[OPINION] Law and justice in the West Philippine Sea

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‘The battle to defend our sovereign rights in the WPS is also a battle for the hearts and minds of the peoples of the world’
The following is former Supreme Court justice Antonio Carpio’s speech at the conferment of his honorary doctoral degree from the University of the Philippines on December 10, 2020.
One of the greatest challenges facing the country today is how to defend and preserve our sovereign rights in our Exclusive Economic Zone (EEZ) in the West Philippine Sea (WPS). What is at stake is a maritime area larger than the total land area of the Philippines, and this huge maritime area is rich in fish, oil, gas, and other natural resources.
I remember in early 1995 when China seized from the Philippines Mischief Reef, a submerged atoll within the EEZ of the Philippines in the WPS. I was then the Chief Presidential Legal Counsel of President Fidel Ramos. The Philippines was totally defenseless. We did not have the military capability to take back Mischief Reef. We could not invoke the PH-US Mutual Defense Treaty because Mischief Reef is outside the territory of the Philippines. We could not go to a tribunal under the United Nations Convention on the Law of the Sea or UNCLOS because China had not yet ratified UNCLOS at that time. This incident left a deep scar in my mind – that a powerful state could just grab what legally belonged to a weaker state, and there was no power on earth that could right such a wrong.
China had demonstrated to the world that might makes right. Ominously, China was claiming not only Mischief Reef, but 80% of our EEZ in the WPS. It was obvious that Mischief Reef was neither the first nor the last geologic feature that China would seize from the Philippines.
On August 16, 2011, I penned the unanimous decision in Magallona v. Executive Secretary, upholding the amendment to our archipelagic baselines to conform to UNCLOS. This case opened my eyes – that we could defend and preserve our sovereign rights in the WPS through the Rule of Law by questioning before an UNCLOS tribunal the validity of China’s historic claim under its nine-dash line. We had, however, to first put our house in order by bringing our archipelagic baselines into conformity with UNCLOS so that we could go to an UNCLOS tribunal with clean hands.
The petitioners in Magallona wanted the Supreme Court to declare the waters enclosed by the Treaty of Paris lines as Philippine territorial sea in violation of UNCLOS. As I stressed in my ponencia in Magallona, the absence of UNCLOS-compliant archipelagic baselines “weakens the country’s case in any international dispute over Philippine maritime space.” True enough, one of the judges in the arbitral tribunal at The Hague asked why the Philippines was questioning China’s historic nine-dash line when the Philippines itself had its own historic Treaty of Paris lines. We submitted to the tribunal the Magallona decision to prove that the Philippines had abandoned the Treaty of Paris lines and were already totally compliant with UNCLOS, showing that we had come to the tribunal with clean hands. Coming to any court or tribunal with unclean hands means getting your case dismissed outright.
On October 29, 2011, barely two months after the Magallona decision, I launched my advocacy to bring China’s nine-dash line before an UNCLOS tribunal. In my address at the 50th Anniversary of the College of Law at the Ateneo de Davao University, I stated:
“If China’s 9-dash line is questioned before an UNCLOS tribunal, there is no doubt that it would be declared as having no basis in international law. China’s 9-dash line simply cannot co-exist with UNCLOS. Upholding one means killing the other. The challenge then, for the Philippines as well as for other states trampled upon by China’s 9-dash line, is how to bring the validity of China’s 9-dash line to an UNCLOS tribunal, given that China has opted out in 2006 from the compulsory dispute settlement mechanism of UNCLOS.”
Fortunately, our own academics and graduates of the University of the Philippines helped find a way out of this jurisdictional dilemma. I had what I called the UNCLOS group, composed of Dr Jay Batongbacal, Dr Diane Desierto, the late Dr Aileen Baviera, Atty Lani Somera, Atty John Molo, Atty Elma Leogardo, and whenever they happened to be in Manila, Dr Suzette Suarez and Dr Lowell Bautista. We met periodically at a Chinese restaurant to find a way to question China’s nine-dash line before an UNCLOS tribunal despite China’s opting out of compulsory arbitration. The discussions of this UNCLOS group gave me a very clear idea on the way forward.
I submitted to then Foreign Affairs Secretary Albert del Rosario a Memorandum outlining how the Philippines could initiate an arbitration to question China’s nine-dash line before an UNCLOS tribunal. Secretary del Rosario was very receptive, and he followed my advice to secure the opinion of known international legal experts in the US and Europe on the Law of the Sea to determine the feasibility of questioning China’s nine-dash line before an UNCLOS tribunal. The response from the international legal experts was positive.
