Philippines can file another case against China
The Philippines can file another case against China before a United Nations tribunal for threatening war against the country and demand that Beijing comply with an international court ruling that invalidated its massive claim over the South China Sea, Senior Associate Justice Antonio Carpio said Saturday.
Carpio – one of the country’s leading maritime legal experts and a member of the Philippine legal team to the Permanent Court of Arbitration (PCA) in The Hague, Netherlands – was reacting to President Rodrigo Duterte’s revelation that Chinese President Xi Jinping threatened to use force against the Philippines if it will extract oil in the Reed Bank.
Reed Bank is an offshore area internationally recognized as part of the Philippines’ Exclusive Economic Zone (EEZ) in the West Philippines Sea but China claims as part of its territory.
Beijing says it has historic claims over nearly the entire South China Sea, including areas that are within Manila’s EEZ called the West Philippine Sea.
“China’s threat of war against the Philippines over the West Philippine Sea reveals the aggressive design of China against the Philippines,” Carpio said. “No less than Chinese President Xi Jingping has delivered the threat personally to Philippine President Rodrigo Duterte.”
Carpio stressed that Duterte has the constitutional duty to use all legal means under international law to protect Philippine territory.
“In the face of China’s open threat of war to seize Philippine EEZ in the West Philippine Sea, an area larger than the total land area of the Philippines, the President cannot simply do nothing, or worse acquiesce to China’s action, for inaction is the opposite of protecting Philippine EEZ,” he said.
“Under international law, acquiescence is the inaction of a state in the face of threat to its rights under circumstances calling for objection to the threat to its rights. Acquiescence means the Philippines will lose forever its EEZ in the West Philippine Sea to China,” Carpio warned.
In a statement on Saturday, presidential spokesperson Ernesto Abella said the Philippines enraged China “in a frank discussion on possible oil explorations in the WPS (West Philippine Sea).”
“President Duterte was forthright about its economic rights awarded by the Arbitral Court in the Hague, a claim the Chinese leader said they would vigorously contest given their historic claims to the area,” Abella said.
He said that because of the “complexity” of the issue, “both parties agreed to pursue a more peaceful resolution to the matter that satisfies both our sovereign and economic rights.”
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Carpio said this “extremely troubling development” calls for all Filipinos to unite to defend the West Philippine Sea in accordance with the Constitution, international law and UN Convention on the law of the Sea or UNCLOS.
As a nation that under its Constitution has renounced war as an instrument of national policy, Carpio said the Philippines’ recourse is to bring China’s threat of war to another UNCLOS arbitral tribunal to secure an order directing China to comply with an earlier court ruling that declared Reed Bank part of Philippines’ EEZ.
“The threat of China to go to war against the Philippines if the Philippines extracts oil and gas in the Reed Bank, or in any area within Philippine EEZ in the West Philippine Sea, is a gross violation of the United Nations Charter, United Nations Convention on the Law of the Sea, and the Treaty of Amity and Cooperation in Southeast Asia to which China and the Philippines are parties,” Carpio said.
Carpio reminded China that the UN Charter outlaws the use or threat of force to settle disputes between states.
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Reed Bank is vital to Philippine national interest as it is the only replacement for Malampaya, which supplies 40 percent of the energy requirement of Luzon.
Carpio warned that Malampaya will run out of gas in less than 10 years and unless the Philippines develops Reed Bank, Luzon will suffer 10 to 12 hours of brownouts daily 10 years from now and will devastate the Philippine economy.
The Philippines, he said, can also seek damages “for every day of delay that the Philippines is prevented by China from exploiting Philippine EEZ.”
Carpio also said that the Philippines can sponsor a resolution condemning China’s threat of war against the Philippines before the UN General Assembly where Beijing has no veto power.
Manila can also demand that China conform with the July 12, 2016 ruling handed down by the PCA which delivered a sweeping victory to the Philippines on the case it filed against China and declared its historic claim over nearly the entire waters as illegal.
China has ignored the arbitral decision, calling it “ill-founded” and “naturally null and void.”
While ignoring the ruling, China has pressed ahead with its construction of seven artificial islands in the South China Sea. Now completed, the islands have been equipped with military facilities, runways and surface-to-air missiles.
Such move sparked alarm among Southeast Asian nations, Japan, Australia and the United States, fearing that it would increase tensions and hinder freedom of movement in the area where a large volume if international trade passes through.
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Former Foreign Secretary Albert del Rosario, who spearheaded the Philippines’ arbitration case against China, said Beijing’s threat of war against the country is an indication that it does not intend to respect the rule of law.
“Contrary to our position that right is might, China has strongly declared that it is might that will trump what is right,” Del Rosario said.
“The utterance by the leadership of China on a threat to go to war if the Philippines drills for oil within its Exclusive Economic Zone in the South China Sea clearly demonstrates to the world China’s position regarding the arbitral tribunal outcome that is consistent with UNCLOS,” he added.
Carpio explained that an arbitral tribunal created under the UNCLOS, to which China is a party, has already ruled with finality that the Reed Bank is within the EEZ of the Philippines and only the Philippines can exploit the natural resources there.
Duterte said the threat of armed confrontation compelled him to pursue friendly ties with China, which pledged millions of dollars worth of aid and development package to the Philippines.
Carpio stressed that the President has the constitutional duty to use all legal means under international law to protect Philippine territory.
Carpio also said that China’s blatant threat of war against the Philippines demands that the Philippines strengthen its defenses and alliances, particularly with long-time treaty ally, the United States.
The US is the only country with whom the Philippines has a mutual defense treaty.
“The United Nations Charter recognizes the right of states to mutual self-defense against armed aggression. The Philippines can ally with the United States because the United States does not claim the West Philippine Sea or any Philippine territory,” he said.
He said the country cannot ally with China because it wants to “grab for itself” the West Philippine Sea and the southern part of the South China Sea, called the Spratlys.
“Among all the countries in the world, only China has threatened the Philippines with war over Philippine EEZ in the West Philippines Sea,” Carpio said, adding other claimant states – Vietnam, Malaysia, Brunei – recognize Philippine EEZ, including Reed Bank.