Duterte Warned After Saying Arbitral Ruling ‘A Piece Of Paper To Be Thrown Away’

Retired Supreme Court senior associate justice Antonio Carpio warned on Thursday, May 6, that the Philippines is bound by President Duterte’s disregard of the country’s 2016 arbitral victory against China over the West Philippines Sea (WPS).

“That statement will be a cause for a big celebration in Beijing. They'll be jumping with joy because that's what they want to hear,” Carpio said in an interview over “Agenda” on One News.

“That's what they want to hear from the government of the Philippines,” he added.

Duterte said on Wednesday night, May 5, that the arbitral decision on the South China Sea row that favored the Philippines is just a piece of paper that can be thrown in the wastebasket, , insisting that he did what he could to pursue the ruling but to no avail.

Duterte, accused by critics of being too soft on China’s bullying, said the previous administration filed a case against China after withdrawing Philippine ships from the WPS in compliance with a US-brokered agreement with China. He was referring to the standoff in Panatag (Scarborough) Shoal, an area off Zambales that has been under China’s control since 2012.

“When the (Philippine) coast guard left, the Chinese ship did not leave... That’s the history and then they filed a case and we won. In real life, between nations, that paper is nothing,” Duterte said in a pre-recorded public address.

“Tapos sabi nila itong papel na sa kaso nanalo tayo i-pursue mo. Pinursue  ko, walang nangyari... Sa usapang bugoy, sabihin ko sa iyo ibigay mo sa ‘kin, sabihin ko sa ‘yo p***** i**, papel lang ‘yan. Itatapon ko ‘yan sa wastebasket (They said, we won the case so you have to pursue it. I pursued it but nothing happened. If we are to be irreverent about it, I would tell you, give me the paper, and I would tell you, son of a b****. It’s just a paper. I will throw it in the wastebasket),” he added.

Carpio said Duterte’s “piece of paper statement” is a “unilateral declaration” of rejection of the Philippines’ victory.

“And according to international law, that is binding on the Philippines if China accepts that. And the moment China said that, ‘We agree with President Duterte that it's just a piece of paper, should be thrown in the waste basket,’ we are bound by that,” Carpio explained.

The retired associate justice cited a doctrine in international law called the unilateral declaration.

“Because the president is the head of state, and his pronouncements are official,” Carpio said, adding “if it is accepted by the other state when a statement involves a dispute between another state, that is binding on us, that has happened several times,” Carpio said.

Carpio also found Duterte’s verbal fishing agreement with China “unconstitutional.”

To recall, Duterte disclosed in 2019 that he talked to Chinese President Xi Jinping, where he said he was allowing Chinese fishermen to fish in the Philippines’ exclusive economic zone (EEZ) after Beijing allowed Filipinos to fish in Panatag Shoal.

“That is unconstitutional because the Constitution states that the state shall preserve its maritime wealth, protect its marine wealth in the exclusive economic zone and reserve its use and enjoyment exclusively for Filipino citizens,” Carpio pointed out.

“Noong pinayagan ‘yung mga (When the) Chinese (were allowed) to fish in our exclusive economic zone, that violates the Constitution – very clear,” Carpio said.

 Disappointing

Meanwhile, University of the Philippines-College of Law associate dean and maritime expert Jay Batongbacal, criticized Duterte’s pronouncement regarding the arbitration ruling, saying it was disappointing.

“Nakakadismaya siya dahil hindi naman po totoo na papel lang siya na binabasura lang (It’s disappointing because it’s not true that it’s only a paper that can be thrown away),” Batongbacal said in an interview with News5.

“Nakakalungkot na madinig na kung sino pa ‘yung nanalo siya pa ‘yung nagpawalang bahala sa kung gaano kahalaga itong sinasabi niyang papel na ito (It’s saddening to hear that the one who won the ruling is disregarding how important this paper is),” he added.

Batongbacal said other Southeast Asian countries such as Malaysia, Indonesia and Vietnam have used the 2016 arbitration ruling to disregard China’s claims over the disputed waters.

He emphasized that such pronouncement was alarming.

“Nakakabahala po ‘yan at inaasahan ko po na medyo kakambyo ang gobyerno diyan sa issue na ‘yan (It’s alarming, and I’m expecting that the government will once clarify the issue),” he said.

In his address, Duterte claimed he had raised the maritime row before Chinese President Xi Jinping during one of his visits to China. 

“I told Xi Jinping, one day I will go to where my oil is in the West Philippine Sea,” Duterte said, but  Xi told him, “You do not do that.’”

“‘Why Mr. President? That’s ours. We are claiming it as ours,’” Duterte recalled telling Xi.  “He (Xi) said, ‘Yes, but whatever your claim is, do not touch it.’ ‘Why?’ In whispers, (he said) ‘Do not do that because there might be trouble,” Duterte recounted.

