MANILA — In one of his strongest statements yet against President Rodrigo Duterte’s foreign policy towards China, retired Supreme Court Senior Associate Justice Antonio Carpio on Friday encouraged Filipinos to “wake Duterte” from his sleep and correct the narrative that China is in possession of the West Philippine Sea.
“Shout out to President Duterte that China is not in possession of the West Philippine Sea. Shout out loud so that President Duterte will wake up from his sleep under the kulambo (mosquito net) and admit to the nation the truth — that China is not in possession of the West Philippine Sea,” he said in an online forum Friday organized by the Philippine Bar Association.
Carpio was among speakers at the forum that tackled enforcement of the 2016 arbitral award the Philippines won before a UN-back tribunal which declared that the country has an exclusive economic zone (EEZ) on a portion of the South China Sea, now called the West Philippine Sea.
Having an EEZ under the United Nations Convention on the Law of the Sea (UNCLOS) means a coastal state has jurisdiction over exploration and exploitation of marine resources in an area 200 nautical miles from the coast.
Citing Duterte's "self-inflicted blows" that favored China on the sea dispute, the retired magistrate said the President's repeated statements claiming China is in possession of the West Philippine Sea is “grossly incorrect.”
Duterte made these remarks in November 2018, on 2 state of the nation addresses in 2019 and 2020, and again in April this year.
Carpio clarified China is actually in possession of only 8 geologic features in the Spratlys plus Scarborough Shoal, which together constitute less than 7% of the total maritime area in the West Philippine Sea.
He noted all ASEAN states agree with the arbitral award and all outside naval powers support it. China is the only state that opposes it.
Carpio and Duterte have, on several occasions, engaged in a verbal exchange over the West Philippine Sea, the latest on Wednesday with Duterte taunting Carpio: “If you’re bright, why did we lose the West Philippine Sea?”
He also responded on Thursday reminding Duterte it was former President Benigno Aquino III who won the arbitral award only for Duterte to set it aside.
On Friday’s forum, he faulted Duterte for being one of 2 challenges to the enforcement of the arbitral award, the other being China.
Carpio enumerated these “self-inflicted blows” that he said Duterte had committed against the arbitral award, aside from his remarks on supposed Chinese possession of the Philippine EEZ:
- Duterte’s statement shortly after taking office setting aside the arbitral award to secure $22 billion in loans and investments from China, of which less than 5% has so far materialized
- Duterte's statement in September 2016 that the Philippine Navy will patrol only territorial seas, not the Philippines’ EEZ
- Duterte's decision in July 2019 to enter into a verbal fishing agreement with Chinese President Xi Jinping, which Carpio said is a derogation of the exclusive sovereign right of Filipinos to fish in the West Philippine Sea
- Duterte's July 2019 State of the Nation Address where he admitted to being “inutil” or useless in defending the West Philippine Sea
CHALLENGES TO ENFORCEMENT OF ARBITRAL AWARDS
International law experts who joined the panel admitted that enforcing an arbitral award is not easy as international tribunals do not usually have the means to implement their rulings.
“The matter of enforcement of international law has long been a sore point in the theory and practice of international law,” said Dr. Brendan Plant, a fellow at the Lauterpacht Centre for International Law and Downing College at the University of Cambridge in the UK.
“As with any legal decision making, the post-adjudication phase is primarily political in nature and strategies and techniques must be devised and pursued to motivate a state to comply with an order made against it,” he added, explaining the absence of a unitary enforcement structure that leads to a “politicized” enforcement of a legal award.
He said that while resort to UN mechanisms is possible, China could veto some measures under the UN Security Council.
Dr. Julian Ku, Senior Associate Dean for Academic Affairs at the Maurice A. Deane School of Law at the Hofstra University in the United States, said he was initially critical of the Philippine government’s 2013 move to resort to arbitration because of the difficulty of enforcing an award.
“Bringing the award, even if it led to a positive legal result as it did, was always going to be very challenging for the Philippines, at this stage, enforcement, and would have required a really detailed plan not just to win the law to win your judgment in court but a really good strategy to implement and push and use that judgment to defend the interest of the Philippines afterward,” he said.
While he acknowledge that the Philippines was “extremely effective” in winning the award, it’s strategy for enforcing it was “less so.”
“It was never gonna be easy to get a country like China to comply with arbitral award that was against it. But I think the Philippine strategy was one of the less effective ways it could have been done and I think it’s difficult at this stage, several years later to have a positive development,” he said.
PH MUST TAKE THE LEAD
Both experts said there are several measures the Philippines could take to have the award enforced.
Plant suggested that the Philippines could try again resorting to a judicial settlement by filing a new dispute due to China's non-compliance with the 2016 arbitral award.
“If we were to assume that China has not complied with the 2016 award, that, in itself is an internationally-wrongful act — not complying with a binding ruling is an internationally-wrongful act which may form the basis of a new dispute and non-compliance is internationally wrongful — a breach of obligations under UNCLOS and international law which gives the Philippines as injured state the same rights it would have when faced with any internationally wrongful act,” he said.
Ku suggested a “diplomatic shamefare” — coming up with ways to “shame” China in international fora such as the United Nations General Assembly (UNGA).
“International relations literature has shown that this kind of shaming does have an impact. It won’t induce immediate compliance but it does create costs and raises the cost of non-compliance,” he said.
He also suggested seeking economic sanctions against China.
But Ku emphasized the Philippines must take the lead in the campaign since it is the injured party.
“If the Philippines doesn’t care about interests in South China Sea, why should any other country in the world? It’s gotta start with the Philippines for any effective pushback against, what are after all, in theory anyway, violations of the Philippine sovereign rights over the EEZ and perhaps over its sovereign territory,” he said.
WHAT CAN PH DO TO ENFORCE ARBITRAL AWARD?
In his speech Friday, Carpio recommended several initiatives that the Philippines could explore to enforce the arbitral award, including sponsoring a resolution before the UNGA to demand that China comply with the award.
He cited as examples the cases of Nicaragua in 1997 when the United States refused to recognize the decision of the International Court of Justice (ICJ) to pay damages for supplying arms to Contra rebels and mining the harbors of the country, and Mauritius when it secured UNGA backing to enforce an ICJ ruling that the United Kingdom should return the Chagos Archipelago.
“A resolution of the UN General Assembly calling China to comply with the Award will send a strong moral message to China that the world will not legitimize China’s illegal act of seizing the South China Sea,” he said.
He also suggested entering into a convention on the South China Sea with other adjacent coastal states incorporating and implementing the arbitral award by practice.
The 2016 arbitral award rejected China’s nine-dash line claim which invoked historic rights to claim more areas in the South China Sea.
Carpio also proposed that the Philippines conduct joint patrols with neighboring coastal states in their respective EEZs and join freedom of navigation operations with the United States, United Kingdom, France, Japan, Australia and Canada.
The country could also encourage Indonesia, Malaysia and Vietnam which has disputes with China, to question the latter's claim to additional fishing rights to strengthen the 2016 arbitral award or agree with them to establish the Spratlys as a marine protected area, suspending their claims for the next 100 to 150 years.
He said the Philippines could file an extended continental shelf claim before the UN Convention on Limits of Continental Shelf.
But Duterte’s attitude towards the ruling, Carpio said, means the arbitral award will have to be enforced “under a new administration, after President Duterte leaves office in June 2022.”