Last recourse for PH vs China’s maritime claim

MANILA, Philippines – Supreme Court Associate Justice Antonio Carpio said that despite any decision made in the future by the United Nations Convention on the Law of the Sea (UNCLOS) on maritime entitlements at the South China Sea (West Philippine Sea), the Philippines would likely “appeal to world opinion” as its only remaining recourse against China.

In a commencement speech at the Pamatasan ng Lungsod ng Maynila on Saturday, May 18, Carpio explained that if UNCLOS decides against the Philippines, there’s no question that China would immediately enforce such a decision. But if the decision will be adverse to China, the Chinese government will most likely use its naval might and its permanent membership in the UN Security Council to enforce its claim over the West Philippine Sea.

“The Philippines does not have the naval might to compel China to comply with any decision of the arbitral tribunal,” Carpio said.

Should UNCLOS decide in favor for the Philippines and China would not honor it, the Philippines could ask the Security Council to enforce the decision rendered by the International Court of Justice (ICJ), according to Carpio. UNCLOS does not provide for any enforcement mechanism for decisions of the International Tribunal on the Law of the Sea (ITLOS) or the arbitral tribunals created under UNCLOS.

However, Carpio explained that in this case, the Security Council can only act if none of its 5 permanent members will oppose the implementation of the ICJ decision, as each of the 5 permanent members wields veto powers. China is a permanent member of the Security Council and will naturally veto any enforcement measure against itself, Carpio added.

Carpio added that resorting to “world opinion” is a defining force in enforcing arbitral decisions that fall into the legal black hole due to the absence of effective international enforcement mechanisms.

“With a favorable decision from the arbitral tribunal, and world opinion also in our favor, time will be on the side of the Philippines,” Carpio said.

China’s 9-dash line

The 9-Dash or U-Shaped line is used by China and Taiwan to claim a vast area of the West Philippine Sea (South China Sea) including the Paracel Islands — occupied by China but claimed by Vietnam — and the Spratly Islands, also disputed by Brunei, the Philippines, Malaysia and Vietnam apart from Taiwan.

The Department of Foreign Affairs (DFA) stressed that “the Philippines does not accept the validity of the 9-Dash line, that amounts to an excessive declaration of maritime space in violation of international law.“

Carpio echoed the DFA and claimed that China’s 9-dash line is a “gross violation of UNCLOS” as it claims to almost the entire South China Sea. He added that China’s claim takes away the maritime entitlements of the Philippines, Vietnam, Malaysia, Brunei and even Indonesia to exclusive economic zones and extended continental shelves in the South China Sea.

“In case of the Philippines, China’s 9-dash claim deprives 80% of the Philippines’ exclusive economic zone, and 100% of its extended continental shelf, in the West Philippine Sea,” Carpio explained.

Carpio added that scholars of the law of the sea all over the world consider China’s 9-dash line claim as without basis in international law. China’s 9-dash line claim, if left to stand, will destroy and abrogate UNCLOS, the Constitution for the oceans and seas of our planet, he said.

“Today, there is no graver danger to the future existence and survival of UNCLOS than China’s 9-dash line claim to almost the entire South China Sea,” Carpio said. 

‘Wise decision’

Carpio said it was wise for the Philippine to choose an arbitral tribunal under the UNCLOS to resolve maritime dispute with China as international law levels the playing field when large nations threaten small nations.

On January 22, the Philippines decided to elevate the territorial dispute over the West Philippine Sea to Annex VII arbitration under the UNCLOS as the standoff between the Philippine Navy and Chinese fishing vessels that entered Scarborough Shoal continues. 

The government wants the tribunal to declare China’s 9-Dash claim as “invalid” and “unlawful.” But China formally rejected the arbitral proceedings initiated by the Philippines reiterating its position that “it has indisputable sovereignty over the entire South China Sea encompassed by its 9-dash line claim.”

On April 25, a five-man arbitral panel under Annex VII of UNCLOS was formed to hear the application for arbitration by the Philippines.

Carpio said the arbitration case of the Philippines against China is not about territorial sovereignty but on whether China’s 9-dash claim can take away the Philippines’ exclusive economic zone and extended continental shelf in the West Philippine Sea.

“We are, moreover, asking the tribunal to rule whether China, under its 9-dash line claim or domestic laws, can unilaterally appropriate for itself maritime space in the South China Sea beyond the exclusive economic zone of any coastal state,” Carpio said.

Recently, DFA disclosed that the European Union (EU) reiterated its support “for the peaceful settlement of disputes in the South China Sea according to international law, including the UNCLOS.” – Rappler.com