SC Justice Carpio to Duterte: Here are non-war options to enforce WPS arbitral ruling


MANILA, Philippines – Supreme Court Senior Associate Justice Antonio Carpio on Sunday responded to President Rodrigo Duterte’s challenge to come up with a plan to enforce the Philippines’ legal victory against China in the West Philippine Sea / South China Sea territorial dispute.

Speaking at the Ateneo Law School’s graduation rites, Carpio enumerated possible options for Duterte, who publicly asked the senior magistrate last month to suggest ways implement the Permanent Court of Arbitration’s ruling in favor of the Philippines.

“Xi Jinping (said) there will be trouble. So answer me, Justice, give me the formula and I’ll do it,” Duterte earlier said.

“My response is yes, Mr. President, there is a formula — and not only one but many ways of enforcing the arbitral Award without going to war with China, using only the rule of law. Let me mention a few of these, and I hope the President will implement them as he had promised,” Carpio said.

No war option

Carpio said the war or submission option should be discredited by Filipinos and the government should stop its “defeatist” attitude on the sea dispute.

“The Filipino people should not be intimidated by national leaders who peddle a false option that either we go to war with China or submit to China. This false option should be discredited once and for all. This false option does not deserve any further space or airing in the nation’s political discourse,” he said.

“We cannot just decry the absence of an enforcement mechanism under UNCLOS. We cannot adopt a defeatist attitude and just sit idly by and let China seize what international law has declared to be our own Exclusive Economic Zone,” Carpio added.

The following are the options proposed by Justice Carpio:

The Philippines, Vietnam, Malaysia, Indonesia and Brunei can enter into a Convention declaring that, as ruled by the arbitral tribunal, no geologic feature in the Spratlys generates an Exclusive Economic Zone and there are only territorial seas from the geologic features that are above water at high-tide. This Convention will leave China isolated as the only disputant state claiming Exclusive Economic Zones from the Spratly islands.

The Philippines can file an extended continental shelf claim in the West Philippine Sea beyond our 200-NM Exclusive Economic Zone off the coast of Luzon, where China is the only opposite coastal state. The Philippines can file this unilaterally with the UN Commission on the Limits of the Continental Shelf. China cannot invoke historic rights under its nine-dash line claim which has already been ruled without legal effect by the arbitral tribunal. China’s own extended continental shelf does not overlap with the extended continental shelf of the Philippines in this maritime area.

The Philippines can send on patrol its 10 new 44-meter multi-role response vessels that were donated by Japan for the use by the Philippine Coast Guard. These vessels are ideal to patrol our Exclusive Economic Zone in the West Philippine Sea to drive away foreign poachers. This will assert our sovereign rights over this resource-rich maritime area in accordance with UNCLOS, and bridge the gap between the rule of law and the rule of justice.

The Philippines can welcome and encourage the Freedom of Navigation and Overflight Operations of the U.S., U.K., France, Australia, Japan, India and Canada in the South China Sea, including the West Philippine Sea.The naval and aerial operations of these naval powers, which are in conformity with UNCLOS and customary international law, have increased in frequency since the 2016 arbitral Award, and are the most robust enforcement of the arbitral Award, bridging the gap between the rule of law and the rule of justice.

The Philippines can send its own Navy to join the Freedom of Navigation and Overflight Operations of these foreign naval powers to assert, on behalf of the Philippines, that there is an Exclusive Economic Zone in the West Philippine Sea belonging to the Philippines as ruled by the arbitral tribunal. This fortifies and enforces the arbitral Award with the support of the world’s naval powers within and outside Asia, bridging the gap between the rule of law and the rule of justice.

The Philippine Government can support private sector initiatives to enforce the arbitral Award. The most creative and dramatic way of enforcing the arbitral award has been undertaken, not by the present government administration, but by three patriotic private Filipino citizens. These brave Filipinos, former DFA Secretary Albert del Rosario, former Ombudsman Conchita Carpio Morales and their counsel Atty. Anne Marie Corominas, using the rule of law, filed a communication with the International Criminal Court charging the Chinese leaders, headed by President Xi Jinping, of a crime against humanity.

“These should be undertaken together to fortify the Award part by part, brick by brick, until the Award is fully enforced,” Carpio said.

Friday marked the third anniversary since the Permanent Court of Arbitration in The Hague, ruling on a case brought by the Philippines, invalidated China’s claim to nearly the entire South China Sea.

Duterte, however, has shelved the ruling in exchange for Chinese economic aid and investment packages.

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