Supreme Court Senior Associate Justice Antonio Carpio has called on China to abandon its sovereign claims over the entire South China Sea, saying international law established 400 years ago that no nation can lay claim over seas and oceans.
"In this time and age, no state can claim an entire sea anymore … that era has long passed," Carpio said in an interview with the Elcano Royal Institute in Madrid on May 11, a transcript of which was released by the court on Tuesday.
The senior associate justice was referring to the concept of "Mare liberum" (free sea) advanced by the Dutch jurist Hugo Grotius who stated that the sea was an international territory and all nations were free to use it for maritime trade.
The English legal scholar John Selden countered with the concept of "Mare clausum" (closed sea) to claim sovereignty over waters around the British isles.
At that time, England and the Dutch Republic were fierce competitors for colonies and control of maritime trade routes.
Maritime territorial conflicts through the centuries were settled by states first through the "3-mile limit" concept in the 1700s and finally by the United Nations Convention on the Law of the Sea (Unclos) that was signed in 1982 and took effect in 1994.
"We are now [covered by] the Unclos. You are entitled to only 12 nautical miles (22.2 kilometers) of territorial seas and an additional exclusive economic zone of 200 nautical miles (370.4 km) and at most another 150 nautical miles (277.8 km) of continental shelf. You cannot claim beyond that. You cannot claim the entire sea. That's all over now, that idea in the 1600s that the world has rejected, and China is reviving it today," Carpio said in the interview.
The Elcano Royal Institute, Spain's leading international relations think-tank, was among the places in Europe where Carpio spoke last month about the South China Sea dispute upon the invitation of various organizations.
The justice addressed the Faculty of Law of the Humboldt University of Berlin, the International Institute of Social Studies of the Erasmus University in The Hague, and the Center of Asian Studies of the French Institute of International Relations in Paris.
Favorable ruling seen
Carpio said the Philippine government was waiting for the ruling of the Permanent Court of Arbitration in The Hague on the case it filed in January 2013 questioning the legality under Unclos of China's "nine-dash line" claim over the South China Sea.
An oral argument about the jurisdictional issue is set to be held next month, with the ruling expected to be issued in August or September. If the ruling on jurisdiction favors the Philippines, another hearing will be held in November.
"And after that, we wait for the decision of the tribunal. We expect the tribunal to decide on the merits with finality in the first quarter of 2016," Carpio said.
He indicated that the tribunal might have to rule in the Philippines' favor because of the Unclos, which more than 165 countries-"an overwhelming majority"-of the United Nations members had approved.
"If the tribunal will allow the nine-dash lines to stand then the Unclos will not apply in the South China Sea. If it can't apply in the South China Sea, it cannot apply in other seas/oceans because other naval powers will demand the same right as China," he said.
"We cannot create an exemption because naval powers will demand also an exemption. Why is China alone being given an entire sea? India will claim the Indian Ocean. I think we will go back to the 1200s-1500s where nations try to claim the oceans and seas," he said.
Asked how the ruling will prevent the escalation of the tension in the disputed areas, Carpio replied: "If the tribunal will declare the nine-dash line void, China, therefore, cannot claim as sovereign territorial waters the entire South China Sea. It will have to limit its claim to the islands and the 12-nautical-mile territorial sea. So that will drastically reduce the area of the conflict from the entire South China Sea to the islands. And that kind of conflict over small islands can be managed.
"So we are trying to get a ruling from the tribunal that the nine-dash-lines have no basis under international law. China can claim the island and the territories, and we can discuss that over time."
Carpio also underscored the need to settle the dispute soon. "If the dispute flares up, the world economy will be in danger because more than one half of the seaborne trade of the world passes through the South China Sea. And this dispute, if it flares up, it affects the entire world," he said.
The conflict is also affecting the Philippine economy, particularly the livelihood of fishermen who used to venture freely in the Spratlys and the Scarborough Shoal. "These are their traditional fishing grounds, and if they go there now they will be (the target of) water cannons," Carpio said.