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中国外交部对越方冲撞中国船只以及越南曾经承认西沙南沙群岛属于中国的说明 2014-06-10 12:06 #1
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2014-06-10 08:15:00 来源：环球时报
中国外交部对越方冲撞中国船只以及越南曾经承认西沙南沙群岛属于中国的说明 2014-06-12 09:13 #4
SC Justice Carpio on China’s claims
By Ducky Paredes | June 12, 2014
SENIOR Associate Justice Antonio Carpio says that an examination of early maps made by Chinsese cartographers prove that the “historical facts” claimed by China for their newly created nine-dash line is a fiction of their imagination.
“All these ancient maps show that since the first Chinese maps appeared, the southernmost territory of China has always been Hainan island, with its ancient names being Zhuya, then Qiongya, and thereafter Qiongzhou,” says Justice Carpio.
The magistrate said this shows that Hainan island, which was for centuries a part of Guangdong until 1988 when it became a separate province, has always been the boundary of the Chinese territory in the Southeast Asian region.
Carpio said even the maps of the Philippines and other nearby countries made by European cartographers also never showed the contested islands as part of China.
In fact. Justice Carpio says that China only claimed its alleged “historical facts” as basis for its maritime claims in the South China Sea after the Philippines filed in January 2013 an arbitration case against it before an international tribunal, invoking UNCLOS (United Nations Convention on the Law of the Sea).
The fact that this part of the world’s ocean is called the “South China Sea” as basis for China’s historical claims also proves nothing.
“The South China Sea was not even named by the Chinese but by European navigators and cartographers. The Song and Ming Dynasties called the South China Sea the ‘Giao Chi Sea,’ and the Qing Dynasty, the Republic of China as well as the People’s Republic of China call it the ‘South Sea’ without the word ‘China’.”
Citing foundations of international law by Hugo Grotius in the early 17th century, Carpio notes that “the oceans and seas of our planet belonged to all mankind, and no nation could claim ownership to the oceans and seas.”
“India cannot claim the Indian Ocean, and Mexico cannot claim the Gulf of Mexico, in the same way that the Philippines cannot claim the Philippine Sea, just because historically these bodies of water have been named after these countries,” he stresses.
Carpio also explains that historical facts dating back to the age of discovery in the early 15th century until the 17th century or even earlier “have no bearing whatsoever in the resolution of maritime disputes under UNCLOS.”
Thus, China’s claim of a “historical right” to the waters enclosed within the 9-dash lines in the South China Sea is without basis under international law.
UNCLOS extinguished all historical rights of other states within the 200-nautical mile exclusive economic zone of the adjacent coastal state. This is the reason why the zone is called “exclusive,” as no state other than the adjacent coastal state can exploit the economic resources in this EEZ. This is why the Unite Nations Law of the Sea (UNLOS) had to be signed by the countries of the world before it could take effect and China was among the countries that signed this!
Yet, China now claims that Panatag (Scarborough) Shoal, which it now calls Huangyan Island, is the Nanhai island that 13th century Chinese astronomer-engineer-mathematician Guo Shoujing, allegedly visited in 1279 on orders from Kublai Khan – the first emperor of the Yuan Dynasty – to conduct a survey of the Four Seas to update the Sung Dynasty calendar system.
This supposed visit of Gou Shoujing to Panatag Shoal in 1279 is the only claim by China of historical association of China with the shoal, which Carpio, in an earlier speech pointed out, was what China also used in its dispute with Vietnam over the Paracels.
He also cited a Jan. 30, 1980 document entitled “China’s Sovereignty Over Xisha and Zhongsa Islands Is Indisputable” published in Beijing Review, in which the country’s foreign ministry officially declared that the Nanhai island that the 13th Century Chinese astronomer Guo Shoujing visited in 1279 was in Xisha or what is internationally called the Paracels, a group of islands, more than 380 nautical miles from Panatag Shoal.
