Editor's Note: We are publishing in full Headstart's interview with Supreme Court Senior Associate Justice Antonio Carpio, who shared valuable insights on Philippines' territorial disputes with the South China Sea.
July 14, 2016
Headstart, ABS-CBN News Channel
Karen Davila (KD): Given the Hague ruling and China’s reactions, I wanted to ask you first before we discuss essentially the contents of the ruling, where does it take the Philippines now?
Justice Antonio Carpio: We are going to move forward with this ruling. If you recall from 1995 to 2012, we have been negotiating with China on the West Philippine Sea and every time we sat down with China, China would say, ‘We have indisputable sovereignty. There is nothing to discuss.’ We had to pull out a tool from our tool box and that is arbitration. We got a ruling from the tribunal that the nine-dash line is invalid. We go back to China to negotiate and tell them, ‘Your nine-dash lines have no effect on our EEZ and it doesn’t exist legally.’ The next step is to go back and continue with the bilateral with China. But of course, before we do that, because a lot of countries are involved, we should consult first with our friends in ASEAN – Vietnam, Malaysia, Indonesia and Brunei – who are also affected by the nine-dash lines. After that, we have to consult with our allies and friends – the US, Japan, Australia, maybe South Korea and the EU countries – and then after that, we go and sit down with China.
KD: Let’s discuss just how important this is to the Philippines. For those who may be watching, some may think, is this just a territorial issue? Is this a sovereignty issue? Is this an economic issue or is this about protecting fishermen who fish there or is this much bigger? Are we talking in the billions of dollars at some point?
Carpio: The arbitration is about maritime dispute. It does not involve sovereignty dispute, land territory. It only involves rights to the sea, to the waters and the resources in the waters. We are talking here of an area – if you look only at the exclusive economic zone – an area of about 381,000 square kilometers of maritime space. Compare that with the Philippine land area of 300,000 square kilometers. It’s bigger than the land area of the Philippines and included in that maritime space are the fish, oil, gas and mineral resources. That’s what’s in dispute in our EEZ. We get right now, 40% of the energy requirement from Luzon comes from Malampaya. It’s the largest operating gas field that we have and Malampaya is going to run out of gas in 10 years so there is urgency for us to develop the Reed Bank that’s just beside Malampaya. But the Reed Bank has been encroached by the nine-dash lines and every time we send a survey ship there, Chinese Coast Guard vessels harass our survey ships. That’s why we had to do something about this. We had to a tribunal authorized under UNCLOS to which China has ratified. China and the Philippines are parties to UNCLOS.
KD: In a way, for those watching right now, this is really about the future of power, the economy in the Philippines and generations to come?
Carpio: That’s correct. It’s the future of energy source, the future of our food source and the future probably of new forms of energy – methane hydrates, which according to some estimates, the methane hydrates in the South China Sea could power the economy of China for 300 years. We are talking of a lot of mineral resources here in the seabed of our EEZ.
Carpio: The first sketch there, it shows that in the middle, that’s the high seas. The high seas belong to mankind. Nobody can claim it, the fish there belong to mankind. Anybody can fish there. Around that high seas is the exclusive economic zones of coastal countries China, Vietnam, the Philippines, Malaysia, Brunei and Indonesia. The nine-dash lines encroach the EEZs of these countries and encroach completely the high seas.
KD: The nine-dash line, I’d like to point out for our viewers are the ones you’ve marked with the numbers on it. What’s interesting is it’s not only until number nine. It’s until number 10. Why is that?
Carpio: In 2013, China added a 10th dash on the eastern side of Taiwan so the nine-dash lines are still growing. It became a ten-dash line but we just call it for simplicity nine-dash lines still. China claims everything enclosed within the nine-dash lines. If China gets away with it, we will lose 381,000 square kilometers of EEZ plus another about 150,000 square kilometers of extended continental shelf. It’s a huge area that we will lose.
