainan an’’s admi adminis nistr trat atio ion, n, and and exte extend ndss a line line south-east south-east at 140 degrees degrees from the Qiongzhou Qiongzhou Straight as the north north-e -east astern ern bound boundary ary of that that zone xxx. xxx. By 7

inference, this line encloses the Macclesfield Bank, and then intersects the now-infamous U-shaped, or “ninedashed,” line, thus including the disputed Spratly and Paracels Islands as well as areas claimed as the EEZ of Vietnam, Malaysia, Indonesia, Brunei and the Philippines. xxx.

This tells us five revealing assertions.  First , Hainan claims to administer administer two million million square square kilometers kilometers of maritime maritime space, or two-thirds of China’s total claimed maritime space in the South China Sea. Second , China’s total claimed maritime space in the South China Sea is three million square kilometers. Third , since the entire South China Sea has an area of 3.5 million square kilo kilome mete ters rs,, the the mari mariti time me sp spac acee Hain Hainan an clai claims ms to admi admini nist ster er comprises 57% of the entire South China Sea.  Fourth, with a claime claimed d mariti maritime me space space of 3 millio million n squ square are kilome kilometer ters, s, China China clai claims ms 85 85.7 .7% % of the the enti entire re Sout South h China hina Sea. Sea.  Fifth, and mos mostt importantly, the maritime space China claims under its jurisdiction, and Hainan claims to administer, includes the Macclesfield Bank, as well as large swathes of the EEZs of Vietnam, the Philippines, Malaysia, Brunei and Indonesia. Wu Shicun, the head of Hainan’s Foreign Affairs Office and President of the National Institute for South China Sea Studies, York Times Times that Hainan’s told the New York Hainan’s fishing Regulations apply to “all entities within the nine dotted line and the contiguous waters.” Wu Shicun also told the Global Times that Hainan would put more focus on administering the Xisha Islands (Paracels) and Zhongsa Island Islandss (Macc (Maccles lesfie field ld Bank Bank)) and and their their adjac adjacent ent water waters. s. Shen Shen Shishun, Director of the Department of Asia-Pacific Security and Co-O Co-Ope pera rati tion on of the the China China Inst Instit itute ute of Inte Intern rnat atio iona nall Stud Studie ies, s, explai explained ned to the South China Morning Post , “Our navy and law enforc enforceme ement nt forces forces have have not patrol patrolled led the dispute disputed d areas areas often often enough. enough. Now, Now, given the strengtheni strengthening ng of their capabilitie capabilities, s, they will set up surveillance … That’s why we now require foreign fishing vessels to get permission.” Macclesfield Macclesfie ld Bank - A Part of the Global Commons

Macclesfield Bank is one of the largest atolls in the world, with with a water water surfac surfacee area area of 6,448 6,448 squ square are kilome kilometer ters, s, about about ten 8

times the land area area of Metro Manila. Manila. Macclesf Macclesfield ield Bank lies just outside the Philippines’ EEZ facing the South China Sea in Luzon Island. Macclesfield Bank is named after the  HMS Macclesfield , a British warship that ran aground in the area in 1804. Macclesfield Bank is not an island but a fully submerged atoll whose highest highest peak is some 9 meters meters below sea level. China calls Macclesfield Bank the Zhongsa Island, which is glaringly misleading because the entire area is fully submerged even at high tide. Under Under UNCLOS, UNCLOS, a geologic geologic feature feature is an island only if it is above water at high tide. Macclesfield Bank does not qualify as an island under under this this UNCLOS UNCLOS definit definition. ion. An island island is subject subject to a claim of territorial sovereignty but not a fully submerged atoll  beyond the territorial sea like Macclesfield Bank. As a fully submerged atoll beyond China’s territorial sea, Macclesfield Bank is not subject to any claim of territorial sovereignty sovereignty by China. And since Macclesfield Bank is beyond China’s China’s EEZ, China cannot also clai claim m any any so sove vere reig ign n righ rightt to expl exploi oitt excl exclus usiv ivel ely y the the fish fisher ery y resources in Macclesfield Bank. Under UNCLOS, Macclesfield Bank is part of the high seas since it is situated beyond the EEZ of any coastal state. te. Macclesfield Bank is within the hole of the doughnut in the middle of the South South China China Sea. Sea. UNCL UNCLOS OS prohi prohibit bitss any any Stat Statee from subjecting the high seas to its sovereignty. sovereignty. All States have the right to fish in Macclesfield Bank, which is part of the global commons. Macclesfield Bank, rich in fishery resources, has been a traditional fis fishing hing groun round d of Filip ilipin ino o fish fisheermen, men, just just like like the the nea nearby rby Scarborough Shoal. Grand Theft of the Global Commons

