MANILA, Philippines — China’s unbridled incursions into the West Philippine Sea and the disputed waters in the South China Sea may render the United Nations Convention on the Law of the Sea (Unclos) a dead letter treaty, retired Supreme Court Senior Associate Justice Antonio Carpio warned on Wednesday.
Speaking at a webinar on maritime security issues, Carpio warned that China’s disregard for the international agreement could eventually trigger a “naval arms race” as coastal nations would try to strengthen their own maritime security forces to protect their territories.
He reiterated that countries should come together in protecting the “rules-based maritime order” as China continued to reject the Philippines’ arbitral court victory in 2016 that recognized its 370-kilometer exclusive economic zone (EEZ) in the West Philippine Sea and invalidated China’s nine-dash line claim over the area.
“The nations of the world must unite to strongly push back [against] China,” Carpio said at the online forum organized by the Stratbase Albert del Rosario Institute.
If China succeeds in turning the South China Sea into its “own national lake,’’ the Unclos will collapse as other naval powers will also seize their new seas as their own possessions, Carpio said.
‘Might is right’
“That will mean the demise of Unclos and the end of a rules-based maritime order. That will mean the beginning of a maritime order created and enforced by naval guns and the entrenchment of the ‘might is right’ concept,” he cautioned.
The retired magistrate, who has made the Philippines’ defense of its territory in the South China Sea his personal advocacy, maintained that Beijing’s defiance did not only violate Unclos, but the United Nations charter as well.
Unclos, which took effect in 1994, defines the rights and responsibilities of nations in using the world’s oceans and establishes guidelines for the management of marine natural resources. As of 2016, some 167 countries and the European Union have signed the treaty.
“Unclos is one of the greatest achievements of men in developing international law. (It) has qualified customary international law that developed through the ages,” he said.
‘Right is might’
“Under Unclos, ‘right is might,’” Carpio said.
“Unfortunately, in the South China Sea, China has sought to overturn this ‘right is might’ concept upside down by claiming almost the entire South China Sea in glaring violation of Unclos,’’ he said.
China has been enforcing its claim outside the compulsory dispute settlement mechanism of Unclos by authorizing its coast guard to fire on foreign vessels fishing in the high seas or in the EEZs of other nations hundreds of nautical miles from China’s own EEZ, he said.
Jay Batongbacal, a maritime law expert, pointed out that China had been trying to enforce its maritime law in the West Philippine Sea even before it enacted the contentious law in February that authorized its coast guard to fire at foreign vessels entering its supposed territory.
“We have seen rather excessive actions of Chinese vessels, such as the use of water cannons and the ramming of (small boats) that caused serious damages, against Filipino fishermen,” Batongbacal said at the same online forum.
“This is clearly a threat to all non-Chinese vessels and we have seen China Coast Guard demonstrates this kind of force against Philippine vessels in Scarborough Shoal and the Kalayaan Group of Islands,” he said.
‘Little maritime accident’
Since 2014, he said at least 29 incidents of harassment and intimidation by Chinese ships against Filipino fishermen and government vessels inside the Philippine EEZ have been reported, such as the sinking of Philippine fishing boat Gem-Ver 1 in Recto (Reed) Bank by a Chinese trawler.
The June 2019 incident, which President Duterte dismissed as a “little maritime accident,” highlighted the danger that small Filipino fishermen had been facing due to the unhampered entry of Chinese vessels in the country’s traditional fishing grounds.
Batongbacal said the prolonged presence of the Chinese Coast Guard ships in the West Philippine Sea and the EEZs of Malaysia and Vietnam was “necessary for them to establish a de-facto control and administration” of these sea regions.
He said Chinese coast guard personnel had also been protecting the illegal and destructive fishing activities of their compatriots that would leave irreparable damage on Philippine-occupied reefs.
‘Token’ presence enough
Meanwhile, a US-based technology and research company said the Philippine government should build inexpensive structures in dozens of uninhabited marine features in the Spratly Islands and Pagkakaisa (Union) Banks to prevent foreign countries from occupying these areas.
Liz Derr, CEO and cofounder of Simularity, noted that despite the Philippines’ victory at the international arbitral tribunal, China did not cease building artificial islands within the Philippine EEZ and stop shooing away Filipino fishermen.
Derr, whose company has been monitoring the movements of Chinese and other foreign vessels in the West Philippine Sea using satellite images, said even a “token” presence of the Philippines in these maritime features would be enough to thwart foreign invasion.
“If the Philippines occupies the unoccupied Spratly features in its EEZ, with some research into prioritizing which to occupy and what the best level of occupation is, their EEZ will be protected,” she explained.
“We’ve seen and documented what the other claimants have been doing to shore up their claims. We’ve seen how much weaker the Philippines is in protecting their territory compared to the other claimants,” she said, adding: “If this weakness continues, we will surely see more Spratly features in the Philippine EEZ being occupied by foreign countries.”
Derr noted that Vietnam, which had set up at least four illegal structures in Philippine EEZ, built small makeshift security outposts called “DK1” to enforce its ownership claim in the South China Sea.
“The Vietnamese have managed to do all these things without provoking a war with China,” Derr stressed.
“There are many unoccupied features within the Philippine EEZ. They are basically sitting there for the taking,” Derr pointed out.