Carpio says Guo could not have gone ashore to “visit” the shoal because “it was just a rock, with no vegetation, and did not even have enough space to accommodate an expedition party.”
The SC justice also argued that, under UNLOS, a state may only claim “historical rights” only over waters that are part of its internal waters or territorial sea.
China failed to satisfy any of the conditions to claim historical rights under the general principles and rules of international law, such as formal announcement to the international community, continuous exercise of sovereignty over the waters it claims as its own internal waters or territorial sea, and recognition from other states.
He added that China’s new claims of the existence of the newly fashioned 9-dash line claim was “never effectively enforced.”
Since last year, Carpio had been bringing up the West Philippine Sea issue in a number of public speeches.
In a speech before members of the Philippine Bar Association in August last year, Carpio expressed fear that territorial claims over disputed areas of the West Philippine Sea could end up being dictated by naval strength and not by the rule of law, citing the tendency of China to ignore arbitration proceedings.
In a speech three months earlier before law students of the Pamantasan ng Lungsod ng Maynila, Carpio noted that under the United Nations Charter, the International Court of Justice can ask the UN Security Council to enforce its decision. The International Tribunal for the Law of the Sea or ITLOS is also a UN body.
Carpio wrote the Supreme Court decision that unanimously affirmed the constitutionality of the Philippine Archipelagic Baselines law of 2009, beating an UNCLOS deadline.
The South China Morning Post China (SCMP) reports that China plans to put up a military base after the expansion of an artificial island located on Kagitingan (Fiery Cross) Reef.
Chinese Naval Research Institute expert Li Jie, says in the SCMP report, that the military base would feature an airstrip and a port. The base will also have storage for military supplies.
Jin Canrong, a professor of international relations in Renmin University in Beijing, also said in the same report that the artificial island would be twice the size of the US military base in Diego Garcia, which occupies an area of 44 square kilometers in the Indian Ocean.
Jin also said that the proposal to construct the artificial island was submitted to the Chinese central government and that its approval would depend on the progress of reclamation on Mabini (Johnson South) Reef.
Panatag Shoal (Scarborough Shoal) has always been part of the Philippines that from the 1960s to the 1980s, Philippine and American planes used it as an impact range during joint military exercises.
Neither China nor any other country ever protested the bombing runs on the shoal.
China is claiming the resource-rich shoal off Zambales province as part of its territory, seizing it after a two-month maritime standoff with the Philippines in 2012.
“If the Philippines can bomb a shoal repeatedly over decades without any protest from neighboring states, it must have sovereignty over [that] shoal,” Carpio says.
In his talks, Carpio shows copies of maps of China dating back to the 13th century and to the 1930s, made by Chinese and foreigners, that show the southernmost territory of China has always been Hainan Island and that Chinese territory never included the Spratly Islands in the middle of the South China Sea and Panatag Shoal in the West Philippine Sea.
“There is not a single ancient map, whether made by Chinese or foreigners, showing that the Spratlys and Scarborough Shoal were ever part of Chinese territory,” Carpio says.
Carpio called China’s claim to almost the entire South China Sea, which Beijing calls “nine-dash line,” a “gigantic historical fraud” because it claims that its southernmost territory is James Shoal, which is 90 kilometers from the coast of
Bintulu, Sarawak, Malaysia–within Malaysia’s exclusive economic zone–and more than 1,700 km from China.
Under international law, a country’s territory extends up to only 370 km from its shores.
Carpio said Philippine maps from 1636 to 1940, or for 340 years, “consistently show Scarborough Shoal, whether named or unnamed, as part of the Philippines.”
Spain also ceded Scarborough Shoal to the United States under the 1900 Treaty of Washington.
“In sum, China’s so-called historical facts to justify its nine-dash line are glaringly inconsistent with actual historical facts, based on China’s own historical maps, constitutions and official pronouncements,” says Carpio.
