(AGENPARL) – QUEZON CITY (PHILIPPINES), mar 15 dicembre 2020
It was 1995, UP College of Law alumnus and retired Justice Antonio Carpio said, when China first seized Mischief Reef, a submerged atoll located within the Philippines’ exclusive economic zone (EEZ) on the West Philippine Sea. At that time Chief Presidential Legal Counsel for former President Fidel V. Ramos, Carpio remembered how with neither a formidable military nor recourse to the United Nations Convention on the Law of the Seas (UNCLOS), the nation could only watch as a more powerful state grabbed territory from a weaker one without consequence.
“China demonstrated to the world that might makes right,” Carpio said. And with China claiming up to 80% of the country’s territory on the West Philippine Sea, this would only be the beginning. “It was obvious that Mischief Reef would neither be the first nor the last geologic feature that China would seize from the Philippines.”
In his acceptance speech after receiving a Doctor of Laws honoris causa degree from the University of the Philippines on December 10, 2020 at UP Diliman’s Malcolm Hall, Carpio narrated how this event that “left a scar in (his) mind” would later help influence his spirited defense of the country’s sovereign rights on the West Philippine Sea by questioning China’s claims to the territory via its ‘9-dashed line.’
It would be in 2011, after Carpio wrote the unanimous decision to Magallona v. Executive Secretary that amended the country’s archipelagic baseline to conform to UNCLOS, that he realized that the country now had its territorial house in order and could build a better territorial case against China. Two months after this decision, with the Philippines fully UNCLOS-compliant, Carpio led the charge along with fellow lawyers and intellectuals to bring China’s ‘9-dashed line’ claims before an UNCLOS tribunal.
“China’s 9-dashed line simply cannot co-exist with UNCLOS. Upholding one means killing the other,” said Carpio in a speech at the 50th anniversary of the Ateneo de Davao College of Law. The challenge, thenceforth, was to bring the case before UNCLOS, given China previously opting out of compulsory arbitration.
In this challenge he was joined by what they coined the ‘UNCLOS group’, made up of Dr. Jay Batongbacal, Dr. Diane Desierto, the late Dr. Aileen Baviera, Atty. Lani Somera, Atty. John Molo, Atty. Elma Leogardo, Dr. Suzette Suarez, and Dr. Lowell Bautista.
After China seized Scarborough Shoal after a vessel standoff in 2012, the preliminary work had already been done. According to Carpio, when then President Benigno Aquino III realized that China would not leave the shoal, Aquino instructed Foreign Secretary Albert del Rosario to file the arbitration case. And with the preliminary work mostly having been done by the UNCLOS Group with the approval of international experts, the Statement of Claim against China Pursuant to UNCLOS was filed on January 22, 2013.
The Philippines made its case in an arena where facts and rule of law could trump naked military might. In 2015, Carpio complemented this effort with a world lecture tour where the Philippine perspective in the dispute was explained to experts and interested parties.
Then, in 2016, the Arbitral Award from UNCLOS invalidated with finality China’s 9-dashed line and declared that the Philippines had full EEZ on the West Philippine Sea. Carpio then gave a few thoughts on how a peaceful enforcement of the ruling could be enforced, citing the Memorandum of Agreement (MOA) signed between the country and China in 2018 “to cooperate in exploiting oil and gas in the WPS under the Service Contract system of the Philippines”. Under the Service Contract system, Carpio said that the service contractor would receive 40% of the net proceeds as payment for capital, services, and technology. The Philippine government, on the other hand, would receive 60% as the owner of the oil or gas—the same terms in the country’s contract with Shell, which operates the Malampaya gas field in the WPS.
This stated ownership by the Philippine government and another provision stating that Philippine law governs the contract is sufficient for Carpio to preserve the country’s sovereign claim to the WPS, assuming the Chinese state-owned company assumes the role of service contractor.
“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,” Carpio said. And while he believes that one of the greatest achievements of the Aquino administration was the filing of the arbitration case that secured the nation’s EEZ, he thinks that the Duterte administration can have a similar feather in its cap if the MOA and its Terms of Reference (TOR) are successfully implemented, bringing peace and stability to the region.
Carpio, ever the realist, also believes that enforcement mechanisms should be introduced to UNCLOS in the next round of negotiations. This is to ensure that losing parties cannot go rogue after unfavorable decisions. Possible sanctions, he said, could include automatic suspension that would include the suspension of its deep-sea mining permits, voting rights, and representation in UNCLOS committees.
Ultimately, he thinks that the battle to defend the nation’s EEZ from China mirrors those our forbears waged against colonizers from the 16th to the 20th century, where the country’s best and brightest gave their lives “to make the Philippines free”. In this new century’s fight against foreign encroachment, Carpio advises utilizing the “most powerful weapon invented by man in the settlement of disputes among states”.
“That weapon—the great equalizer—is the Rule of Law. Under the Rule of Law, right prevails over might.”