KD: Justice Carpio has highlighted which parts belong to the Philippine based on the PCA ruling.
Carpio: The red shaded area is the disputed exclusive economic zone. We claim the red area as our exclusive economic zone but China says that is covered, enclosed by our nine-dash lines. That area is about 381,000 square kilometers of maritime space. Reed Bank is right within that area. Malampaya is partly cut through by the nine-dash lines. That’s the dispute. We brought that to the UNCLOS tribunal and after the dispute with the decision, we can go to the next slide--.
KD: Is it right that the arbitration court decided only on our EEZ, not on the whole disputed areas involving the other countries?
Carpio: Yes that’s correct because we only raised the issue of our exclusive economic zone. The other countries are not parties to the dispute that we brought. If you look at the blue area, the blue area is now undisputed legally. The tribunal said the nine-dash lines have no effect, it cannot encroach on our EEZ so everything within the blue line is now clear of legal dispute except for two features -- Scarborough Shoal and McKennan Reef.
KD: So what does the decision say about Scarborough Shoal and McKennan Reef?
Carpio: Scarborough Shoal is a high tide elevation. It’s above water at high tide so it is considered a land territory and the tribunal has no jurisdiction over land territory. But the tribunal has jurisdiction to determine what are the maritime zones emanating from that land territory and we asked the tribunal to rule that the Scarborough Shoal as a land territory can generate only 12-nautical mile territorial sea and not an EEZ of 200 nautical miles. The tribunal upheld us. That means that there is an enclave area of 12 nautical miles around Scarborough Shoal that is still disputed. We cannot claim that as undisputed unless it is submitted to arbitration again with the consent of China because in case of arbitration on land territory, China must consent.
McKennan Reef, we claimed in our submission to the tribunal that McKennan Reef is a low tide elevation. In other words, at high tide, it’s covered with water and the effect of that is it is not considered a land territory. It has no 12-nautical mile territorial sea. But the tribunal said it is a high tide elevation just like Scarborough Shoal so it is entitled to a 12-nautical mile territorial sea. That remains disputed. McKennan Reef and the 12-nautical mile territorial sea around that remain disputed. There are two disputed areas in our entire EEZ – the Scarborough Shoal and 12 nautical miles around that, and McKennan Reef and 12 nautical miles around that. Everything else, as far as the Philippines and China are concerned, has been decided by the tribunal that we have an EEZ free from encroachment by any Chinese claim.
KD: Does this mean that Filipino fishermen can go to Scarborough Shoal?
Carpio: We raised that specifically that the territorial sea of Scarborough Shoal, the 12 nautical miles around that, has been the traditional fishing ground of Filipino fishermen since time immemorial, from Zambales and Pangasinan. The tribunal upheld us that that is a traditional fishing ground of Filipino fishermen and also traditional fishing ground of Chinese fishermen. Both fishermen from China and the Philippines can continue fishing there.
KD: Is it right to say that Scarborough Shoal although undecided because it has a land feature should remain as a peaceful fishing zone for any country within the area?
Carpio: That’s correct. That should be the case. The tribunal did not only say that it is the traditional fishing ground of Filipino and Chinese fishermen but the tribunal also said that it is the traditional fishing ground of other countries. Everybody should be free to fish there. That’s actually the ruling of the tribunal.
KD: Let’s discuss the reclamation areas that China has already built. They have now built seven--fully functional, there’s a big airstrip, they have sent planes, they are submarines. By the way, how should we feel when foreigners still call it South China Sea?
Carpio: The West Philippine Sea is not the same as the South China Sea. The West Philippine Sea refers to that body of water consisting of our territorial sea, our EEZ and our extended continental shelf. We do not claim the West Philippine Sea as covering the entire South China Sea. We can continue using the West Philippine Sea because we are referring only to the waters within our jurisdiction.
KD: When foreigners call it the South China Sea, it is also correct?
