[OPINION] Law and justice in the West Philippine Sea

The following is former Supreme Court justice Antonio Carpio's speech at the conferment of his honorary doctoral degree from the University of the Philippines on December 10, 2020.

One of the greatest challenges facing the country today is how to defend and preserve our sovereign rights in our Exclusive Economic Zone (EEZ) in the West Philippine Sea (WPS). What is at stake is a maritime area larger than the total land area of the Philippines, and this huge maritime area is rich in fish, oil, gas, and other natural resources. 

I remember in early 1995 when China seized from the Philippines Mischief Reef, a submerged atoll within the EEZ of the Philippines in the WPS. I was then the Chief Presidential Legal Counsel of President Fidel Ramos. The Philippines was totally defenseless. We did not have the military capability to take back Mischief Reef. We could not invoke the PH-US Mutual Defense Treaty because Mischief Reef is outside the territory of the Philippines. We could not go to a tribunal under the United Nations Convention on the Law of the Sea or UNCLOS because China had not yet ratified UNCLOS at that time. This incident left a deep scar in my mind – that a powerful state could just grab what legally belonged to a weaker state, and there was no power on earth that could right such a wrong. 

China had demonstrated to the world that might makes right. Ominously, China was claiming not only Mischief Reef, but 80% of our EEZ in the WPS.   It was obvious that Mischief Reef was neither the first nor the last geologic feature that China would seize from the Philippines. 

On August 16, 2011, I penned the unanimous decision in Magallona v. Executive Secretary, upholding the amendment to our archipelagic baselines to conform to UNCLOS. This case opened my eyes – that we could defend and preserve our sovereign rights in the WPS through the Rule of Law by questioning before an UNCLOS tribunal the validity of China’s historic claim under its nine-dash line. We had, however, to first put our house in order by bringing our archipelagic baselines into conformity with UNCLOS so that we could go to an UNCLOS tribunal with clean hands.  

The petitioners in Magallona wanted the Supreme Court to declare the waters enclosed by the Treaty of Paris lines as Philippine territorial sea in violation of UNCLOS. As I stressed in my ponencia in Magallona, the absence of UNCLOS-compliant archipelagic baselines “weakens the country’s case in any international dispute over Philippine maritime space.” True enough, one of the judges in the arbitral tribunal at The Hague asked why the Philippines was questioning China’s historic nine-dash line when the Philippines itself had its own historic Treaty of Paris lines. We submitted to the tribunal the Magallona decision to prove that the Philippines had abandoned the Treaty of Paris lines and were already totally compliant with UNCLOS, showing that we had come to the tribunal with clean hands.  Coming to any court or tribunal with unclean hands means getting your case dismissed outright. 

On October 29, 2011, barely two months after the Magallona decision, I launched my advocacy to bring China’s nine-dash line before an UNCLOS tribunal. In my address at the 50th Anniversary of the College of Law at the Ateneo de Davao University, I stated: 

“If China’s 9-dash line is questioned before an UNCLOS tribunal, there is no doubt that it would be declared as having no basis in international law. China’s 9-dash line simply cannot co-exist with UNCLOS. Upholding one means killing the other. The challenge then, for the Philippines as well as for other states trampled upon by China’s 9-dash line, is how to bring the validity of China’s 9-dash line to an UNCLOS tribunal, given that China has opted out in 2006 from the compulsory dispute settlement mechanism of UNCLOS.”  

Fortunately, our own academics and graduates of the University of the Philippines helped find a way out of this jurisdictional dilemma. I had what I called the UNCLOS group, composed of Dr Jay Batongbacal, Dr Diane Desierto, the late Dr Aileen Baviera, Atty Lani Somera, Atty John Molo, Atty Elma Leogardo, and whenever they happened to be in Manila, Dr Suzette Suarez and Dr Lowell Bautista. We met periodically at a Chinese restaurant to find a way to question China’s nine-dash line before an UNCLOS tribunal despite China’s opting out of compulsory arbitration.  The discussions of this UNCLOS group gave me a very clear idea on the way forward. 

I submitted to then Foreign Affairs Secretary Albert del Rosario a Memorandum outlining how the Philippines could initiate an arbitration to question China’s nine-dash line before an UNCLOS tribunal. Secretary del Rosario was very receptive, and he followed my advice to secure the opinion of known international legal experts in the US and Europe on the Law of the Sea to determine the feasibility of questioning China’s nine-dash line before an UNCLOS tribunal. The response from the international legal experts was positive. 

