Statement of Justice Antonio T. Carpio On China’s Request to Survey Benham Rise

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There is no Philippine law specifically regulating marine scientific research (MSR) in our extended continental shelf (beyond the 200 NM EEZ) like Benham Rise.   

However, the Philippines having ratified UNCLOS, this international convention is part of the Philippine legal system.  Under Article 246 of UNCLOS, the Philippines has an obligation to allow foreign states to conduct MSR in its continental shelf like Benham Rise “to increase scientific knowledge of the marine environment for the benefit of all mankind.”  Thus, the results of the MSR must be made known to the whole world.

The MSR by foreign states in Benham Rise is purely for scientific research, and cannot be conducted to explore the mineral resources for purposes of exploitation of these resources.  Under UNCLOS, the Philippines has exclusive sovereign right to explore and exploit the mineral resources in its extended continental shelf like Benham Rise.  Neither the President nor the Foreign Secretary can waive this exclusive sovereign right to a foreign state. To ensure that the foreign state conducting MSR in our extended continental shelf is not exploring for purposes of exploitation, Filipino marine scientists must be on board the foreign research vessels.

UNCLOS is a “package deal,” which means that a state that ratifies UNCLOS must accept its rights and obligations as one entire package.  A ratifying state cannot cherry pick – accepting only certain provisions and rejecting others.

By refusing to accept the award of the UNCLOS arbitral tribunal pursuant to the dispute settlement provisions of UNCLOS,  China is not accepting its obligation under UNCLOS. China should not be allowed to enjoy its rights under UNCLOS, like conducting MSR in Benham Rise, while it refuses to accept its obligation under the arbitral award. Otherwise, China is cherry picking and not taking UNCLOS as one package deal.

Article 246 of UNCLOS states,  “Coastal States shall, in normal circumstances, grant their consent for marine scientific research projects by other States xxx.”   The refusal of China to comply with the arbitral award of the UNCLOS tribunal is not a “normal circumstance,” and thus the Philippines should refuse China’s request for MSR in Benham Rise.  

If a bully has squatted on your frontyard, and requests to look at your backyard, would you grant the request of the bully? China has squatted on the West Philippine Sea and refuses to leave despite the ruling of the UNCLOS tribunal.   Now, China requests to be allowed to survey the Philippine Sea on the east side of the Philippines. The Philippines would be dumb (bugok) to grant China’s request.

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