“China has no historical link whatsoever to Scarborough Shoal. The rocks of Scarborough Shoal were never bequeathed to the present generation of Chinese by their ancestors because their ancestors never owned those rocks in the first place.”
Opinion Of The Day
- See more at: www.malaya.com.ph/business-news/opinion/sc-justice-carpio-china%E2%80%99s-claims#sthash.CftiGnG4.dpuf
Historical facts, historical lies, and historical rights in the West Philippines Sea
June 12, 2014
BY JUSTICE ANTONIO T. CARPIO
Supreme Court of the Philippines
(Excerpted from a lecture at De La Salle University on June 6, 2014)
TODAY, I shall discuss China’s assertion to so-called “historical facts” that now appear to be driving China’s maritime claims in the West Philippine Sea.
China had always asserted that its 9-dash line claim is based on international law. Thus, in the 2002 Asean-China Declaration of Conduct, China agreed that the maritime disputes in the South China Sea shall be resolved “in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea.” There is no mention whatsoever in the 2002 Asean-China Declaration of Conduct that “historical facts” shall also be a basis in resolving the maritime disputes for its maritime claims in the South China Sea. China’s mantra now states that China’s 9-dash line claim is based, in the words of Chinese Foreign Minister Wang Yi, on “historical facts and international law.”
China’s spokesperson, former deputy Foreign Minister Fu Ying, declared that the islands in the South China Sea were “first discovered by China hundreds of years before they were occupied by Japan during World War II.” Fu Ying stressed that “China has a very clear claim to these islands,” without, however, giving any specifics.
There are, of course, Chinese scholars who realize that China’s 9-dash line claim cannot stand impartial scrutiny based on actual historical facts. Professor Jin Canrong of Renmin University in Beijing, who attended the Shangri-La Regional Security Forum in Singapore, said that China should be given more time to clarify its 9-dash line claim because if it clarifies its claim now, it will face domestic political pressure.
Historical facts, even if true, relating to discovery and exploration in the Age of Discovery (early 15th century until the 17th century) or even earlier, have no bearing whatsoever in the resolution of maritime disputes under UNCLOS. Neither Spain nor Portugal can ever revive their 15th century claims to ownership of all the oceans and seas of our planet, despite the 1481 Papal Bull confirming the division of the then undiscovered world between Spain and Portugal. The sea voyages of the Chinese Imperial Admiral Zheng He, from 1405-1433, can never be the basis of any claim to the South China Sea. Neither can historical names serve as basis for claiming the oceans and seas. The South China Sea was not even named by the Chinese but by European navigators and cartographers. The Song and Ming Dynasties called the South China Sea the “Giao Chi Sea,” and the Qing Dynasty, the Republic of China as well as the People’s Republic of China call it the “South Sea” without the word “China.” India cannot claim the Indian Ocean, and Mexico cannot claim the Gulf of Mexico, in the same way that the Philippines cannot claim the Philippine Sea, just because historically these bodies of water have been named after these countries.
Neither can ancient conquests be invoked under international law to claim territories. Greece cannot claim Egypt, Iran, Turkey and the land stretching up to Pakistan just because Alexander the Great conquered that part of the world from 334-323 BC. Neither can Mongolia claim China just because Genghis Khan and Kublai Khan conquered China, with Kublai Khan founding the Yuan Dynasty that ruled China from 1271 to 1368 AD. Neither can Italy claim the land conquered and ruled by the Roman Empire from 27 BC to 476 AD, stretching from Europe to the Middle East.
Under international law, as held in the famous 1928 Island of Palmas case between the United States as the colonial power in the Philippines and the Netherlands as the colonial power in Indonesia a state cannot maintain title to territory based on discovery alone where subsequent to such discovery another state has shown “continuous and peaceful display of territorial sovereignty” over the same territory. While mere discovery may have been sufficient to acquire valid title to territory in the 16th century, the continued validity of such title over the centuries requires compliance with new conditions required by evolving international law for the acquisition of such title. Besides, since the time of decolonization after World War II, the consent of the people in the disputed territory is now paramount to any territorial claim as embodied in the right to self-determination of nations that were conquered and colonized by other states.