Very soon thereafter, China seized Scarborough Shoal from the Philippines following the April-June 2012 standoff between Philippine and Chinese vessels. In December 2012, when President Benigno Aquino III realized that China would remain permanently in Scarborough Shoal, he instructed Secretary del Rosario to file the arbitration case against China. With the preliminary work already mostly done earlier, the Philippines filed the following month, on January 22, 2013, its Statement of Claim against China pursuant to UNCLOS.   

The Philippines did not have the military capability to take back Scarborough Shoal in any kind of armed conflict with China. So the Philippines brought China to a forum where there was a level playing field, where the dispute would be resolved based solely on the law and the facts, regardless of how many warships, warplanes, missiles, or nuclear bombs  China possessed. We neutralized China’s military might when we brought the dispute before an UNCLOS tribunal. Might was no longer right. 

Secretary Albert del Rosario requested me to explain to foreign policy makers, university academics, and think tanks in Europe, North America, and Asia why the Philippines filed the arbitration case against China and why the Philippines was on the right side of the law, the facts, and history.  And so in 2015 I embarked on a world lecture tour to explain the South China Sea dispute from the Philippine perspective. 

To most people, especially those in the West, China’s claim to ownership of the South China Sea since 2,000 years ago seemed plausible because China has an ancient civilization. We had to correct this glaringly erroneous perception. The battle to defend our sovereign rights in the WPS is also a battle for the hearts and minds of the peoples of the world, for in the end we need world opinion on our side to enforce any favorable arbitral ruling against a nuclear-armed China.   

The July 12, 2016 Arbitral Award that invalidated China’s nine-dash line has affirmed with finality that the Philippines has a full EEZ in the WPS. And yes, the arbitral tribunal expressly declared that Mischief Reef is part of Philippine EEZ. So if China is still in Mischief Reef, it is there illegally as a squatter. Sea level rise by the end of this century and beyond will submerge all the naturally-formed islands of China in the WPS. Once submerged, they will form part of Philippine EEZ if within 200 nautical miles from our archipelagic baselines. 

In short, an UNCLOS arbitral tribunal has decided with finality the maritime dispute between the Philippines and China in the WPS. Nature, however, will decide with finality the territorial dispute between the Philippines and China in the WPS. Time is definitely on the side of the Philippines. 

Whenever ships of foreign naval powers sail in the WPS to conduct freedom of navigation and overflight operations, including naval drills, they enforce the arbitral ruling because their naval operations can take place only if there is an EEZ in the WPS. In the WPS, only the Philippines can claim an EEZ because the Philippines is the sole adjacent coastal state in the WPS.   These freedom of navigation and overflight operations of foreign naval powers, including naval drills, conducted regularly in accordance with international law and UNCLOS, are the most tangible and effective enforcement of the arbitral ruling. 

Let me thank again the international team of foreign lawyers who brilliantly represented the Philippines before the arbitral tribunal and who won for the Philippines a truly landmark victory. We owe them a debt of gratitude. 

I have on many occasions explained the many legal, peaceful, and non-confrontational ways of enforcing the arbitral ruling. These are actions that the Philippines can take anytime, even in the administrations that will succeed the Duterte administration.   

Recently, we have seen some light at the end of the tunnel. The Philippines and China signed last November 27, 2018 the Memorandum of Agreement or MOU to cooperate in exploiting oil and gas in the WPS under the Service Contract system of the Philippines. In August of 2019 the Philippines and China signed the Terms of Reference or TOR to implement the MOU.  

A final meeting was supposed to have been held in Manila between Philippine and Chinese officials last March 2020 to vet the partnership agreement that should have been forged by that time between China National Offshore Oil Company and Forum Energy. Forum Energy holds Service Contract 72 awarded by the Philippine government with an area covering Reed Bank, which has gas reserves much greater than Malampaya.  However, the pandemic prevented the holding of the meeting in Manila and a new date for a meeting has yet to be announced.  

In the meantime, President Duterte has lifted the moratorium on exploration activities in the WPS, a moratorium that the Philippine government imposed in 2014 after Chinese coast guard vessels harassed Philippine-commissioned survey ships operating in the WPS. This time, the Chinese government announced that it will not stop the exploration activities of Philippine survey ships in the WPS because a “consensus” has been reached between China and the Philippines, referring to the MOU and TOR. 

