To end the territorial dispute between the Philippines and China on the Spratly Islands, retired Supreme Court (SC) Justice Antonio T. Carpio says the 2016 arbitral award will have to be enforced by the new administration after President Rodrigo R. Duterte’s term ends in 2022.
The arbitral award is the 2016 ruling by the Permanent Court of Arbitration (PCA) that favored the Philippines’ over China’s claims in the West Philippine Sea or the South China Sea where the disputed Spratly Islands are located.
In a webinar on Friday, Mr. Carpio said, “the challenges to the enforcement of the award all come from two sources: first from China, which is expected since China refuses to accept the award; and, second, from a totally unexpected source — from President Duterte of the Philippines.”
Mr. Duterte earlier said the Philippines does not want war with China as “China is a friend,” but that the Philippines’ sovereignty over the disputed waterway is non-negotiable even if the Philippines owes China a “debt of gratitude” for its donation of at least a million doses of the COVID-19 vaccine CoronaVac.
Mr. Carpio said further that all four states prejudiced by China’s so-called nine-dash line — Vietnam, Malaysia, Brunei, and Indonesia — and all outside naval powers — the US, the UK, France, Japan, Australia, Canada, India, the EU, and Russia — agree with the three main bases of the award.
The three main bases of the award are that China’s nine-dash line (which it claims shows the extent of its territory in the South China Sea) “has no legal effect and cannot serve as basis to claim waters and resources beyond what UNCLOS (the United Nations Convention for the Law of the Sea) allows”; that the Philippines has an exclusive economic zone in the West Philippine Sea untouched by China’s nine-dash line; and, that “none of the islands in the Spratlys and Scarborough Shoal generate an exclusive economic zone, only territorial seas,” he said.
However, Brendan Plant, Fellow at the Lauterpacht Center for International Law and Downing College, University of Cambridge, UK, said in the same webinar that tribunals cannot enforce rulings.
Mr. Plant suggested that the Philippines file a new dispute, or one under UNCLOS for China’s non-compliance with the 2016 arbitral award, which he says is a “breach of obligation to UNCLOS and to international law.”
In addition, Julian G. Ku, Senior Associate Dean at the Maurice A. Deane School of Law, Hofstra University, USA, also said in the webinar that the Philippines could pass a law to criminalize the presence of fishing vessels in its exclusive economic zones.
The Philippine task force had said earlier that about 240 Chinese vessels that China claims are ordinary fishing vessels are in the West Philippine Sea, within the Philippines’ exclusive economic zone. — Bianca Angelica D. Añago