Based on applicable international maritime and related laws, China knows that if she petitions the United Nations International Court of Justice or the International Tribunal for the Law of the Sea to affirm her dubious claim that she owns everything in the South China Sea aka West Philippine Sea — her chances of winning are about as likely as having a snowfall in the Sahara desert.
Both Courts have proper jurisdictions to settle sovereignty issues between nations regarding marine territories — such as those concerning the Spratly and Paracel islands.
Let’s imagine what most likely would happen if China does take her case to the International Court of Justice and the representative of China — let’s call him Mr. Lee — is before the Court headed by the Presiding Judge. Consider this scenario:
Judge: “Please inform this Court of the basis for your claim that the entire South China Sea aka West Philippine Sea belongs completely to the People’s Republic of China?”
Mr. Lee: “Thank you, your honor. Our claim is based on the historical fact that this entire area has belonged to us since the Han Dynasty.”
Judge: “How do you intend to prove your case?”
Mr. Lee: “I will present to this Court an almost two thousand year old Han Dynasty map that indicates the limits of the Han Dynasty kingdom.”
Judge: “Let’s assume for purposes of discussion that the Philippines, Vietnam, Malaysia, Brunei and other surrounding countries were provinces or part of the Han Dynasty during its time even if the map you hold may just actually be a navigational map which does not really define the limits of the Han Dynasty. Now my study of China’s history indicate that the Han Dynasty lasted from 206 B.C. To 220 A.D. Is this correct?”
Mr. Lee: “Yes your honor.”
Judge: “I assume Mr. Lee that you are familiar with Alexander the Great, the young Macedonian king who conquered much of the ancient world.”
Mr. Lee: “I am, your honor.”
Judge: “At the time of his death in 323 B.C., Alexander’s kingdom included Greece, Syria, Persia now known as Iran, Egypt and a part of India. Are you aware Mr. Lee that Macedonia, Alexander’s country — is now known as the Republic of Macedonia?”
Mr. Lee: “If you say so your honor.”
Judge: “Good! You appear to know your history. I assume you are also familiar with the Roman Empire which existed for over a thousand years.”
Mr. Lee: “Thank you your honor, I do read history.”
Judge: “You are then aware Mr. Lee that at its height, the Roman Empire included most of Europe and parts of Africa and Asia.”
Mr. Lee: “I am aware, your honor.”
Judge: “Now Mr. Lee, since the time of Alexander, the Roman Empire and the Han Dynasty — through the course of time and historical events, various independent countries have emerged in Europe, Africa and Asia — which now have their own respective territories. This is a reality which we all have to accept, wouldn’t you say?”
Mr. Lee: “We cannot deny reality, your honor.”
Judge: “Now Mr. Lee, another undeniable reality is that Alexander’s empire, the Roman empire and the Han Dynasty kingdom are no longer existent — am I correct in my observation?
Mr. Lee: “You are correct, your honor.”
Judge: “Now Mr.Lee, in all candor, do you seriously believe that if the Republic of Macedonia and the Italian government were to come before this Court and petition us to affirm that they own the territories of these now independent countries because they were once a part of Alexander’s empire or the Roman empire — that we would be persuaded to grant these petitions?”
Mr. Lee: “I understand what you are getting at, Judge — but most of what we are claiming as ours is marine area and not land.”
Judge: “The Spratlys and the Paracel islands are not land? Anyway, isn’t it a fact that China is a signatory to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) which she ratified on July 6, 1996 thereby agreeing to be bound by its provisions — and part of which is that anything within 200 miles from the baseline of a country belongs to that country?
Mr. Lee: “China did agree to those provisions at a time when it was not yet aware of the far reaching consequences of UNCLOS to her national interests.”
Judge: “I will not mince my words Mr. Lee. What you mean is that at that time, the world, including China, was not yet aware, that vast deposits of oil and natural gas were to be found within the territorial limits of neighboring countries. Now because of this awareness, even if China knows she is trespassing and violating international law, she is using the coercive might of her size, military or otherwise — to grab these enormous reserves of petrowealth from the territories of her smaller, weaker, poorer neighbors — who badly need these assets to improve the plight of their own people.
Postscript: In view of all the facts and existing applicable law, the likelihood is that the UN court will find China’s petition to be without merit.
Notwithstanding requests from the Philippines, neighboring countries and the United States to bring West Philippine Sea sovereignty issues to the United Nations, China has steadfastly refused to do so. Instead, it is constantly involved in mind games, using scare tactics, insisting that everything in the whole West Philippine Sea is theirs and that this issue is non-negotiable.
By so doing, the gigantic oil hungry dragon seeks to condition the national minds of her neighbors to forcibly accept inequitable bilateral settlement agreements — without United Nations or United States involvement. The Philippines, Vietnam and other neighbor countries must not fall into this trap. They should unite and create an alliance and insist — with the aid of the global community, with military means if necessary — that China should respect their rights and leave their national patrimony alone.
The most loudly applauded part of President Benigno Simeon Aquino’s State of the Nation speech was his strong affirmation that what belongs to the Philippines stays in the Philippines. Everyone understood his meaning: The Philippines will stand firm against China’s bully tactics and mind games in trying to grab our energy and marine resources.
What a big difference to have a trustworthy President who provides moral leadership and looks after the interests of the nation instead of one ready to sell out the country’s patrimony for personal gain.
Commentary: Based on the historical claim of the Han Dynasty’s Territory, China is doing a disservice to its current territory integrity as the current China encompasses more land than the Han Dynasty’s land. According to its claim grounded on the Territory of the Han’s Dynasty, the new territories acquired throughout the history should be independent from China. Reasonable arguments should be 2-sided.
Note: The California State Bar honors Attorney Ted Laguatan as one of the best lawyers in the country. He is one of only 29 U.S. lawyers officially certified continuously for more than 20 years as an Expert Specialist in Immigration Law. For communications: (San Francisco area)