Haina Hainan’ n’ss fishin fishing g Regula Regulatio tions ns author authorize ize Chine Chinese se mariti maritime me admi admini nist stra rati tion on vess vessel elss to app ppre rehe hend nd fore foreig ign n fish fishin ing g vess vessel elss oper op erat atin ing g with withou outt perm permis issi sion on with within in wate waters rs admi admini nist ster ered ed by Hainan. Hainan. Chinese Chinese authoriti authorities es can seize seize the fish catch catch and fishing fishing equipment of these foreign vessels operating in Macclesfield Bank, and even even fine fine these these fishing fishing vessels vessels up to US$83, US$83,000. 000. Prof. Prof. Carl Carl Thayer of the University of New South Wales calls the fishery Regulations an act of “state piracy” piracy” by China. China. Others have called the fisher fishery y Regula Regulatio tions ns as the bigges biggestt seizur seizuree of intern internati ationa onall 9

waters since the 1493 Papal Line of Demarcation divided between Spain and Portugal the newly discovered world outside of Europe. I call the fishery Regulations of Hainan a grand theft of the global global commons commons in in the South China Sea. China is taking taking for for its own own excl exclus usiv ivee bene benefi fitt fish fisher ery y reso resour urce cess that that belo belong ng to all all the the  peoples of the world, as prescribed and commanded by UNCLOS. China, being a party to UNCLOS, is legally bound to comply with the provision provisionss of UNCLOS UNCLOS in good good faith. faith. By appropri appropriating ating the the fishery resources of Macclesfield Bank for its own exclusive use, China is blatantly violating its international obligation to comply with UNCLOS. The Chinese authorities have carefully presented Hainan’s fishery Regulations as routine administrative issuances that merely implement existing Chinese Chinese law. law. Thus, China’ China’s Foreign Ministry Ministry spokeswoman Hua Chunying stated, “China is a maritime nation, so it is totally normal and part of the routine for Chinese provinces  bordering the sea to formulate regional rules according to the national law to regulate conservation, management and utilization of maritime maritime biological biological resource resources.” s.” The Global Times  chimed in that that the fisher fishery y Regul Regulati ations ons are “just “just techni technical cal amendm amendment entss to China’s Fisheries Law that has been enforced for more than two decades.” The “technical amendments,” as interpreted and applied by Hainan authorities, actually bring China’s Fisheries Law into a dire direct ct and and fro front ntal al cla clash sh wit with h UNCL UNCLOS OS.. Chin China’ a’ss clai claim m of  jurisdiction over the high seas in the South China Sea creates this direct direct and frontal frontal clash. clash. As long as China China subjects subjects the high seas, seas, and the EEZs of other coastal states, to its sovereign jurisdiction, China cannot escape being in gross violation of international law, in particular UNCLOS. UNCLOS. Where the Philippines Stands

The Philippines has brought China to an UNCLOS arbitration panel to question the validity of China’s 9-dashed lines, which encroach on 80% of the EEZ of the Philippines in the West Philippine Sea, including the Reed Bank and the Malampaya gas field. field. The stakes stakes are enormous enormous not not only for the Philippin Philippines, es, but also for all States of this planet. 10

The Philippines seeks to prevent China from encroaching not only on ly on the the EEZ of the the Phili hilipp ppin inees, bu butt also lso on the the glob globaal commons commons in the South China Sea. The Philippines Philippines is fightin fighting g a legal battle battle not only for itself but also for all mankind. mankind. A victory victory for for the Phili hilipp ppin inees is a vic victor tory for all all State tates, s, coas oastal tal and landlocked, that China has shut out of the global commons in the South China Sea. Sea. ASEAN States whose EEZs are are also encroached encroached  by China’s China’s 9-dashed lines will likewise benefit immensely from a Philippine victory. If China’s China’s 9-dashed lines are allowed to stand, then there will  be no global commons in the South China Sea. If there is no global commons in the South China Sea, then there will be no global commons in the rest of the oceans and seas of our planet. Grea Greatt nava navall po powe wers rs will will appr approp opri riat atee for for them themse selv lves es what whatev ever er global global commons commons they they can can grab. grab. Coastal Coastal nations, nations, large large or small, will be forced to strengthen their naval forces to protect their own maritime zones. Naval might, not the law law of the sea, will prevail in the ocean oceanss and seas seas of our planet. planet. Th That at will will spell the the end of UNCLOS, and the end of the rule of law in more than two-thirds of the surface of our planet. As citizens of the world, we all have a profound stake in  preserving the global commons in the South China Sea. As law  professors, law students, law practitioners, magistrates and lifelong students of the law, we must employ all our legal skills to defe defend nd the rule rule of law in the South South China China Sea. Sea. As Filip Filipin inos os  blessed by the Almighty with the extensive marine resources of an archipelagic State, we must be faithful to our duty as stewards of these these marine marine resource resourcess - to protec protectt and preser preserve ve these marine marine resources in our EEZ for the present and future generations of Filipinos.


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