11. In the early 17th century, Hugo Grotius, the founder of international law, wrote that the oceans and seas of our planet belonged to all mankind, and no nation could claim ownership to the oceans and seas. This revolutionary idea of Hugo Grotius later became the foundation of the law of the sea under international law. Coastal nations could claim as their territorial sea only a narrow belt of coastal waters extending to three miles from their shore, the distance that a cannon ball could travel. The maritime space and resources beyond this three-mile territorial sea belonged to all nations.
China points to ancient Chinese maps as “historical facts” to claim the islands, rocks, reefs and waters within its 9-dash line claim in the South China Sea. At the outset, we must stress that under international law a map per se does not constitute a territorial title or a legal document to establish territorial rights.
Of course, in some cases maps may acquire such legal force, but where this is so the legal force does not arise solely from their intrinsic merits: it is because such maps fall unto the category of physical expressions of the will of the State or States concerned. This is the case, for example, when maps are annexed to an official text of which they form an integral part. Except in this clearly defined case, maps are only extrinsic evidence of varying reliability or unreliability which may be used, along with other evidence of a circumstantial kind, to establish or reconstitute the real facts.
Thus, for maps to constitute material and relevant evidence, the contending parties must agree to such maps. This is a matter of common sense, as one state cannot just unilaterally draw a map to claim an entire sea or territory and use such map as evidence of title against another state or the whole world.
Yet, this is exactly what China did in 1947 when China drew its 9-dash line map in the South China Sea, claiming as basis “historical facts.”
All maps since 1100 AD, whether done by Chinese or foreigners, show Hainan Island as the southernmost territory of China.
China’s territory never included the Spratlys and Scarborough Shoal. There is not a single ancient Chinese map, whether made by Chinese or foreigners, showing that the Spratlys and Scarborough Shoal were ever part of Chinese territory. To repeat, in all these ancient Chinese maps, the southernmost Chinese territory has always been Hainan Island.
All maps of the Philippines, from 1636 to 1940, a period of 304 years, consistently show Scarborough Shoal, whether named or unnamed, as part of the Philippines.
China’s 9-dash line claim is on its face a gigantic historical fraud. Under the 9-dash lines, China claims that its southernmost territory is James Shoal, 50 NM from the coast of Bintulu, Sarawak, Malaysia. James Shoal is a fully submerged reef, 22 meters under water, entirely within Malaysia’s 200 NM EEZ and more than 950 NM from China. How did the fully submerged James Shoal become China’s southernmost territory? Let me quote a fascinating article on James Shoal published on February 9, 2013 in the South China Morning Post, written by Bill Hayton, a well-known British journalist:
The most likely answer seems to be that it was probably the result of a translation error.
In the 1930s, China was engulfed in waves of nationalist anxiety. The predation of the Western powers and imperial Japan, and the inability of the Republic of China to do anything meaningful to stop them, caused anger both in the streets and the corridors of power. In 1933, the republic created the “Inspection Committee for Land and Water Maps” to formally list, describe and map every part of Chinese territory. It was an attempt to assert sovereignty over the republic’s vast territory.
The major problem facing the committee, at least in the South China Sea, was that it had no means of actually surveying any of the features it wanted to claim. Instead, the committee simply copied the existing British charts and changed the names of the islands to make them sound Chinese. We know they did this because the committee’s map included about 20 mistakes that appeared on the British map - features that in later, better surveys were found not to actually exist.
Another glaring historical lie being spread by China is the claim that Scarborough Shoal, or Huangyan Island to the Chinese. The alleged visit of Gou Shoujing to Scarborough Shoal in 1279 is the only historical link that China claims to Scarborough Shoal.
