Carpio Reiterates Ways To Enforce The 2016 Arbitral Ruling On WPS; Presence Important – Mercado

Retired Supreme Court senior associate justice Antonio Carpio has reiterated  the various ways to enforce the 2016 arbitral ruling that upheld the country’s exclusive economic zone (EEZ) in the South China Sea and nullified China’s expansive claim over the area. 

Carpio told ‘The Chiefs” on One News / TV5 on Thursday night, May 6,  that he had discussed many times or even a “thousand times,” in so many places, the formulas to enforce the ruling without going to war.

“Kasi ang utak pulbura, sasabihin lang, giyera,” Carpio said, noting that in the first place, the Constitution prohibits war as instrument of national policy.

He also pointed out the United Nations Charter denounces war as a means to settle disputes.

Carpio discussed some of the formulas to enforce the arbitral ruling over the West Philippine Sea or WPS after President Duterte described it as a piece of paper that can be thrown into the wastebasket last week.

Read more: Duterte Challenges Carpio To A Debate

Carpio Accepts Duterte’s Challenge To Debate, Asks Him To Resign

In his speech before graduating students of the Ateneo de Manila University School of Law on July 14, 2019, Carpio already enumerated the formulas after Duterte asked him on June 24, 2019, quoting a report by The Philippine STAR on that day: Chinese President “Xi Jinping (said) there will be trouble. So answer me, Justice, give me the formula and I’ll do it.”

In response, Carpio said 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. Here are the options:

First, enter into a sea boundary agreement or convention with Vietnam, Malaysia, Indonesia, and Brunei.

According to Carpio, a convention aligned with the ruling of the arbitral ruling can declare that no geologic feature in the Spratly Islands generates an exclusive economic zone (EEZ). The maritime features cover the area of the South China Sea where Malaysia, Vietnam, Indonesia, Brunei, the Philippines, and China are claimants. If the convention pushes through, Carpio said China will be the only state claiming EEZs generated by the Spratlys, leaving them “isolated.”

The United States, the United Kingodom, France, Japan, Australia, India and Canada, countries that regularly assert freedom of navigation and overflight in the South China Sea, can be expected to adhere to this convention, he said.

Second, file an extended continental shelf claim in the WPS beyond the 200-nautical mile EEZ off the coast of Luzon, where China is the only opposite coastal state.

Carpio explained the Philippines can file this unilaterally with the UN Commission on the Limits of the Continental Shelf. He said China cannot invoke historic rights under its nine-dash- line which has already been ruled without legal effect by the arbitral tribunal.

It is most likely that the UN Commission will affirm the extended continental shelf of the Philippines, in the same way it affirmed the extended continental shelf of the country in Benham Rise, he added.

Third, send on patrol its 10 new 44-meter multi-role response vessels that were donated by Japan for use by the Philippine Coast Guard. These vessels are ideal to patrol the EEZ in the WPS to drive away poachers from other countries.

Fourth, welcome and encourage the freedom of navigation and overflight operations (FONOPs) of the US, UK, France, Australia, Japan, India and Canada in the South China Sea, including the WPS.

Fifth, send its own Navy to join the FONOPs of these foreign naval powers to assert, on behalf of the Philippines, that there is an EEZ in the WPS belonging to the Philippines as ruled by the arbitral tribunal.

Sixth, invite Vietnam, Malaysia, Indonesia and Brunei to conduct joint freedom of navigation operations in their respective EEZs facing the South China Sea. This will be a common assertion, by five coastal states, that each of them have their own respective EEZs in the South China Sea, thereby enforcing the arbitral award that China’s nine-dash-line has no legal effect and cannot serve as basis to claim any of the waters of the South China Sea.

Seventh, support private sector initiatives to enforce the arbitral award.

“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 (EEZ). We must use our creativity and resourcefulness to defend and protect, through the rule of law, what belongs to the Filipino people – the present generation of Filipinos and the generations of Filipinos still to come,” Carpio said in his speech.

‘Establish permanent presence’

For former defense secretary Orlando Mercado, the Philippines’ historic victory is never just a “piece of paper,” but needs the enforcement of the government.

In an interview with “Sa Totoo Lang” on One PH on Thursday, Mercado, who is also a former senator, admitted that the arbitral ruling is hard to implement “but the world is ever-changing.”

“To be honest, that victory is very important because we have legal basis, that’s part of international law,” Mercado underscored.

He emphasized that the Philippines will always be the winner in this case “whether it is implemented or not.”

But “what is happening there is that we have no presence,” Mercado said.

“We’re not consistent. We don’t have the capability because our Coast Guard and Navy (are) not enough. What’s important now is that we have to talk to other countries who will benefit from this for their aerial denial capabilities, “ he added in English and Filipino.

“It’s about who stays the longest. What China sees here is that if they stay, they win. They are the ones who have presence. We gave up. If we give up, our marine resources will be lost, as well as our (EEZ) and it has been proven to be ours. It’s as if you bought land but someone stole it from you.”

“Kung talagang pinabayaan mo, walang mangyayari. Talagang papel lang ‘yun titulo mo. (If you really give up, then nothing will happen. The title will really just be a piece of paper.) You can make that piece of paper alive by having that particular presence,” he further said.