Carpio: It is also correct. I use that also. I use South China Sea if I talk about the entire dispute in the South China Sea but I use West Philippine Sea if I talk of the dispute between China and the Philippines.
KD: Just for journalists all over the country, is that the better way to put it? Because Filipinos tend to be very emotional on everything.
Carpio: Depending on how you use it. If you are talking about the entire dispute of China, Vietnam, Malaysia, Brunei, you have to use South China Sea. If you are talking about the dispute between China and the Philippines, you use West Philippine Sea.
KD: With the seven islands that China has already reclaimed within the South China Sea, do any of those islands sit on the EEZ of the Philippines?
Carpio: Yes. You have Mischief Reef, that’s within our EEZ. Mischief Reef is a low tide elevation, at high tide it is completely submerged. China built an island, it’s now about 590 hectares, that’s as large as San Juan City. China has built a three-kilometer runway and they just announced today that they landed a commercial plane in Mischief Reef to test the runway. Imagine an area as big as San Juan City. It’s an airbase of China, it’s a naval base of China because the lagoon of Mischief Reef is deep. Before the dredging, it was 26 meters deep already. Now it’s deeper so it is ideal for warships and even submarines. Because it is large, they can even station there thousands of marines, soldiers. That’s one Mischief Reef, that’s within our EEZ.
You have Johnson South Reef, a low tide elevation. They built also structures there with gun in placements, with radars, but not as large as Mischief Reef. Maybe about 10 hectares reclamation.
And then you have McKennan Reef. It is within our EEZ. We asked the tribunal to rule that it is a low tide elevation but the tribunal said it is a high tide elevation and entitled to 12-nautical mile territorial sea. Those are the three reefs China has occupied within our EEZ.
KD: Let’s talk about it one by one. McKennan Reef you have already discussed that the arbitration court did not rule for any country, which would mean then that we have no say on whatever China built on McKennan Reef?
Carpio: The tribunal said that it is a high tide elevation there it is a territory. Since it is territory, the tribunal has no jurisdiction over it, to rule who owns it.
KD: Will the Philippines bring that to another court?
Carpio: Because it is a territorial dispute, we can bring China to another court only with the consent of China. It is normally brought before the ICJ but China refuses to be subjected to territorial disputes before the ICJ so I do not expect China to agree. That will remain disputed for maybe 100, 200, 300 years. We do not really need to resolve that because it is small and the gas is not there. The gas is in Reed Bank far away.
KD: Reed Bank would be close to Scarborough Shoal?
Carpio: Scarborough Shoal is off Luzon. Reed Bank is off Palawan but it is not part the Spratlys anymore.
KD: Is it fair to say that the Spratlys are uncontestedly the Philippines’ already based on the Hague decision?
Carpio: The Hague decision decided only the maritime zones. With respect to low tide elevations in the Spratlys that we raised before the tribunal and the tribunal ruled that they are low tide elevations, then that would be part of our submerged continental shelf. We have the sole right to exploit the natural resources of those submerged areas in the Spratlys and also we have the sole right to put the structures there, or artificial islands.
That’s exactly what the tribunal said. In Mischief Reef, since it is a low tide elevation, it is part of the submerged continental shelf of the Philippines, it is only the Philippines that can put up a structure island there.
KD: When it comes to Mischief Reef that is now within the EEZ of the Philippines wherein China has built the biggest military facility within the area, what do we do with that? You are not expecting China to leave?
Carpio: No, China will not just roll over and abandon that. There is really no urgency yet for us to ask China to vacate. What is urgent is Reed Bank because we need the gas there. Because the ruling says that it is a submerged area and therefore it belongs to the Philippines, legally, that structure there of China is against UNCLOS therefore it is an illegal structure, and legally they should vacate. But of course China will not vacate. It will take time. Maybe 50 or 60 years from now, that naval base of China will become useless. Technology might make it obsolete. We don’t know. But there’s really no urgency for us to kick out China. In the first place, we cannot do that.