China is now stopped from claiming that Scarborough Shoal is Nanhai island. China has officially declared that Nanhai island is in the Paracels, and thus China can no longer claim that Scarborough Shoal is the Nanhai island that Gou Shoujing visited in 1279. Besides, it is quite ridiculous to claim that the famous Chinese astronomer-engineer-mathematician would visit and write for posterity about a few barren rocks that barely protruded above water at high tide.
China’s claim to the waters enclosed by the 9-dash line claim does not fall under any of the maritime zones recognized by international law or UNCLOS – namely, internal waters, territorial sea, EEZ, and ECS - that could be claimed by a coastal state. Only China seems to know under what maritime zone the 9-dash line waters fall, but China is not telling the world except to claim “indisputable sovereignty” over such waters by “historical rights.”
Not a single country in the world recognizes, respects, tolerates or acquiesces in to China’s 9-dash line claim. China has never effectively enforced its 9-dash line claim from 1947 to 1994 when UNCLOS took effect, and even after 1994 up to the present. Thus, under the general principles and rules of international law, China cannot claim “historical rights” that pre-dated UNCLOS. Even assuming, for the sake of argument, that China has such “historical rights,” the entry into force of UNCLOS in 1994 extinguished such rights. Under UNCLOS, a state cannot claim any “historical right” to the EEZ or ECS of another state.
There is nothing “historical” or “right” about China’s 9-dash line claim. The 9-dash line claim is based not on historical facts but on historical lies. Since the start of the Song Dynasty in 960 AD until the end of the Qing Dynasty in 1912, a period of 952 years or almost a millennium, the southernmost territory of China has always been Hainan Island based on all official and unofficial maps of China. After the establishment of the Republic of China in 1912, the Constitutions adopted by China from 1912 to 1946 consistently declared that the territory of the Republic of China remained the same as the territory of the Qing Empire. As late as 1932, the Chinese Government in a Note Verbale to France reiterated to the world that the southernmost territory of China is Hainan Island. These unilateral declarations of China are binding on China under international law. The southernmost territory of China under its imperial dynasties was always Hainan Island, and has remained so under several Constitutions of the Republic of China.
Neither the Spratlys nor Scarborough Shoal appeared in any Chinese dynasty maps, as obviously the Spratlys and Scarborough are several hundred miles farther south to Hainan Island. In fact, the Spratlys are more than 600 NM, and Scarborough Shoal is more than 500 NM, from Hainan Island, at the other end of the South China Sea. The Chinese claim today that Scarborough Shoal is the Nanhai island where Guo Shoujing erected a celestial observatory is a double lie because China already officially declared in 1982 that Nanhai is in the Paracels, and it was physically impossible for Guo Shoujing to have erected an observatory in Scarborough Shoal.
Numerous ancient maps made by Westerners, and later by Philippine authorities, from 1636 to 1940, consistently showed that Scarborough Shoal, a.k.a. Panacot and Bajo de Masinloc, has always been part of Philippine territory.
Scarborough Shoal has never appeared in a single ancient Chinese map throughout the long history of China. Neither is there any historical record of any Chinese expedition to Scarborough Shoal. In contrast, the Spaniards and the Americans extensively surveyed Scarborough Shoal during the time they were the colonial powers in the Philippines.
In sum, China’s so-called “historical facts” to justify its 9-dash lines are glaringly inconsistent with actual historical facts, based on China’s own historical maps, Constitutions, and official pronouncements. China has no historical link whatsoever to Scarborough Shoal. The rocks of Scarborough Shoal were never bequeathed to the present generation of Chinese by their ancestors because their ancestors never owned those rocks in the first place.
Opinion Of The Day
- See more at: www.malaya.com.ph/business-news/opinion/historical-facts-historical-lies-and-historical-rights-west-philippines-sea#sthash.l23nEyK1.dpuf
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