Very soon thereafter, China seized Scarborough Shoal from the Philippines following the April-June 2012 standoff between Philippine and Chinese vessels. In December 2012, when President Benigno Aquino III realized that China would remain permanently in Scarborough Shoal, he instructed Secretary del Rosario to file the arbitration case against China. With the preliminary work already mostly done earlier, the Philippines filed the following month, on January 22, 2013, its Statement of Claim against China pursuant to UNCLOS.
The Philippines did not have the military capability to take back Scarborough Shoal in any kind of armed conflict with China. So the Philippines brought China to a forum where there was a level playing field, where the dispute would be resolved based solely on the law and the facts, regardless of how many warships, warplanes, missiles, or nuclear bombs China possessed. We neutralized China’s military might when we brought the dispute before an UNCLOS tribunal. Might was no longer right.
Secretary Albert del Rosario requested me to explain to foreign policy makers, university academics, and think tanks in Europe, North America, and Asia why the Philippines filed the arbitration case against China and why the Philippines was on the right side of the law, the facts, and history. And so in 2015 I embarked on a world lecture tour to explain the South China Sea dispute from the Philippine perspective.
To most people, especially those in the West, China’s claim to ownership of the South China Sea since 2,000 years ago seemed plausible because China has an ancient civilization. We had to correct this glaringly erroneous perception. The battle to defend our sovereign rights in the WPS is also a battle for the hearts and minds of the peoples of the world, for in the end we need world opinion on our side to enforce any favorable arbitral ruling against a nuclear-armed China.
The July 12, 2016 Arbitral Award that invalidated China’s nine-dash line has affirmed with finality that the Philippines has a full EEZ in the WPS. And yes, the arbitral tribunal expressly declared that Mischief Reef is part of Philippine EEZ. So if China is still in Mischief Reef, it is there illegally as a squatter. Sea level rise by the end of this century and beyond will submerge all the naturally-formed islands of China in the WPS. Once submerged, they will form part of Philippine EEZ if within 200 nautical miles from our archipelagic baselines.
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In short, an UNCLOS arbitral tribunal has decided with finality the maritime dispute between the Philippines and China in the WPS. Nature, however, will decide with finality the territorial dispute between the Philippines and China in the WPS. Time is definitely on the side of the Philippines.
Whenever ships of foreign naval powers sail in the WPS to conduct freedom of navigation and overflight operations, including naval drills, they enforce the arbitral ruling because their naval operations can take place only if there is an EEZ in the WPS. In the WPS, only the Philippines can claim an EEZ because the Philippines is the sole adjacent coastal state in the WPS. These freedom of navigation and overflight operations of foreign naval powers, including naval drills, conducted regularly in accordance with international law and UNCLOS, are the most tangible and effective enforcement of the arbitral ruling.
Let me thank again the international team of foreign lawyers who brilliantly represented the Philippines before the arbitral tribunal and who won for the Philippines a truly landmark victory. We owe them a debt of gratitude.
I have on many occasions explained the many legal, peaceful, and non-confrontational ways of enforcing the arbitral ruling. These are actions that the Philippines can take anytime, even in the administrations that will succeed the Duterte administration.

Recently, we have seen some light at the end of the tunnel. The Philippines and China signed last November 27, 2018 the Memorandum of Agreement or MOU to cooperate in exploiting oil and gas in the WPS under the Service Contract system of the Philippines. In August of 2019 the Philippines and China signed the Terms of Reference or TOR to implement the MOU.
A final meeting was supposed to have been held in Manila between Philippine and Chinese officials last March 2020 to vet the partnership agreement that should have been forged by that time between China National Offshore Oil Company and Forum Energy. Forum Energy holds Service Contract 72 awarded by the Philippine government with an area covering Reed Bank, which has gas reserves much greater than Malampaya. However, the pandemic prevented the holding of the meeting in Manila and a new date for a meeting has yet to be announced.
In the meantime, President Duterte has lifted the moratorium on exploration activities in the WPS, a moratorium that the Philippine government imposed in 2014 after Chinese coast guard vessels harassed Philippine-commissioned survey ships operating in the WPS. This time, the Chinese government announced that it will not stop the exploration activities of Philippine survey ships in the WPS because a “consensus” has been reached between China and the Philippines, referring to the MOU and TOR.

https://www.rappler.com/voices/thought-leaders/opinion-law-justice-west-philippine-sea

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