KD: Clearly, they are squatting on Philippine property based on the decision. Should we charge for rent?
Carpio: That could be one of the negotiating points that we can raise. Since you are there already and you have put that up without our consent and the tribunal said only the Philippines can do that, we can charge them. There is no problem.
KD: It’s not against the Constitution?
Carpio: No it’s not because it can be a commercial rent, not the sovereign rent. But I have a better solution. This is for the entire Spratlys. There are six countries involved in the dispute in the Spratlys and the Spratlys are the breeding ground of our fish. Most of the fish that we catch in the South China Sea are spawned in the Spratlys.
KD: You should explain to the viewers because they may not be familiar with the location. Mischief Reef is right under the Spratlys.
Carpio: It’s part of the Spratly Group of areas. There is a proposal by an American marine biologist who taught in UP. He made his proposal in the 1990s. He said that the Spratlys be turned into an international marine peace park so the countries will suspend all their territorial claims for 50 or 100 years and allow the reef to regrow and be the breeding ground of the fish. Anyway, the larvae of the egg that are spawned in the Spratlys are carried by currents all the way to the coast of China, Vietnam, Luzon, Palawan, Malaysia, Indonesia, the Sulu Sea. Everybody benefits.
KD: Can it still grow considering there is a whole military facility there, planes taking off, coming in?
Carpio: The areas that have been dredged and reclaimed, the reefs have been destroyed already completely. But there are other reefs that are still alive and are still the breeding ground of the fish. We have to preserve that. Whatever remains of the Spratlys as breeding ground, we have to preserve that. It is for the benefit of all the coastal states. My proposal now to improve on what Professor McManus proposed more than 10 years ago is all the coastal states that have claim on the Spratlys will suspend their territorial claims for 100 years and all military facilities should be converted into marine research facilities and eco-tourism facilities.
KD: But that’s like wishing from the stars. Converting the military to a marine facility.
Carpio: It has happened. There are examples. Also, the navy will not be allowed. Only the civilian coast guards will be allowed to have personnel and ships there. That’s how we will maintain the Spratlys as the breeding ground of the fish.
KD: But it sounds like an ideal set up in an ideal world. How do you pursue that kind of plan? Where do you go?
Carpio: There is an example. The Israelis and the Jordanians were quarrelling over waters and finally as part of the peace agreement, they put up a peace park over the area that they quarreled over, over disputed water area. Because nobody loses, everybody wins.
KD: Clearly this is a diplomatic skill?
Carpio: It is a proposal that is a win-win solution for everybody. Nobody loses face because the disputes are set aside for the next 50 to 100 years and everybody benefits from that solution.
KD: What would you call it?
Carpio: I will it international marine protected area. It is like a peace park.
KD: The Johnson South Reef, are there any Philippine interest within that area?
Carpio: Because it is a low tide elevation that should be ours, but China has put up a facility there. It’s not big but it will be part of an overall solution.
KD: When President Rodrigo Duterte during the campaign essentially said, ‘I’m not going to war with China over waters.’ This is an exact quote. Did that entail the whole meaning of the dispute?
Carpio: First of all, this dispute should be resolved peacefully because the Philippines, China and the rest of the disputed states have ratified UNCLOS and UNCLOS has created a dispute settlement mechanism for all and any kind of dispute under the sea. China agreed to that. That’s why we have used UNCLOS as our vehicle to resolve the dispute because when you ratify UNCLOS, you agreed to be bound by the dispute settlement mechanism. Whether there is a dispute at the time you ratify or not, it’s immaterial. It covers any kind of dispute in the future. China ratified in 1996. We ratified earlier. We are bound by that that’s why we brought this dispute to China. There is a way of settling this dispute peacefully in accordance with international law. I take that’s the meaning of the President when he said ‘I won’t go to war over this’ because there is a dispute settlement mechanism and besides, we don’t have the capability to wage war against China. We will not start a war that we know we will certainly lose. The US and China know that this dispute is not worth going to war between the two of them. I think war is not an option. Nobody wants war. China doesn’t want war, the US doesn’t want war, we don’t want war. This can be settled under UNCLOS. Everybody has agreed to the dispute settlement in the UNCLOS. We are just following that. There is no need to reinvent the wheel because the dispute settlement is there already. It has been agreed by all countries already.
