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Retired justice Antonio Carpio: 'As long as China does not respect the EEZs of the Philippines, Vietnam, Malaysia, Brunei, and Indonesia in the South China Sea, China will never be a true friend of these countries.' Opinion ThoughtLeaders
Retired Justice Antonio Carpio delivered these remarks at a forum convened by the Stratbase ADR Institute to mark the seventh anniversary of the July 12, 2016 arbitral award on the South China Sea arbitration. Rappler is republishing this with his permission.
Now, I will proceed to my task today – to restate the arbitral award’s core rulings that have generated, or should have generated, the most attention from coastal states. Maritime zones under UNCLOS – like the exclusive economic zone of the Philippines in the West Philippine Sea – are determined solely by the provisions of UNCLOS: 12 nautical miles for the territorial sea and 200 NM for the EEZ, both measured from baselines determined in accordance with UNCLOS, and 150 NM for the extended continental shelf measured from the outer limits of the EEZ. Under UNCLOS a coastal state can only claim maritime zones as expressly allowed under UNCLOS.
This is the first case where an international tribunal explained what constitutes a habitable island that can generate a 200-NM EEZ. Because of this ruling, many coastal states can no longer claim 200-NM EEZs for their tiny islands that do not meet the criteria of a habitable island. All these tiny or uninhabitable islands are entitled only to 12-NM territorial seas.
Third, the arbitral tribunal ruled that the Spratlys is not an archipelago because it does not satisfy the water-to-land ratio – ranging from 1:1 to 9:1 water to land ratio – required for archipelagoes under UNCLOS. Thus, archipelagic baselines cannot be drawn to connect the geologic features in the Spratlys. The arbitral tribunal also ruled that the Spratlys are too far from the main coast of Palawan to apply the straight baselines under UNCLOS applicable to fringing islands along the coast.
The arbitral tribunal further ruled that Subi Reef, which China reclaimed to host another huge air and naval base, is a low-tide feature just outside 12-NM of Pagasa Island. Absent any geologic feature between Subi Reef and Pagasa Island, Subi Reef would form part of the EEZ of the Philippines. The arbitral tribunal, furthermore, ruled that the following geologic features in the Spratlys are high-tide elevations entitled to their own territorial seas: Gaven Reef North, McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef. On the other hand, the arbitral tribunal ruled that Gaven Reef South and Hughes Reef in the Spratlys are low-tide elevations not entitled to any territorial sea.
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