“So even if you go to the United Nations, go to America, go to wherever hell to seek help, if you bring the paper, if you are seeking trouble, can you handle it? Should I send my Navy there? For what? Send the Coast Guard there for them to die? I am not a fool. Why would I waste Filipino soldiers’ lives?” he added.

It’s China’s perspective

Presidential spokesman Harry Roque said the President was referring to the perspective of China when he made the remark.

“The context of what the President said is, ‘That is as far as China is concerned.’ Play it again. In other words, that is the reaction of China and China downplayed it but the truth is, whatever China says to downplay it, the fact that our fishermen can fish again in Scarborough, which is mentioned in the arbitral award, shows that somehow, China is complying with the arbitral award,” Roque said in a press briefing on Thursday. 

“That is the perspective of China, it’s just a paper that can be thrown in the wastebasket because it did not join the arbitration itself,” he added.

Roque said Duterte’s statements should be construed “in the proper context.”

“He (Duterte) was belaboring the point because (retired Supreme Court justice Antonio) Carpio keeps on saying he is not doing anything to enforce it. How do you enforce it when there are no mechanisms?”

Non-binding

Roque said save for a resolution creating a peacekeeping force for Congo, all other resolutions of the UN General Assembly are non-binding, “except when they restate customary norms of international law.”

Asked what the President has done to capitalize on the ruling, which also voided China’s expansive maritime claim, Roque replied: “There’s only so much that you can do because that’s what makes international law different. There is no enforcement mechanism.

“He (Duterte) doesn’t have to do anything because the award speaks for itself. The existence of the award itself is its own means of enforcement. Whatever China says to downplay it, it’s still there as evidence of the applicable customary norm of international law,” he added.

 Duterte said former foreign secretary Albert del Rosario, another vocal critic of his policy on China, should also be investigated for allegedly ordering the withdrawal of Philippine ships in the West Philippine Sea. He also questioned whether the order to withdraw ships was approved by former president Benigno Aquino III.

National tragedy

Duterte’s taking the side of China and belittling the arbitral decision is “a national tragedy,” according to Del Rosario.

“It is, therefore, a national tragedy that the President of the Philippines takes the side of China and believes that the arbitral ruling is a scrap of paper meant to be thrown in the wastebasket, to the severe prejudice of the Filipino people,” Del Rosario said in a statement.

“Why are Filipinos being blamed for the loss of Scarborough Shoal and not China and its duplicity?” he asked.

Del Rosario reiterated that it is the President’s sworn duty under the Constitution to protect the West Philippine Sea and enforce the arbitral award against China.

“With due respect, this is not a blaming game among Filipinos, but a constitutional mandate to be acted upon against a foreign aggressor for the benefit of our country and the Filipino people,” he said.

Defense Secretary Delfin Lorenzana said Duterte was “correct” in dismissing the arbitral ruling as just a piece of paper since it cannot be fully enforced.

“What President Duterte said last night regarding the PCA ruling is correct. There is no international law enforcement body that can enforce it,” Lorenzana said in a statement, referring to the Permanent Court of Arbitration in The Hague.

But he stressed the armed forces would continue to defend the nation’s sovereignty over areas being coveted by China.

“However, even without the (PCA) ruling, we will continue to defend what is rightfully ours. As I said in my previous statement, the President’s orders have been firm and straightforward: we defend what is rightfully ours without going to war and maintain the peace in the seas,” Lorenzana said.

He added that law enforcement agencies, such as the Philippine Coast Guard and the Bureau of Fisheries and Aquatic Resources, will continue sovereignty patrols in the West Philippine Sea particularly in the Kalayaan Island Group.

“Negotiate or go to war” are the only two options the Philippines has when it comes to its dispute with China on the West Philippine Sea, Senate President Vicente Sotto III said.

“Those criticizing the President, there are only two things that we can do, one is to negotiate and second is to go to war. I will ask the critics. What do you want to do?” Sotto said during an online interview with Senate reporters.

Sotto supported Duterte’s pronouncement that the victory of the Philippines over China at the PCA in The Hague is just a “piece of paper,” trash to be thrown away.

Foreign Affairs Secretary Teodoro Locsin Jr. said he is in favor of having Carpio and Del Rosario investigated for the withdrawal of the Navy ship from Panatag Shoal in 2012.

“First I demand a complete verifiable factual explanation of why they withdrew our fighting ship from the face-off with Chinese warship(s) — or just fishing vessels — from Scarborough. All it takes is a shot across the bow to have settled that dispute in the time-honored fashion,” Locsin tweeted.

He said Carpio and Del Rosario should “tell us exactly what happened to make our proud nation withdraw our fighting ship(s) facing off with China without a fight.” – With Pia Lee-Brago, Romina Cabrera, Cecille Suerte Felipe