MANILA (UPDATE) - President Rodrigo Duterte's statement that the Philippines' arbitral victory over China on the South China Sea is a mere "scrap of paper" is dangerous because it is considered binding when uttered by a head of state, retired Supreme Court Senior Associate Justice Antonio Carpio warned Monday.
Carpio said there is a principle in international law, which says a country is bound by the statements of its president if these are accepted by the other country.
This means then, that China can later say the Philippines has abandoned its claim on territories in the West Philippine Sea following Duterte's statements, he said.
"The head of state like the President, if he makes a statement adverse to his nation on an ongoing dispute, that statement binds his nation if accepted by the other country. So when President Duterte said 'that award is just a scrap of paper, I will throw it to the wastebasket', that can be deemed an abandonment. And if China agrees...China will later say: 'You already abandoned it,'" Carpio said in an interview on ANC's Headstart.
"The Filipino people must demand that President Duterte must retract all these statements. He must retract. All of us must come out with manifestos, position papers; all organizations, all schools must come out with resolutions," he added.
PALACE SAYS CARPIO VIEW 'OUTDATED'
Duterte's spokesman Harry Roque said Carpio was "wrong".
"Laos na po iyong view na ang Unilateral Act is a source of international law. Laos na po iyan. Ang kinikilala po is estoppel," Roque, a lawyer, said in a press briefing.
(The view that Unilateral Act is a source of international law is outdated. What is recognized now is estoppel.)
Estopel is a legal principle that prevents one from alleging or denying a fact because of one's own previous actions or words to the contrary.
"Ang sinabi lang ni Presidente, 'it’s a piece of paper', dahil nga po walang enforcement mechanism ang international law, lalung-lalo na ang mga bilateral arbitration," said Roque.
(The President only said 'it's a piece of paper' because international law has no enforcement mechanism, especially for bilateral arbitrations.)
"Hamon ko po kay Justice Carpio, para matigil na po itong walang tigil ninyong mga statements, sabihin ninyo po, paano ninyo naiisip na maipatupad iyan?"
(My dare for Justice Carpio, so that his endless statements will stop, tell us, how do you think that can be enforced?)
WHAT SHOULD DUTERTE DO?
Duterte should retract his statement that the arbitral award is a mere scrap of paper that he wants to throw into a waste basket, Carpio said. Duterte was "siding with China" in this statement, and China can use this against the Philippines in the future, said the former magistrate.
Another statement that Duterte must take back is that China is in possession of the West Philippine Sea, because "physically, China is not in possession; legally, China is not in possession," said Carpio.
"If he says that, what happens to our fishermen? What happens to the service contractors? They will not get the gas," he said.
He added, "China is not even claiming that it is in possession of the West Philippine Sea."
"Why will the President concede something that China is not even claiming? When the President says that, it sends a signal to the service contractors: They are in danger if they go to the West Philippine Sea. It sends a signal to our fishermen: Their lives are in danger," he said.
Third, Duterte should also stop allowing the Chinese from fishing within the Philippines' exclusive economic zone. Carpio said the Constitution mandates that resources within this zone are for the exclusive use of the Filipinos.
Duterte last month said he was "not so much interested now in fishing," but he will "act on it" if China drills oil, or excavates nickel and precious stones from the area.
"We need the fish. Galunggong is so expensive. We need the protein and the protein is in the fish. Our people are malnourished and you can see there’s a lack of food everywhere. The hunger has gone up to 62 percent, and we still allow the Chinese to fish in the West Philippine Sea?" said Carpio.
He also pointed out that the total value of fish taken from the entire South China Sea is estimated at $22 billion a year. If "at the minimum," 10 percent of that came from the West Philippine Sea, the $2.2 billion is "a lot of money for our fishermen."
Asked if ordinary citizens can take the matter of retraction before the Supreme Court, Carpio said: "Yes, we can, but I think better for him to just withdraw."
China's sweeping claims over almost the entire South China Sea was invalidated by the 2016 arbitral award.
- with report from Jamaine Punzalan, ABS-CBN News