MANILA, Philippines – Supreme Court Senior Associate Justice Antonio Carpio warned the next Philippine president against withdrawing Manila’s historic arbitration case against China, calling the scenario a “catastrophe.”
The foremost Filipino legal expert on the South China Sea said President Benigno Aquino III’s successor may engage in bilateral talks with China but withdrawing the landmark case is another matter.
“If a new president comes in and the case is still going on, there’s nothing wrong with talking to China. What’s wrong is if the case is withdrawn. That would be catastrophic,” Carpio said in a media forum in Quezon City on Thursday, November 5.
Carpio said the challenge for presidential aspirants in the May 2016 polls is to detail their stance on China, a key issue after the Aquino administration brought the Asian superpower to court over its expansive claims in the strategic sea. The government resorted to the legal track, saying it “exhausted” negotiations and talks with China on the issue.
The Supreme Court justice echoed the position of China watchers that the next chief executive’s Beijing policy will be an election issue.
“We should first ask them their position because they have not stated it fully,” Carpio told reporters. “The question in the debates of the Commission on Elections should be whether you would withdraw the case if it’s still pending.”
There are 4 main presidential bets: independent Senator Grace Poe, former interior secretary Manuel “Mar” Roxas II of the ruling Liberal Party, opposition leader Vice President Jejomar Binay, and Senator Miriam Defensor Santiago.
The administration standard-bearer, Roxas will likely pursue Aquino’s foreign policy as he promises a continuity of programs.
Binay has been consistent in pushing for bilateral talks with China, and is even open to a joint development of resources in the contested waters. The Vice President said he will still “protect Philippine interests” in the dispute. (READ: Binay: China has money, we need capital)
Poe said she will continue the arbitration case, and conduct bilateral talks with China. The neophyte senator also said Manila should not rely on its close ally, the United States, to defend its interests.
Santiago, chairperson of the Senate foreign relations committee, has not commented on whether or not she will pursue the case. Yet the international law expert strongly questioned China’s legal basis for its 9-dash line which Beijing uses to justify claiming almost all of the South China Sea.
Nullifying the 9-dash line is the heart of the Philippine arbitration case.
Before next president assumes office
Carpio’s remarks come a week after The Hague-based arbitral tribunal issued its initial ruling on the case. The United Nations-backed tribunal at the Permanent Court of Arbitration found that it has jurisdiction or the power to decide the case in about half of the Philippines’ claims.
The case proceeds to the merits in hearings from November 24 to 30.
By Carpio’s estimate, it will take the tribunal 4 to 6 months to issue a final ruling after the case is submitted for decision. He said the ruling will likely be out by mid-2016.
“The case will be decided before the next president assumes office,” he said, in reference to the June 30, 2016 date.
Even if the case drags on and a new Philippine president is elected, Carpio said that the United Nations Convention on the Law of the Sea (UNCLOS) allows for negotiations between Manila and Beijing.
UNCLOS is known as the constitution for the seas and oceans, and is the basis for the Philippines’ arbitration case.
“Under UNCLOS, parties can come to an amicable settlement even while the case is going on. The tribunal will be happy if the parties struck an agreement. The policy under UNCLOS is there can be a voluntary agreement, a compromise before the decision is made, and that would be welcomed by the tribunal,” he said.
China prefers bilateral talks to resolve the long-running dispute. One-to-one negotiations allow the Asian giant to use its economic, political, and military clout against smaller countries like the Philippines.
The Philippines wants a multilateral solution, and eventually opted for arbitration.
Vietnam, Malaysia, Brunei, and Taiwan also have claims to the South China Sea, a strategic waterway dubbed as an artery of global trade.
Carpio was asked about an argument often raised against the Philippine strategy – why doesn’t Manila “just cooperate” with China?
The magistrate responded by comparing the situation to a bully coming into a house.
“If the bully goes to your house and says get out, and you have a title to the house, the law says it belongs to you, you’ll just tell him, ‘I’ll give you one half of the house?’”
Carpio then explained that UNCLOS grants the Philippines a 200-nautical mile exclusive economic zone (EEZ) where it can fish, and explore oil and gas.
While China even participated in the negotiations for UNCLOS, it is now claiming to be entitled to an EEZ, and the rest of the South China Sea because of “historic rights.”
Carpio said: “They cannot do that. We are saying to China: The world already agreed. There is a law. The Constitution says the entire state must preserve our EEZ. Nobody can grant it to China, 50-50 lang (only). A president who does that will be impeached.”
One of the staunchest advocates of the arbitration case, Carpio explained why the legal tack is important for countries like the Philippines. (READ: Rappler Talk: Making China follow the rule of law)
“We could not match China’s might so we filed the arbitration case in January 2013. To paraphrase Sun Tzu, it’s better to defeat the enemy in the courtroom than in the battlefield.”
He turned humorous. “Our legislature never provided our navy and army the budget to buy warplanes and ships. Our legislators told us to go to the courtroom because talk is cheap.”