Under the Service Contract system of the Philippines, the service contractor will receive 40% of the net proceeds in payment for the capital, services, and technology that it will provide in extracting the oil or gas, while the Philippine government will receive 60% of the net proceeds as owner of the oil or gas. This is the same sharing formula between the Philippine government and Shell, which operates the Malampaya gas field in the WPS.  This is a win-win formula that China can offer to Vietnam, Malaysia, Brunei, and Indonesia. I understand that the Vietnamese find this formula acceptable.

The first whereas clause of every Service Contract awarded by the Philippine government states that the Philippines owns the oil and gas.  Another provision of every Service Contract provides that Philippine law governs the contract. To me, these provisions are sufficient to preserve our sovereign rights in the WPS, considering that the Chinese state-owned company will be assuming the rights and obligations of the service contractor under the Service Contract system of the Philippines. As long as the structure in the MOU and TOR is not changed, I can vouch to the Filipino people that Philippine sovereign rights in the WPS are preserved. 

One of the greatest achievements of former President Benigno Aquino III was the filing of the arbitration case against China which legally secured our EEZ in the WPS. If the  MOU and TOR arrangement with China pushes through, one of the greatest achievements of President Rodrigo Duterte will be the enforcement of the arbitral ruling, and its application to the wider South China Sea dispute, bringing much needed peace and stability to our region.  

Of course, we must have our feet firmly planted on the ground and understand that China may still walk back from its commitment under the MOU and TOR. That is why we must address the serious weakness in UNCLOS – and that weakness is the absence of a mechanism to enforce decisions of arbitral tribunals under UNCLOS. There is no world policeman who can enforce arbitral rulings of UNCLOS tribunals. Each state party to UNCLOS is treaty bound to comply in good faith with decisions of arbitral tribunals organized under UNCLOS.  However, a losing state party can go rogue and there is no enforcement mechanism to stop a losing party from going rogue.

As lifelong students of the law, we must find ways to bridge this gap between a final arbitral ruling and its enforcement, between law and justice. The arbitral ruling is the law between the parties, but unless enforced, there is no justice. As every lawyer worth his attaché case knows, enforcement or execution of the judgment or award  is “the fruit and end of the suit and the life of the law.” 

Under the World Trade Organization (WTO), the winning party can impose additional tariffs on the exports of the losing party, thus instituting a built-in mechanism to enforce decisions of arbitral panels under the WTO. In the next round of negotiations to update UNCLOS, the Philippines can propose a similar built-in enforcement mechanism: the privileges of the losing state under UNCLOS will automatically be suspended for failure to comply with an arbitral ruling within a given period. Thus, the losing state can have its deep-sea mining permits suspended, its voting rights suspended, and its representation in UNCLOS committees, including the International Tribunal for the Law of the Sea, suspended until it complies with the arbitral ruling.  

This gives substance to the recognized principle that UNCLOS is a “package deal” – a ratifying state must accept UNCLOS in its entirety and cannot cherrypick the provisions it wants to accept and the provisions it wants to reject. As lifelong students of the law, we must always strive to improve our legal systems, learning lessons from disquieting experiences that ultimately drive the progressive development of the law. In the process, we bridge the gap between law and justice, which is the task of every lawyer who has learned law in the grand manner, as envisioned by Dean George Malcolm, the first Dean of the UP College of Law.   

Let me end this address by quoting what has become our battle cry in this epic struggle to defend our sovereign rights in the WPS. This is what I stated 10 years ago on the night I started my advocacy to defend and preserve our EEZ in the WPS. 

“This battle to defend our EEZ from China, the superpower in our region, is the 21st century equivalent of the battles that our forebears waged against Western and Eastern colonizers from the 16th to the 20th century. The best and the brightest of our forebears fought the Western and Eastern colonizers, and even sacrificed their lives, to make the Philippines free. 

In this modern day battle, the best and the brightest legal warriors in our country today must stand up and fight to free the EEZ of the Philippines from foreign encroachment. In this historic battle to secure our EEZ, we must rely on the most powerful weapon invented by man in the settlement of disputes among states – a weapon that can immobilize armies, neutralize aircraft carriers, render irrelevant nuclear bombs, and level the battlefield between small nations and superpowers. 

That weapon – the great equalizer – is the Rule of Law. Under the Rule of Law, right prevails over might.” – Rappler.com

Antonio T. Carpio is a retired Supreme Court senior associate justice.