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Justice Carpio: PHL has legal options to assert rights in South China Sea

Supreme Court Senior Associate Justice Antonio Carpio on Friday said there are legal remedies available to assert the country's rights over the South China Sea, especially as China continues to cross into the Philippine Exclusive Economic Zone (EEZ).

The Philippines can seek to cancel China's rights to its seabed if Beijing continues to ignore the international court ruling on the Philippines-China maritime dispute, Carpio said in a lecture at the University of the Philippines College of Law in Diliman, Quezon City,

On July 12, the Permanent Court of Arbitration in The Hague, Netherlands issued a 501-page landmark ruling upholding the Philippines' rights under the United Nations Convention on the Law of the Sea (UNCLOS).

Citing the so-called "Nine-Dash Line Map" that encroaches into the sea areas of several countries, including about 80 percent of the Philippines' maritime territory, the ruling invalidated China's claims to most of the South China Sea.

Carpio noted China continues to operate within the Philippine EEZ but as a "squatter."

"We can ask the international seabed authority to suspend the exploration permits, the UN (United Nations) commission on the limits of the continental shelf to suspend the application of China," Carpio said during an open forum.

"We can sue China if China brings a gas platform in the Reed Bank. We can sue China for damages to the marine environment," he said.

Carpio said there are many legal remedies to show China that the Philippines is not helpless.

"There may be other things. We have to be creative about this. I'd like the legal community to think about it, but we don't have to do this right now. We have to think about it and let China know we are not helpless. The important thing here is China will know we are not helpless," said Carpio, who has made it his personal advocacy to promote Philippine rights over the South China Sea.

Two most urgent things

During the open forum, Carpio said the two most important things that the Philippines needs to address in the South China Sea are: "One, to find a way for our fishermen to fish again at Scarborough Shoal. Two, to find a way for our survey ships to go back to Reed Bank to start their operations. Those for me are the two most urgent things to do."

Scarborough Shoal is called Panatag Shoal by the Philippines. Its old name was Bajo de Masinloc, meaning "Lower Masinloc."

The area falls under the municipality of Masinloc, Zambales. Even old maps published in 1734, 1792, and 1808 showed Bajo de Masinloc as part of Zambales.

China, on the other hand, calls this area Huangyan Island, although it is not an island—just a shoal or a sandy elevation surrounded by water.

Scarborough Shoal is a triangular chain of coral reefs and rocks and only five of the rocks can be seen above water during high tide. The area is a rich fishing ground and host to endangered species.

Chinese coastguards are still preventing Filipino fishermen from fishing at Scarborough Shoal.

Carpio noted China needs fishing grounds like Scarborough Shoal as most of its coastal waters are polluted.

He cited the importance of asserting Philippine rights over Reed Bank, also known as the Recto Bank basin in the Kalayaan Group of Islands or the Spratlys.

Carpio said the Philippines needs the oil and natural gas in Reed Bank.

In March 2015, the Department of Energy (DOE) suspended all drilling and exploration works in the area covered by Service Contract (SC) 72 as it was the subject of the maritime dispute between the Philippines and China.

On July 14, two days after the PCA handed down the ruling on the maritime dispute, Philex Petroleum Corp. said it will wait for the Duterte administration's cue on whether exploration activities in the Reed Bank can again be pursued.

Philex Petroleum, through London-based subsidiary Forum Energy Plc, was in talks with China National Offshore Oil Corporation (CNOOC) on jointly developing a part of the Reed Bank.

However, Carpio, during the forum explained that there are constitutional constraints that disallow joint exploration of the Reed Bank: Article I on National Territory, and Article XII Section II Paragraph II on National Economy and Patrimony of the 1987 Constitution.

Carpio explained that national territory includes the seabed, subsoil and other submarine areas. Under UNCLOS, affirmed by the international tribunal, the Philippines has "sovereign rights and jurisdiction" over its EEZ in the West Philippine Sea.

On national economy and patrimony, Carpio said the state is duty-bound to protect marine wealth within its EEZ. He said the Constitution specifies that the state must "reserve its use and enjoyment exclusively to Filipino citizens."

Carpio also highlighted China's definition of "joint development," noting that China wants a joint economic development only in the Philippines' EEZ and not in China's EEZ, meaning the deal is unequal and not reciprocal.

He noted how China set as a condition for joint exploration for the Philippines to first acknowledge China's dominion over the disputed territories.

China's 'three warfares'

Carpio said he wants Filipinos to understand their rights under UNCLOS, or the Law of the Sea Treaty.

"Once you know your rights, you will fight for it," he said.

He hopes that Filipinos will continue to insist on their rights over the South China Sea, especially as China is "resorting to three warfares to achieve its objectives" in the area:

  • "Public Opinion Warfare" by continuing to claim that China has historical rights to most of the South China Sea;
  • "Legal Warfare" by insisting that China's historical claims exempts it from "prevailing legal norms" such as UNCLOS;
  • "Psychological Warfare" by displaying military might in the disputed areas

Carpio said he is pleased that President Rodrigo Duterte earlier stated the Philippines will continue to assert its rights over its EEZ based on the Philippine Constitution and the ruling of the international tribunal.

The Philippines "will not deviate from the ruling and the Constitution," Carpio said. — VDS, GMA News