UniversityOne year later: Justice Antonio Carpio tackles the PH arbitration ruling
One year later: Justice Antonio Carpio tackles the PH arbitration ruling

In July 2016, the Permanent Court of Arbitration (PCA) in the Netherlands issued a ruling in favor of the Philippines regarding its maritime disputes with the People’s Republic of China in the West Philippine Sea. The ruling was a product of a three-year process pursued by the Philippine government for a non-violent and legitimate means of asserting its claim, particularly by virtue of the United Nations Convention on the Law of the Sea (UNCLOS).

A year later, the Philippines has yet to fully benefit from the verdict, since the Chinese government has staunchly refused to acknowledge its validity.

In a talk titled “In Defense of Our Territory: How Far Does My Country Go,” Senior Associate Justice Antonio Carpio, one of the foremost advocates of the cause, expressed his opinions on the country’s current maritime situation. The talk was held last September 15 at the multipurpose hall of the Henry Sy, Sr. Hall and was co-organized by LEY La Salle together with the Commercial Law Department of the University.

 

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Behind China’s claim to the area

In 2009, China sent a map to the United Nations (UN) with their supposed national territory enclosed in a “nine-dashed line” as a protest to Vietnam and Malaysia’s extended continental shelf claims. A note verbale was attached to the map, claiming almost 85.7 percent of the West Philippine Sea, including 80 percent of the Philippines’ Exclusive Economic Zone (EEZ) and all of its resources. Among the prejudiced coastal countries were Vietnam, Malaysia, Brunei, and Indonesia, all of which protested promptly to China’s announcement of their “indisputable sovereignty” over the maritime areas in question. The Philippines, on the other hand, only filed a formal protest a year later.

Despite the delay in protest, Carpio emphasized the importance and necessity of doing so. “We have to protest, because the principle in international law is, if you do not protest an encroachment where the situation calls for your protest because your rights are being encroached, then you are deemed to have acquiesced,” said Carpio.  He also explains that China’s grand plan is to control the West Philippine Sea for economic and military purposes, which is particularly evident in their construction of air and naval bases on reclaimed islands in the area.

China’s continued assertion of their claim has negative consequences locally. One concerning case involves the dwindling gas supply in the Malampaya gas field, where Luzon sources 40 percent of its electricity. Reed Bank, which is the only viable alternative source for gas, has yet to be tapped since China has prohibited the Philippines from surveying it, warning against undertaking actions that “infringe on their sovereignty.”

From an international standpoint, nations with naval powers may experience difficulties in asserting their right to freedom of navigation once China secures the perimeters as part of its national territory. Furthermore, Carpio says that China’s blatant disregard for the rule of law may incite other countries do the same, leading to the eventual collapse of the law of the sea.

 

The Philippines’ course of action

China’s historical claims and continued expansion in the disputed area prompted the Philippine government to present their case at an arbitration tribunal of the PCA in 2013.

The five key issues presented were the following: that there is no truth to China’s historical claim, that the additional 200 nautical miles of Exclusive Economic Zone (EEZ) is not applicable to any island in the Spratlys because none are capable of supporting life, that Filipino fishermen should not be prevented from fishing in the Scarborough Shoal, that China caused irreparable harm to marine life when it dredged coral reefs to create artificial islands and when Chinese fishermen harvested giant clams from coral reefs, and that China committed unlawful acts when it refused to allow the Philippines to survey the Reed Bank.

The tribunal ruled in favor of the Philippines on July 12, 2016.

 

Enforcing the tribunal’s ruling

Despite the legal proceedings, China still insists on its own historical narrative and the invalidity of the ruling issued by the tribunal. However, Carpio points out that there are different ways to enforce the tribunal’s ruling, one of which is already being done by countries with naval powers. For instance, the United States and France have already asserted their right to freedom of navigation, openly challenging China’s claims to majority of the West Philippine Sea.

Both the Philippine Constitution and the UN Charter renounce war as an option in settling dispute. The more practical option, according to Carpio, is to talk with China while taking measures to fortify the arbitral ruling. He also acknowledges China’s extensive military capability, while ours in turn, is the rule of law and world opinion. The Philippines may be unable to raise the issue to the UN Security Council due to China’s position, but it can pursue a resolution in the General Assembly to gain support from other members—until such time that China’s claim is no longer supported by other states, pushing them to comply with the ruling.

Another possible solution that Carpio presented involves the creation of an International Marine Peace Park. “We can propose that the territorial dispute in the Spratlys be suspended for the next 100 years and we will declare the Spratlys as a marine protected area,” he explains. He also cited the creation and management of the Red Sea Marine Peace Park by Israel and Jordan as a precedent of this idea.

Lastly, Carpio added that changing public opinion among the Chinese themselves could have a significant impact on their government’s perspective of the ruling. He believes that by debunking their indoctrinated knowledge of ownership over the area, the Chinese government will come to recognize the validity of the ruling due to their constituents’ new perspective on the matter.

 

*As stated during the event, the views and opinions of Senior Associate Justice Antonio Carpio are personal and do not represent those of the Philippine government as a whole.