MANILA, Philippines — The government should push for a built-in enforcement mechanism in the United Nations Convention on the Law of the Sea (Unclos) to ensure China’s compliance with the 2016 arbitral award upholding Philippine sovereignty over the West Philippine Sea (WPS), according to retired Senior Associate Justice Antonio Carpio.
“The arbitral ruling is the law between parties, but unless enforced, there is no justice,” said Carpio, adding that the enforcement of the ruling that struck down Beijing’s sweeping claims over the South China Sea could be one of President Duterte’s greatest achievements.
The retired magistrate made the remarks on Thursday as he was conferred a doctor of laws degree, honoris causa, by the University of the Philippines (UP) College of Law for his continuing advocacy to protect Philippine sovereignty in the maritime dispute.
Carpio obtained his law degree from the UP College of Law and graduated valedictorian in 1975. He later taught in the college for several years.
The conferment ceremony, which was streamed live on social media, was attended by Supreme Court Associate Justices Marvic Leonen and Rosmari Carandang. Also present were retired Supreme Court Justice Conchita Carpio Morales and former Foreign Secretary Albert del Rosario, UP president Danilo Concepcion, UP Diliman chancellor Fidel Nemenzo and UP Law dean Fides Cordero-Tan.
Formula for peace
Filing the arbitration case against China was one of the greatest achievements of former President Benigno Aquino III, Carpio said in a speech.
“If the MOU and TOR arrangement with China pushes through, one of the greatest achievements of President Rodrigo Duterte will be the enforcement of the arbitral award and the application to the wider South China Sea dispute of this formula, bringing much-needed peace and stability in the region,” he added.
Carpio was referring to the memorandum of understanding and the terms of reference signed by the Philippines and China on Nov. 27, 2018, for joint oil exploration in the WPS. That development, he said, represented “some light at the end of the tunnel.’’
Provisions ‘sufficient’
A final bilateral meeting was supposed to have been held in Manila in March this year to vet the partnership agreement, but it was canceled due to the pandemic and no new date has been set.
The agreement was between China National Offshore Oil Corp. and Forum Energy Ltd., which was awarded by the Philippine government a service contract to explore the Recto (Reed) Bank area, which is said to hold gas reserves greater than Malampaya. The contract provides for a 60-40 sharing formula in favor of the Philippine government.
Carpio said the service contract stipulates that the Philippine government owns the oil and gas and that Philippine law governs the service contract. “To me, these provisions are sufficient to preserve our sovereign rights in the WPS, considering that the Chinese-owned company will be assuming the rights and obligations of the service contract under the service contract system of the Philippines,’’ he said.
“As long as the structure in the MOU and TOR is not changed, I can vouch to the Filipino people that Philippine sovereign rights in the WPS are preserved,” Carpio added.
He earlier expressed optimism that China’s declaration that it would not interfere with Philippine exploration in the WPS and would eventually lead to the settlement of the maritime disputes.
But he also acknowledged that China “may still walk back” from its commitment under the MOU and TOR. “That is why we must address the serious weakness in Unclos—and that weakness is the absence of a mechanism to enforce decisions of arbitral tribunals under Unclos. There is no world policeman who can enforce arbitral rulings of Unclos tribunals.”
Next round
While state parties are treaty-bound to comply in good faith with arbitral tribunals organized under the Unclos, there is no enforcement mechanism to prevent a losing party from going rogue, Carpio said.
“A losing state party can go rogue and there is no enforcement mechanism to stop a losing party from going rogue,’’ he said. In the next round of negotiations to update the Unclos, Carpio said the Philippines could propose a built-in enforcement mechanism similar to the World Trade Organization where the winning party can impose additional tariffs on the exports of the losing party. With such a mechanism under the Unclos, a losing state party’s deep-sea mining permits can be suspended as well as its voting rights and representation in the body, Carpio said.
Rule of law
He called on the country’s “best and brightest legal warriors” to stand up and fight to free the country’s EEZ (exclusive economic zone) from foreign encroachment. “In this historic battle to secure our EEZ, we must rely on the most powerful weapon invented by man in the settlement of disputes among states—a weapon that can immobilize armies, neutralize aircraft carriers, render irrelevant nuclear bombs, and level the battlefield between small nations and superpowers,” Carpio said.
“That weapon—the great equalizer—is the rule of law. Under the rule of law, right prevails over might,” he added. With its incursions in the WPS and the SCS (South China Sea), China has “demonstrated to the world that might makes right.”
The UP College of Law also cited the retired justice for his distinguished service in the judiciary and for his ardent defense of human rights and freedom of expression.