Philippines and Vietnam Have Legal Claims in the South China Sea; China Does Not — Philippine Supreme Court Senior Justice Has a Way To Follow The Law

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War never is an option. Diplomacy can fortify the UN ruling on Manila’s row with Beijing. Supreme Court Senior Justice Antonio T. Carpio enumerates some diplomatic initiatives, in a presentation to the Stratbase-Albert del Rosario Institute. Third of four parts:

There is no world policeman or sheriff to enforce the arbitral ruling. However, states that ratified the United Nations Convention on the Law of the Sea expressly bound themselves to comply in good faith with decisions of arbitral tribunals created under UNCLOS. China is reneging on this treaty obligation.

The option for the Philippines is not “talk or go to war with China.” This is a false option, and shows a dismal lack of understanding of international law and relations.

First, the Philippine Constitution prohibits war as instrument of national policy. Second, the UN Charter has outlawed war as a means of settling disputes between states. In resolving the SCS dispute, war is not and has never been an option. That is precisely why the Philippines filed the arbitration case against China.

If the Philippines starts a war against China, it would surely lose, and lose badly. If the Philippines is the aggressor, that will violate the Constitution and the UN Charter. The Philippines cannot invoke the Philippine-US Mutual Defense Treaty because the treaty is only for defense, not for aggression. President Duterte’s oft-repeated question – whether the US will support and join the Philippines if we go to war against China – is a misguided question because the US is not bound by the Philippine-US Mutual Defense Treaty to support any act of aggression by the Philippines. If the US joins the Philippines in a war of aggression, the US will also be in breach of the UN Charter.

China itself does not want to start a war because war will give the US an excuse to intervene in the SCS dispute, since to defend itself the Philippines will certainly invoke the Philippine-US Mutual Defense Treaty. China’s strategy is to control the SCS without firing a shot. Those who raise the issue of war with China either do not understand the Three Warfares Strategy of China, or are scaring the Filipino people to submit to China’s designs in the SCS.

The real and practical option for the Philippines is to “talk with China while taking measures to fortify the arbitral ruling.” We should talk with China on the COC, on the Code for Unplanned Encounters at Sea (CUES) for naval and coast guard vessels, on conservation of fish stocks, on preservation of maritime environment, and on how our fishermen can fish in Scarborough Shoal. There are many other things to talk with China on the SCS dispute even if China refuses to discuss the arbitral ruling.

As we talk with China, we can fortify the ruling in many ways:

(1) The Philippines can enter into a sea boundary agreement with Vietnam on our overlapping Extended Continental Shelves in the Spratlys, based on the ruling of the tribunal that no geologic feature in the Spratlys generates an EEZ. Such an agreement implements part of the arbitral ruling by state practice.

(2) The Philippines can enter into a sea boundary agreement with Malaysia on our overlapping EEZ and ECS in the Spratlys, again based on the ruling that no geologic feature in the Spratlys generates an EEZ. Such agreement also implements part of the ruling by state practice.

(3) The Philippines can file an ECS claim beyond our 200 NM EEZ in the West Philippine Sea off the coast of Luzon. If China does not oppose, the United Nations Commission on the Limits of the Continental Shelf (UNCLCS) will award the ECS to the Philippines, similar to our ECS claim in Benham Rise where there was no opposition. If China opposes our ECS claim, it will have a dilemma on what ground to invoke. If China invokes the nine-dashed lines again, the UNCLCS will reject the opposition because the UNCLCS is bound by the ruling of the arbitral tribunal which, like the UNCLCS, was created under UNCLOS. If China claims an overlapping ECS, then China will be admitting that the Philippines has a 200 NM EEZ from Luzon that negates the nine-dashed lines.

(4) The arbitral tribunal has ruled that no geologic feature in the Spratlys generates an EEZ. The Philippines can initiate an agreement among all ASEAN disputant states – Vietnam, Malaysia, Brunei, Indonesia and Philippines – declaring that no geologic feature in the Spratlys generate an EEZ that could overlap with their respective EEZs. Even if only the Philippines, Vietnam, and Malaysia will agree to this declaration, it will clearly remove any maritime delimitation dispute among them, leaving only the territorial disputes. This will isolate China as the only state claiming an EEZ from geologic features in the Spratlys.

(5) The Philippines can claim damages before an UNCLOS tribunal for the “severe, permanent harm” to the marine environment, as ruled by the arbitral tribunal, that China caused within Philippine EEZ in the Spratlys because of China’s dredging and its failure to stop Chinese fishermen from harvesting endangered species.

(6) In case China shows signs of reclaiming Scarborough Shoal, the Philippines can file a new case before an UNCLOS arbitral tribunal to stop the reclamation because any reclamation in Scarborough Shoal will destroy the traditional fishing ground common to fishermen from the Philippines, Vietnam and China as ruled by the tribunal.

The ruling involves only maritime, not territorial issues. Enforcing it does not mean forcibly evicting China from the islands and high-tide elevations it occupies in the SCS, as occupation of these geologic features is a territorial issue. There are still many commentators in media who fail to distinguish between territorial and maritime disputes, and thus wrongly conclude that enforcing the ruling means going to war with China on the territorial dispute. (More on Monday)

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http://www.philstar.com/opinion/2017/08/04/1724629/enforce-un-ruling-carpio-lists-ways

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China says it has sovereignty over all the South China Sea north of its “nine dash line.” On July 12, 2016, the Permanent Court of Arbitration in The Hague said this claim by China was not valid. But China chose to ignore international law.

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