KD: You have seen the Chinese reaction and their reaction is they called the UNCLOS decision as a scrap of paper, it’s waste paper. In fact, they have increased their presence in the South China Sea and even the West Philippine Sea. Where should the Philippines go from here given that you have there’s a decision and the question worldwide is who enforces a decision where the one who you should enforce it to is ignoring the very decision?
Carpio: We have a Filipino scholar, he wrote an article, a survey of decisions of the ICJ the arbitral tribunals. In that article, he said over 95 percent of decisions of the ICJ, the ITLOS and the other arbitral tribunals were eventually complied with. But initially the losing party will say, ‘We will not comply.’ It has happened several times. The losing party will say, ‘We will not comply.’ They hold demonstrations. They threaten to withdraw but in the end, they comply. It may take time. Compliance may take other forms but the compliance is there if the other party is satisfied. In international law, you don’t expect losing party to immediately comply. It takes time. They have to prepare their people to comply especially in China, the mindset is the South China is theirs. They have been taught that from grade school to college but it will happen in the end. We have to look at this in a very long-term perspective. That’s one.
Two, the naval powers---. You see there are two parts to the ruling. When the ruling declares that the nine-dash lines are void, immediately, you have now the high seas in the middle of the South China Sea. That’s about 25%. Around the high seas you have the EEZs. Under UNCLOS, the high seas are open to mankind. The warships can sail there, war planes can fly over there. It’s freedom of navigation and flight. That is true also for the EEZs. Majority of all countries take the position that in EEZs, there’s freedom of navigation not only for merchant ships but also for warships and war planes.
KD: So when China travels there with a patrol ship?
Carpio: We cannot stop that. Our rights are only economic that’s why it’s called the exclusive economic zone. All the other rights remain. When the UNCLOS was put together, what was given to the coastal states were the economic rights. The other rights like warships to sail through, right of navigation remain.
The Americans and the naval powers other than China have said already, ‘We will sail in the high seas of the South China Sea. We will fly over there. We will sail in the EEZs of the South China Sea. We will assert freedom of navigation and overflight.’ That part of the ruling will be enforced by the naval powers. They already said that.
That other part of the ruling is the exploitation of our EEZ, the gas, the fish. How do we protect that? How do we protect that? How do we enforce that? That’s our problem because that’s not in the national interest of the naval powers. Their national interest is only on freedom of navigation and overflight. So how do we enforce now our rights to the gas?
KD: During the time of Arroyo, she had started or initiated sort of a collaboration with the Chinese government to exploit, to survey gas and oil in the Reed Bank. Should we do that today or is it against the Constitution?
Carpio: That particular case is still pending with us and I will not respond. But I will tell you in general because this is also the Foreign Secretary now has said that we will enter into joint development with China. That was before the ruling. But the ruling now says the West Philippine Sea, 381,000 square kilometers of marine space, constitute the EEZ of the Philippines and there are no overlapping EEZ from China. The Constitution says that the EEZ is part of the national territory of the Philippines. Second, the Constitution says that the state shall protect its marine wealth in the EEZ and reserve its use exclusively and enjoyment exclusively to Filipino citizens. So whether it's President Duterte or President Arroyo or any other president in the future, that cannot be compromised. You cannot enter into joint development within our EEZ. That's prohibited by the Constitution. What is allowed by the Constitution is we can contract foreign companies like Shell to drill and we will pay them in kind. But it cannot be a joint development state to state because that is our sovereign territory.
