Carpio offers Duterte no-war options to enforce arbitral ruling
Updated @ 2:02 a.m., July 16, 2019
MANILA, Philippines — Supreme Court Senior Associate Justice Antonio Carpio on Sunday responded to President Rodrigo Duterte’s challenge to propose a plan to enforce the ruling of the Permanent Court of Arbitration in favor of the Philippines in its maritime dispute with China in the South China Sea.
Speaking at the Ateneo Law School’s graduation rites, Carpio enumerated possible options for the President, who publicly asked the senior magistrate last month to suggest ways implement the ruling without resorting to war.
“Xi Jinping [said] there will be trouble. So answer me, Justice, give me the formula and I’ll do it,” the President earlier said.
“My response is yes, Mr. President, there is a formula — and not only one but many ways of enforcing the arbitral Award without going to war with China, using only the rule of law. Let me mention a few of these, and I hope the President will implement them as he had promised,” Carpio said.
Carpio said the war or submission option should be discredited by Filipinos and the government should stop its “defeatist” attitude on the sea dispute.
“The Filipino people should not be intimidated by national leaders who peddle a false option that either we go to war with China or submit to China. This false option should be discredited once and for all. This false option does not deserve any further space or airing in the nation’s political discourse,” he said.
“We cannot just decry the absence of an enforcement mechanism under UNCLOS. We cannot adopt a defeatist attitude and just sit idly by and let China seize what international law has declared to be our own Exclusive Economic Zone,” Carpio added.
The following are the options he proposed:
- The Philippines, Vietnam, Malaysia, Indonesia and Brunei can enter into a convention declaring that, as ruled by the arbitral tribunal, no geologic feature in the Spratlys generates an Exclusive Economic Zone and there are only territorial seas from the geologic features that are above water at high-tide. This convention will leave China isolated as the only disputant state claiming EEZs from the Spratly islands.
- The Philippines can file an extended continental shelf claim in the West Philippine Sea beyond the 200-nautical mile EEZ off the coast of Luzon, where China is the only opposite coastal state. The Philippines can file this unilaterally with the UN Commission on the Limits of the Continental Shelf. China cannot invoke historic rights under its nine-dash line claim which has already been ruled without legal effect by the arbitral tribunal. China’s own extended continental shelf does not overlap with the extended continental shelf of the Philippines in this maritime area.
- The Philippines can send on patrol its 10 new 44-meter multirole-response vessels that were donated by Japan for the use by the Philippine Coast Guard. These vessels are ideal to patrol the EEZ in the West Philippine Sea to drive away foreign poachers. This will assert Philippine sovereign rights over this resource-rich maritime area in accordance with UNCLOS and bridge the gap between the rule of law and the rule of justice.
- The Philippines can welcome and encourage the Freedom of Navigation and Overflight Operations of the U.S., U.K., France, Australia, Japan, India and Canada in the South China Sea, including the West Philippine Sea. The naval and aerial operations of these naval powers, which are in conformity with UNCLOS and customary international law, have increased in frequency since the 2016 arbitral Award, and are the most robust enforcement of the arbitral award, bridging the gap between the rule of law and the rule of justice.
- The Philippines can send its own Navy to join the Freedom of Navigation and Overflight Operations of these foreign naval powers to assert its rights over the EEZ in the West Philippine Sea as ruled by the arbitral tribunal. This fortifies and enforces the arbitral Award with the support of the world’s naval powers within and outside Asia, bridging the gap between the rule of law and the rule of justice.
- The Philippine government can support private sector initiatives to enforce the arbitral award. The most creative and dramatic way of enforcing the arbitral award has been undertaken, not by the present government administration, but by three patriotic private Filipino citizens — former Foreign Affairs Secretary Albert del Rosario, former Ombudsman Conchita Carpio Morales and their counsel, lawyer Anne Marie Corominas, who filed a communication with the International Criminal Court charging Chinese leaders, headed by President Xi Jinping, of crimes against humanity.
“These should be undertaken together to fortify the Award part by part, brick by brick, until the Award is fully enforced,” Carpio said.
Friday marked the third anniversary since the Permanent Court of Arbitration in The Hague, ruling on a case brought by the Philippines, invalidated China’s claim to nearly the entire South China Sea.
President Duterte, however, has shelved the ruling in exchange for Chinese economic aid and investment packages.
Malacañang on Monday dismissed Carpio’s suggestions, insisting that the President’s diplomatic engagement with China was the “best option” for Manila in resolving its territorial row with Beijing.
“For now, the President’s best option is negotiations, diplomatic negotiations. There is no other option better than that, because you are directly dealing with your supposed enemy,” presidential spokesperson Salvador Panelo told reporters.
He said diplomatic engagement was also a “nonwar option.” —With a report from Julie M. Aurelio
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