Carpio to Duterte: There are many ways to enforce arbitral ruling other than war

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Senior Associate Justice Antonio Carpio on Sunday countered President Rodrigo Duterte’s belief that armed conflict is the only way to implement the 2016 international tribunal ruling granting the Philippines’ rights over areas within its exclusive economic zone. (FILE PHOTO)

Metro Manila (CNN Philippines, July 15) — Senior Associate Justice Antonio Carpio on Sunday countered President Rodrigo Duterte’s belief that armed conflict is the only way to implement the 2016 international tribunal ruling granting the Philippines’ rights over areas within its exclusive economic zone.

In a speech before graduating students of the Ateneo de Manila University Law School, Carpio said the government should not just “sit idly by” and let China seize territories within the Philippine EEZ.

“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.

This was in response to Duterte’s dare to Carpio to respond to Chinese President Xi Jinping’s threat of “trouble.”

Ngayon sabi ko, turuan ninyo ako paano na sinagot na ako ni Xi Jinping noon, “There will be trouble.” Kaya sagutin mo muna ako Justice, give me the formula at gagawin ko."

[Translation: I said, teach me how since Xi Jinping said, “There will be trouble.” Answer me first, Justice, give me the formula and I will do it.]

He also called out the false notion of waging war against Beijing for Manila to enforce the ruling — which was based on provisions under the United Nations Convention on the Law of the Sea. Both countries are signatories to this convention.

“The Filipino people should not be intimidated by national leaders who peddle a false option that either we go to war with China or submit to China. This false option should be discredited once and for all. This false option does not deserve any further space or airing in the nation’s political discourse,” he said.

Carpio enumerated several ways in which the country can enforce the arbitral award:

1. Enter into a sea boundary agreement or convention with Vietnam, Malaysia, Indonesia, and Brunei.

Carpio said that a convention aligned with the ruling of the arbitral ruling can declare that no geologic feature in the Spratly Islands generates an EEZ. The maritime features cover the area of the South China Sea where Malaysia, Vietnam, Indonesia, Brunei, the Philippines, and China are claimants. If the convention pushes through, Carpio said China will be the only state claiming EEZs generated by the Spratlys, leaving them “isolated.”

2. File an extended continental shelf claim in the West Philippine Sea beyond the EEZ off the coast of Luzon, where China is the opposite coastal state.

The ruling already invalidated China’s nine-dash line claim. Carpio said China’s own extended continental shelf does not overlap that of the Philippines. The SC magistrate said Manila may file this request before the United Nations Commission on the Limits of the Continental Shelf.

“It is most likely that the UN Commission will affirm the extended continental shelf of the Philippines, in the same way it affirmed the extended continental shelf of the Philippines in Benham Rise,” he said.

Carpio explained the new outer limits of the 150-nautical mile extended continental shelf will be the new benchmark of the Philippine EEZ.

3. Deploy 10 new response vessels donated by Japan for the Philippine Coast Guard’s use.

Carpio said the new multi-role vessels will help drive away poachers from other countries.

4. Welcome the Freedom of Navigation and Overflight Operations (FONOPs) of the United States, United Kingdom, France, Australia, Japan, India, and Canada in the South China Sea.

“The naval and aerial operations of these naval powers, which are in conformity with UNCLOS and customary international law, have increased in frequency since the 2016 arbitral award, and are the most robust enforcements of the arbitral award, bridging the gap between the rule of law and the rule of justice,” Carpio said.

5. Send its own Navy to join the FONOPs.

Duterte had been adamant in not sending of Navy ships to disputed areas in the West Philippine Sea. However, Carpio said asking the Philippine Navy to join will assert the Philippine EEZ as it belongs to the Philippines under the arbitral tribunal.

6. Invite claimant countries such as Vietnam, Malaysia, Indonesia, and Brunei to conduct joint FONOPs in the South China Sea.

Carpio said the common assertion through the naval and aerial operations of coastal states within their respective EEZs will enforce the award. But he lamented at how the Philippines seemingly avoids the joint activities.

“The naval and aerial operations of these naval powers, which are in conformity with UNCLOS and customary international law, have increased in frequency since the 2016 arbitral Award, and are the most robust enforcement of the arbitral Award, bridging the gap between the rule of law and the rule of justice,” he said.

7. Support private efforts to enforce the ruling.

Carpio then cited the complaint filed in March against Xi and other officials of Beijing regarding the “crimes against humanity” in the West Philippine Sea.

The communication before the International Criminal Court was filed by former Foreign Affairs Secretary Albert Del Rosario and former Ombudsman’s Conchita Carpio-Morales.

China has refused to observe the 2016 ruling and continues to militarize the global waterway — which is believed to be rich in oil and gas deposits.

Duterte has also been slammed for his administration’s pivot to China, and in turn, his softer stance on asserting the ruling.