Justice Carpio legal mind behind Phl arbitration case

Now it can be told: The case filed by the Philippines before the UN Permanent Court of Arbitration in the Hague challenging China’s claims over disputed maritime territories based on the so-called nine-dash line was based on Supreme Court Associate Justice Antonio Carpio’s legal work on the issue. According to an insider, Justice Carpio has been a secret consultant of the DFA regarding the West Philippine Sea, with the President getting a briefing on Carpio’s position. The Senior SC Associate Justice also correctly predicted that world opinion will eventually swing against China – finding itself getting isolated if it sticks to its hard line stance.

A lawyer friend who obtained a copy of Justice Carpio’s lecture titled “Historical Facts, Historical Lies, and Historical Rights In the West Philippine Sea” at La Salle last week said he found the presentation comprehensive and compelling with maps, international cases, rulings and recorded events cited as basis for the Philippine position.

Carpio debunked China’s assertion of the so-called “historical facts” and its insistence that the nine-dash line claim is based on international law, pointing out that 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 on international law including the 1982 UN Convention on the Law of the Sea. UNCLOS is the primary international law governing the use of the oceans and the seas, and although it only regulates claims and disputes but not territorial disputes, there is no mention whatsoever in the 2002 ASEAN-China Declaration of Conduct that “historical facts” shall also be the basis in resolving maritime disputes.

Even if such historical facts were true relative to discovery and exploration (even before the 15th century), they have no bearing whatsoever in the resolution of maritime disputes under UNCLOS, he said. Neither Spain nor Portugal can ever revive their 15th century ownership claims over most of the oceans and seas on earth despite the 1481 Papal Bull confirming the division of the then undiscovered world between Spain and Portugal, Carpio pointed out.

Thus, Chinese assertions about the sea voyages of an Admiral Zheng cannot be the basis for claiming the whole of the South China Sea – which was not even named by the Chinese, but by European navigators and cartographers. For example, can India claim the whole Indian Ocean, or can Mexico claim the Gulf of Mexico on the basis of these “historical names”? Likewise, the Philippines cannot claim the Philippine Sea just because historically this body of water was named after our country, the SC Justice reasoned. He also added that 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.

“The continued validity of one’s title over a territory in the 16th century requires compliance with new conditions required by evolving international law for the acquisition of such title,” he stressed, with the consent of the people in disputed territories now paramount to any claim as embodied in the right to self-determination of nations that were conquered or colonized by other states.

The lecture presentation is very substantive with maps, illustrations and historical records and scholarly work cited. The claim by China that the islands, rocks, reefs as well as the waters enclosed by its nine-dash line (which Carpio described as “a gigantic historical fraud”) is based on ancient history is “glaringly false,” and patently contrary to indisputable historical facts, he reiterated, explaining that since 6,000 years ago, the “South China Sea has been the migration and trading routes, as well as the fishing grounds, of all the peoples and states bordering the South China Sea.” 

Historical rights have no place in the South China Sea, the lecture concludes, because fishing rights that other states historically enjoyed were terminated by the UNCLOS via the 200 nautical miles exclusive economic zone of the adjacent coastal state. That is why this 200 NM zone is called excusive – no state other than the adjacent coastal state can economically exploit its resources. 

PetroTiger’s costly lesson

We came across this interesting Wall Street Journal piece by Joel Schectman about the case of former AG&P chairman Joseph Sigelman who was indicted by a New Jersey Federal Grand Jury for fraud, money laundering and bribery. The piece summed up how a Canadian pension plan looking for higher returns on its investments found itself mired in a scandal and ended up reporting bribery allegations against the US founders of a Colombian oil firm.

Alberta Investment Management Corp. (AIMCO) invested $85 million in PetroTiger founded by Knut Hammarskjold and Sigelman, with the latter’s legendary success and his sales pitch impressing then-AIMCO vice president Brain Gibson. Little did the Canadian pension firm know that the PetroTiger board was already disputing with management – precisely because “when people try to sell you a business, they don’t tell you all their dirty laundry,” Gibson recalled. Pretty soon, the board ousted Sigelman and Hammarskjold, and an investigation was soon launched on company books.

That’s when they discovered the “consulting invoice” paid to the wife of an official at the state-owned Ecopetrol – the same one who gave PetroTiger a $39-million contract. Fearing responsibility for any misconduct that might have been committed by Sigelman and Hammarskjold, the PetroTiger board reported the suspected bribery violation to US prosecutors.

Lesson: Take a closer look at company expenses and review every invoice immediately after investing in a company, Gibson said.

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