Carpio rebuts Duterte, offers at least 6 ways to enforce Hague ruling

Sofia Tomacruz
Stop the defeatist attitude toward China, says Justice Antonio Carpio

DEFENDERS. Supreme Court Senior Associate Justice Antonio Carpio and former foreign secretary Albert del Rosario attend the Stratbase Albert del Rosario Institute's forum on the third anniversary of the Hague ruling on the South China Sea on July 12, 2019. Photo by Jire Carreon/Rappler

MANILA, Philippines – Supreme Court (SC) Senior Associate Justice Antonio Carpio urged the administration of President Rodrigo Duterte to stop its “defeatist attitude” toward asserting the country’s rights against China in the West Philippine Sea.

Carpio said it is the government’s duty to enforce the rule of law under the United Nations Convention on the Law of the Sea (UNCLOS), won by the Philippines in its historic case against China at the Hague 3 years ago. (READ: Philippines loses to China 3 years after Hague ruling)

“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 exclusive economic zone,” Carpio said in a speech at the Ateneo Law School’s graduation rites on Sunday, July 14.

In his speech, Carpio, one of the country’s foremost experts on the West Philippine Sea, offered the government ways it can implement the Hague ruling. (READ: High tide or low tide? The question that won us the West Philippine Sea case)

Carpio was responding to Duterte’s earlier challenge to him. Duterte had dared Carpio in an interview, “Xi Jinping said there will be trouble so answer me, Justice, give me the formula and I will do it.”

“My response is yes, Mr President, 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,” Carpio said.

Carpio offered at least 6 ways the government can enforce the arbitral award.

These include the following: 

Entering into a convention with Vietnam, Malaysia, Indonesia, and Brunei regarding the South China Sea

  • The convention can declare that no geologic feature in the Spratly Islands generates an exclusive economic zone (EEZ) and that there are only territorial seas from the geologic features that are above water at high tide, as ruled by the arbitral tribunal.
  • Carpio said this will leave China “isolated” as the only country claiming EEZs from the Spratly Islands.
  • Countries that assert freedom of navigation and overflight in the South China Sea are also expected to follow such a convention, he added.

Sending the Philippine Coast Guard’s 10 new 44-meter multi-role response vessels that were donated by Japan to patrol the West Philippine Sea

  • These vessels, Carpio said, are ideal for patrolling and catching poachers in the Philippines’ EEZ in the West Philippine Sea. Doing so will also assert the country’s sovereign rights in the maritime area.

Welcoming and encouraging freedom of navigation and overflight operations (FONOPs) of naval powers like the United States, United Kingdom, France, Australia, India, Japan, and Canada in the South China Sea, including the West Philippine Sea

  • Carpio earlier described these FONOPs as the “most robust enforcement” of the arbitral award since it was won 3 years ago.

Sending the Philippine Navy to join FONOPs of foreign naval powers to assert the country’s EEZ in the West Philippine Sea

  • Carpio said this will strengthen and enforce the ruling along with naval powers both in Asia and around the world.

Inviting Vietnam, Malaysia, Indonesia, and Brunei to conduct joint FONOPs in respective EEZs facing the West Philippine Sea

  • “This will be a common assertion by 5 coastal states that each of them have their own respective EEZs in South China Sea thereby enforcing the arbitral award that China’s 9-dash line has no legal effect and cannot serve as basis to claim the waters of the South China Sea,” Carpio said.
  • By conducting joint FONOPs, it will also affirm the EEZ of the Philippines in the West Philippine Sea.
  • Carpio said that while the Philippines should welcome and join these operations, it has instead distanced the country from them, saying the Philippines “does not take sides” in disputes between China and other countries in the area.

Support private efforts to enforce the arbitral award

  • Carpio referred to the case filed by former foreign secretary Albert del Rosario and former ombudsman Conchita Carpio Morales against Chinese President Xi Jinping before the International Criminal Court. The complaint accused Xi of crimes against humanity over environmental damage in the South China Sea.

False option of war

Carpio once again refuted Duterte’s repeated claim that China might wage war on the Philippines if it enforced its rights in the West Philippine Sea. The senior SC justice said such a position was a “hollow attempt to scare our people into submission to China.”

“This position repeatedly reiterated by the present administration makes the Filipino people feel helpless and hopeless, makes our armed forces appear timid and useless, and denigrates the rule of law. This false option should be discredited once and for all,” Carpio said. 

With several options available to the Philippine government, Carpio said that whenever the threat of war is raised, Filipinos should refute the idea that this is the only option. (READ: Talk to China or go to war? ‘False option,’ Carpio says)

Carpio urged the Duterte administration to undertake the solutions offered “part by part, brick by brick, until the award is fully enforced.”

He added: “We won a great victory at the Hague by resorting to the rule of law. The arbitral award is the rule of law, but the absence of an enforcement mechanism prevents the rule of law from becoming the rule of justice.” (READ: Carpio warns Duterte vs defending China in SONA 2019)

Three years after the Philippines’ victory at the Hague, Carpio hit the Duterte administration for doing “absolutely nothing” to enforce the award.

Like Carpio, the Philippines’ lead counsel against China, Paul Reichler, said the Philippines can make China comply with the Hague ruling by joining forces with other countries.

Reichler told Rappler: “How do you get a big and powerful state to comply with its obligations especially if you are a much smaller and much less powerful state? It has to be by joining forces with other states that have similar interests in encouraging China, in pressuring China, to comply with international law and to respect their sovereign rights.” – Rappler.com

Sofia Tomacruz

Sofia Tomacruz covers foreign affairs and is the lead reporter on the coronavirus pandemic. She also writes stories on the treatment of women and children. Follow her on Twitter via @sofiatomacruz. Email her at sofia.tomacruz@rappler.com.