Carpio suggests 'formula' for enforcing arbitral award without going to war

Carpio suggests 'formula' for enforcing arbitral award without going to war
In this July 12, 2019 photo, Senior Associate Justice Antonio Carpio speaks at a forum on the third anniversary of the Philippines' arbitral victory on the South China Sea.
Philstar.com, file

MANILA, Philippines — Responding to the challenge of President Rodrigo Duterte, Supreme Court Senior Associate Justice Antonio Carpio enumerated ways to enforce the Philippines' arbitral victory without going to war.

The president has been consistent on his position that the country will not go to war with China over the West Philippine Sea row.

"Xi Jinping (said) there will be trouble. So answer me, justice, give me the formula and I'll do it," Duterte earlier said, referring to Carpio.

Speaking at the graduation ceremony of Ateneo Law School onSunday, Carpio shared ways on to enforce the arbitral ruling without going to war with China and using only the rule of law.

Agreements with other claimant states

Carpio's first two suggestions were entering into sea boundary agreements with Vietnam and Malaysia.

Manila can enter into an agreement with Hanoi on overlapping extended continental shelves beyond the Spratlys Islands and with Kuala Lumpur on the adjoining exclusive economic zones (EEZs) between Borneo and Palawan.

The senior magistrate noted Vietnam had already proposed a sea boundary agreement but the Duterte administration has not acted on it due to fear of offending China.

The Philippines, along with Vietnam, Malaysia, Indonesia and Brunei, can also enter into a convention that no geologic feature in the Spratlys generate an EEZ, leaving China the lone claimant claiming EEZ over the area.

"This convention can be open to accession by all coastal states of the world so that their right to freedom of navigation and overflight in the Spratlys can be governed by this convention," Carpio said.

Extended Continental Shelf claim

According to Carpio, the Philippines can file an extended continental sheld claim in the West Philippine Sea beyond the 200-nautical mile EEZ off the coast of Luzon before the UN Commission on the Limits of the Continental Shelf.

China is the only opposite coastal state in that area but it cannot invoke historic rights as it had already been ruled out by the arbitral tribunal.

The UN commission will likely grant the extended continental shelf claim of the Philippines, similar with the case of Benham or Philippine Rise.

"This will fortify and enforce, in accordance with the rule of law, the ruling in the arbitral award that in the West Philippine Sea the Philippines has a full 22-nautical mile EEZ, from the outher limits of which the 150-nautical mile extended continental shelf of the Philippines is measured," Carpio said.

Send Coast Guard vessels to EEZ

The Philippines should send the coast guard's new multi-role response vessels to patrol the country's EEZ in the West Philippine Sea, 

The 10 vessels donated by Japan could also be used to drive away poachers from other countries.

This move will also assert the country's soverieng rights over Philippine EEZ in accordance with the UN Convention on the Law of the Sea.

Encourage, welcome FONOPs with other countries

Aside from welcoming freedom of navigation and overflight operations (FONOPs) of other countries in the South China Sea, the Philippines could send its own navy to join these operations.

The United States, the United Kingdom, France, Australia, Japan, India and Canada have been conducting naval and aerial operations in the South China Sea, including the West Philippine Sea.

Sending the Philippine Navy to join naval powers' FONOPs in the disputed waterway would also enforce the arbitral award.

The Philippines could also conduct joint FONOPs with Southeast Asian neighbors such as Vietnam, Malaysia, Indonesia and Brunei on their respective EEZs facing the South China Sea, Carpio added.

"All these naval and aerial operations, whether conducted by the naval powers or by the ASEAN coastal states, uphold that there are high seas in the South China Sea, and around these high seas are the exclusive economic zones of the adjacent coastal states," Carpio said.

The justice noted that the Duterte administration has been decrying the lack of enforcement mechanism of the UNCLOS but refuses to join naval powers that enforce the ruling.

Support private sector in enforcing arbitral award

Carpio's last suggestion was for the Philippine government to support private individuals enforcing the landmark ruling.

Earlier this year, former Foreign Affairs Secretary Albert del Rosario, former Ombudsman Conchita Carpio Morales and their counsel Anne Marie Corominas submitted a communication before the International Criminal Court (ICC).

The three of them accused Chinese President Xi Jinping and other Chinese officials of crimes against humanity for the massive destruction of the marine environment in the West Philippine Sea.

The Philippines had withdrawn from the Rome Statute that established the ICC but the complaint was filed before the withdrawal took effect.

If the ICC decides that it has jurisdiction over the case, "this will fortify and enforce the arbitral award," Carpio said.

Having said these measures, Carpio reiterated that the threat of going to war was meant to scare Filipinos into submitting 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.

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