SC justice: Duterte's China non-invasion remark 'incorrect'


Posted at Oct 25 2016 04:03 PM | Updated as of Oct 25 2016 05:27 PM

Duterte comment may be wrong, admits Yasay

MANILA - Supreme Court Senior Associate Justice Antonio Carpio is urging the government to issue a correction on President Duterte's statement that China never has invaded any part of Philippine territory. 

In a statement published Monday by Philippine Star, Carpio cited a Channel News Asia’s article quoting Duterte as saying "It (China) has never invaded a piece of my country all these generations."

Carpio argued this statement is "incorrect" because China in 1995 seized the Philippines' Mischief Reef in the Spratly Islands and invaded in 2012 the Scarborough Shoal, which are both parts of Philippine territory in the disputed South China Sea. 

He also noted that all ancient Chinese maps show Hainan Island as the southernmost territory of China, and had never included the Scarborough Shoal or the Spratlys. 

Philippine maps, by contrast, show Scarborough Shoal and the Spratlys as part of Philippine territory since 1690s, Carpio said. 

He also assailed Duterte's reported statement that Manila "has rights" to contested waters in the South China Sea, as deemed by an international tribunal, while China "has historic rights" to the waterway. 

“Regarding the Tribunal’s Final Award, President Duterte is quoted in the article as saying: ‘The arbitral award gives us the right; China has the historical right.’ That is incorrect," Carpio said. 

"The UNCLOS Tribunal at The Hague concluded: ‘The Tribunal sees no evidence that, prior to the Convention, China ever established a historic right to the exclusive use of the living and nonliving resources of the waters of the South China Sea, whatever use it may historically have made of the Spratlys Islands themselves." 

Carpio said the tribunal has explained that China’s fishing and sailing activities in the South China Sea were "uses of high seas freedom" that other states also enjoy. 

"The South China Sea was never exclusively used by China, in the past or now," he added. 

Carpio urged government to immediately correct Duterte's statements, warning that this may be used by China to weaken Philippine claim to the resource-rich sea. 

"Under international law, unilateral statements of a head of state can bind the state and can be taken against such state in an arbitration between such state and another disputant state; thus the need for the government to issue immediately a correction, lest these statements of President Duterte bind the Philippines,” he said. 


Foreign Affairs Perfecto Yasay, on the other hand, admitted that the President may make history lapses at times. But he also stressed that Duterte's reported statements on the sea row are not legally binding. 

"Maliwanag po na kahit anong sasabihin ni President Duterte off the top sa kanyang mga press interview (It is clear that whatever President Duterte says off the top in his press interviews), that is not binding. He can be wrong in his statement, especially if he will uttering some historical facts that can be not quite accurate," Yasay told radio DZMM.

Yasay added that President has maintained before Chinese leaders that Manila stands by the arbitration ruling, even as it seeks closer economic ties with Beijing. 

"Sinabi ni President Duterte na you raise a historical basis for your claim, sa amin yung arbitral tribunal na sinabing (The President said you raise a historical basis for your claim, we raise the arbitral tribunal saying) we have the legal basis, that is within our exclusive economic zone (EEZ)," the Secretary said. 

"But dahil hindi tayo nakakahanap ng solution ngayon (because we have yet to find a solution) in so far as peacefully resolving the issue, let us set that aside without prejudicing our right, then let us talk about how we can foster a closer relationship, lalo na (especially) in the area of trade and investment." 

The President, Yasay said, also maintained that "we will only start engaging China in bilateral negotiations if they are willing to accept that we will talk to them within the framework of the arbitral tribunal." 

The Permanent Court of Arbitration (PCA) in the Hague, in July, ruled that China did not have historic rights to the South China Sea, including a 320-kilometer EEZ around the Spratly islands. 

Duterte on Sunday said he will not insist that China honor the ruling for now, saying that Chinese President Xi Jinping has promised that both sides can resolve the matter peacefully. 


Yasay also said that although he appreciates advice from Carpio, the legal expert should have directly given his suggestions to the President. 

"My only advice to Justice Carpio -- because he is one of the justices that no less than our President highly respects -- if he would like to give advice to the President especially on a sensitive matter like this, he has access to the President if he wants to. He can always talks to the President and reach out to him," Yasay said. 

"Magkaibigan iyang dalawa e. He cannot say that he cannot directly talk to the President because the President really listens to him."