KD: Have you explained this to Foreign Affairs Secretary Yasay and to the President himself?
Carpio: I'm trying to explain it to everybody. I think the President now understands because he has said that when we negotiate with China, we will use the ruling of the tribunal.
KD: Has President Duterte asked you to in other words give him a one-on-one explanation?
Carpio: No. I have not done that yet but I am willing anytime.
KD: Because clearly, it is very complex. It is not easy to understand. You read the ruling, there is an 11-page press release. The decision is 511 pages. But you have to contextualize it with the Philippine Constitution. That’s a whole different context. What you're saying Justice is, now with the decision, you cannot get into a partnership country to country, anything in the exclusive economic zone?
Carpio: That's correct. We can and we've done it. Shell is lifting the gas in Malampaya. Shell is a 90% foreign-owned company. It can be done but they are doing that as a contractor of the Philippine government. It's not a sovereign agreement between two states. For example, PAL. PAL can lease a plane owned by a foreign company. It can be done. Even if we say that public utilities should be 60-40 because they are just tools in developing it.
KD: When it comes to the Reed Bank, what action should we take given it’s in our exclusive economic zone? Clearly we have big interest in energy, gas, oil. What direction should the Philippines honestly take right now?
Carpio: As I said, we will have consultations with our ASEAN friends, those who are also prejudiced by the nine-dash lines but they are now free from the nine-dash lines. We consult our friends and allies and then we talk to China. The ruling says the Reed Bank is ours. We will send there our survey ships again and please don't harass them anymore.
KD: The government should do that too, have that direct line to say?
Carpio: We have to say that because we have to alert them that we are sending our survey ships.
KD: With fishermen, the mayor of Zambales, I interviewed him yesterday, Mayor Lim wants to send out fishermen to already fish in Scarborough Shoal.
Carpio: With respect to Scarborough Shoal, because the decision says it's the common fishing ground so what we should do is to talk first to China because it's our common fishing ground. Let's lay down the groundwork. Let's come out with a code of conduct. Let's sit down with them first because the tribunal said it's common so we have to lay down the rules for common use so there will be no skirmishes, no fighting by fishermen. I thnk it's just prudent for us to sit down and discuss with China the rules on fishing in Scarborough Shoal.
KD: Last words Justice Carpio. Anything you want to say to the Filipino people, to Malacanang who could be watching right now?
Carpio: I think even without the ruling, the exclusive economic zone of the Philippines has been defined under UNCLOS and our laws. The exclusive economic zone is called exclusive because it is exclusive to the coastal state, to the Philippines. That's why you cannot have joint development with another country because international law and national law said it's exclusive. Why do you want to share what is exclusively yours?
What you should do is ask other countries if they have the technology to help you develop it but they are your contractors. You pay them. You can pay them in cash or in kind but you don't give up your sovereign rights over this. It is sacred. And you cannot do that, you cannot give up those sovereign rights because the Constitution prohibits that. No president can give it up.
KD: He can be impeached?
Carpio: Well it's up to Congress to do that. That's my message, that this is the exclusive economic zone of the Philippines. It is called exclusive because it's only the Philippines that can exploit it. Let's keep it that way.
KD: Do you agree that we have taken a more somber tone with the decision or some feel--Roilo Golez said Portugal threw a party after the football team won. Here, we have a landmark decision saying what is exclusively ours and you don't see anyone partying on the streets or even Malacanang celebrating?
Carpio: I think it is a cause for celebration but we have to consider other factors. We can celebrate on our own privately. I have my own celebration privately. But let us give our President a little slack, a little leeway. But he has said, ‘I will follow the ruling.’ And he will not deviate from the ruling. For me that's enough. Everything else is just a matter of style.
KD: So to ask China for a railway system in exchange for letting them develop the area is a no-no?
Carpio: Well, he said himself, the President said, that just because you're giving us a railway or helping us put up a railway, it doesn't mean we are giving up our sovereign rights. He knows that.