To repel or yield: Carpio vs Roque

The issues of the West and East Philippine Seas are joined, as far as China is concerned. As polls show, Filipinos distrust China because of its duplicitous ways. In Benham Rise east of Luzon, China conducted natural resource and military explorations without Manila’s consent. It rejected Manila’s reasonable condition of including Filipino scientists in its researches. After sneakily giving Chinese names to five undersea peaks it now wants to name 50 or so other features. It claims to a right to conduct marine scientific research (MSR) under international law.

In the West Philippine Sea, China has done worse. It grabbed the traditional Filipino fishing ground Scarborough Shoal 123 miles off Zambales, within the Philippines’ 200-mile exclusive economic zone but 700 miles from China’s nearest coast and beyond its own EEZ. It has concreted seven reefs and shoals in the Philippine EEZ into artificial island fortresses. It also claims reefs and rocks closer to the Philippines by imagining to be the first to name them.

Supreme Court Senior Justice Antonio Carpio leads patriotic Filipinos in disputing Beijing’s illegal claims and activities. He helped in Manila’s victorious arbitration in The Hague against China’s maritime expansionism. He also debunked through ancient maps and documents Beijing’s farcical “historical rights” to the South China (West Philippine) Sea.

Here Carpio shares his thoughts on the joined east-west issues:

“(1) No Philippine law specifically regulates MSR in our extended continental shelf (beyond the 200-mile EEZ) like Benham Rise.

“(2) 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.

“(3) MSR by foreign states in Benham Rise is purely for scientific research, and cannot be to explore the mineral resources for exploitation. 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.

“(4) UNCLOS is a ‘package deal.’ 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.

“(5) 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.

“(6) Article 246 of UNCLOS states, ‘Coastal States shall, in normal circumstances, grant their consent for marine scientific research projects by other States.’ 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.

“(7) If a bully has squatted on your front yard, 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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For 14 years Harry Roque headed the Center for International Law and taught at the University of the Philippines College of Law. That was before he became party-list congressman in 2016 and presidential spokesman in 2017. Here are some of his recent statements:

On China’s naming of undersea features in Benham Rise: “Don’t let’s magnify the issue ... China gave so many names – siopao, siomai, ampao, pechay, hototay – but all those don’t mean it is laying claim.”

On President Rodrigo Duterte’s proposed “joint exploration” with China of West Philippine Sea resources: “It’s a practical solution for Filipinos to utilize natural resources without having to deal with the contentious conflicting claims to territories... The existing jurisprudence is we can enter into joint exploration and joint exploitation with foreign entities provided that it complies with the Constitution among others, it be pursuant to a written agreement signed by the President and submitted to Congress.”

On China’s “co-ownership” of those Philippine resources: “What the President meant was that’s exactly the kind of relationship we will have in a joint exploration and exploitation.”

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Ten years ago when the Joint Marine Seismic Understanding was exposed, Roque called it “treasonous.” Malacañang had ordered the Philippine National Oil Co. to sign with China National Overseas Oil Corp. the secret joint exploration of the Palawan continental shelf and Recto (Reed) Bank within the Philippine EEZ and way beyond China’s.

Roque said:

“Clearly, an agreement to jointly survey for the existence of petroleum resources in the Spratlys would be a derogation of the country’s sovereign rights (because) the exploration here would cease to be exclusive.

“A Filipino GOCC could not redefine what is provided for by law.

“My position is that anyone who will give away Philippine territory is guilty of treason. Since the national territory is governed by the Constitution and by law, a President (Gloria Macapagal Arroyo) who will surrender the exercise of sovereign rights is guilty of treason, an impeachable offense.”

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