Reaction paper on the Philippines-China Territorial Seas Arbitration

Issue
By: Merlyn M. Casibang Jr.
JD-II

The battle to defend our sovereign rights in the West Philippine Sea is
also a battle for the hearts and minds of the peoples of the world, a statement
from former Associate Justice Antonio T. Carpio during his speech at the
conferment of his honorary doctoral degree from the University of the
Philippines on December 10, 2020. His statement was very clear, that we
Filipinos most especially our leaders should make a stand in the enforcement
of the arbitration ruling which favors the Philippine government over its
maritime dispute with the government of the People’s Republic of China.

Let me start this paper, by taking back from the origins of the issue.
The maritime dispute which eventually resulted in an arbitral decision can be
traced to the collapse of a joint exploration agreement between the
Philippines, China and Vietnam in the year 2007. This agreement involved
the conducting of a seismic review of potential hydrocarbons in the West
Philippine Sea, and it is in the aftermath of this fallout that squabbles over
islands and other marine territories in the West Philippine Sea intensified. In
the year 2012, these escalations reached a tipping point when a Chinese
Coast Guard ships entered the Scarborough Shoal, a formation in the
Kalayaan Islands Group (internationally known as Spratly Islands), and
harassed Filipino fishermen peacefully fishing in the area. China then
proceeded to establish a blockade of the shoal, and continues to maintain
ships in the area up to this day. In response, the Philippines first sought a
unified Statement from the Association of Southeast Asian Nations to
condemn China’s acts. However, it failed to obtain such Statement, then, the
Philippines opted to have the dispute settled through arbitration.
 The Philippine brought the maritime dispute before the Permanent
Court of Arbitration which was designated as the registry of the proceedings
meaning the Permanent Court of Arbitration will primarily hosts the arbitral
tribunal and provides it administrative support. An arbitration is one of the
pacific or amicable modes of settling disputes which is internationally
recognized. It is stated in Article 287 of the 1982 United Nations
Convention on the Law of the Sea allows States four distinct options with
regard to dispute settlement which can be categorized into arbitration or
adjudication. Also as provided by the same article, if the States involved
have not indicated a preferred mode of dispute settlement, the mode to be
taken would automatically be arbitration under Annex VII of the UNCLOS
with an arbitral tribunal. Since China and Philippines could not reach an
agreement as to which mode of dispute settlement to take arbitration under
Annex VII was therefore the correct and legal remedy. The dispute started
in 2013 and the Permanent Court of Arbitration on July 12, 2016 ruled in
favor of the Philippine government which invalidated China’s nine-dash line
and affirmed with finality that the Philippines has a full exclusive economic
zone in the West Philippine Sea. The People’s Republic of China had
questioned the Arbitral Award or decision by the Permanent Court
Arbitration stating that it did not participate in the proceedings conducted by
the Arbitral court. The Permanent Court of Arbitration had justified that its
continuous hearing of the dispute and eventual rendering of an arbitral
decision on the matter despite non-participation of China relied on Article 9
of Annex VII of the UNCLOS which provides that regardless of non-
participation of a party, the remaining party may ask the tribunal to continue
the proceedings and to make an award. Likewise, absence of a party or
party’s failure to defend its case was expressly stated to not be a bar to the
proceedings. The Arbitration court had taken measures to safeguard the
rights of both parties in the dispute. The Chinese government which ratified
the UNCLOS including the Philippines, consent to the contents of the
convention and must comply with its obligation in good faith. So, both
parties are obliged to comply with the Convention, including its provisions
regarding the resolution of disputes, and to respect the rights and freedoms
of other States under the Convention including the arbitration ruling of the
Permanent Court of Arbitration.

Indeed, this arbitral ruling of the Permanent Court of Arbitration is a

landmark legal victory for the Philippines most especially to the people
behind the issue who opted to file it before the Arbitration court and of
course, to our fisherfolks in the West Philippine Sea as fishing is a major
source of their income for their life’s sustenance. Although, the Philippines
and China had a Memorandum of Agreement to cooperate in exploiting oil
and gas in the West Philippine Sea under the Service contract system of the
Philippines and both of them signed the Term of Reference for the said
memorandum. And as long as the structure in the Memorandum of
Agreement and the Term of Reference will not be changed, the Filipino
people sovereign rights in the West Philippine Sea will be preserved. If the
Memorandum of Agreement and the Terms of Reference with China pushes
through, I believe that one of the greatest achievements of the Duterte
Administration will be the enforcement of the arbitral ruling, and its
application to the wider West Philippine Sea dispute, bringing much needed
peace and stability to our country.

Although, we know for a fact that the Chinese government may still
walk back from its commitment under the Memorandum of Agreement and
Terms of Reference. That is why the Philippine government must address
the serious weakness of the UNCLOS and that weakness is the absence of a
mechanism to enforce decisions of arbitral tribunals under the UNCLOS.
We do not have world policeman who can enforce the arbitral rulings of the
UNCLOS tribunals. Each state party to the UNCLOS is treaty bound to
comply in good faith with the decision of the arbitral tribunals organized
under the UNCLOS. However, a losing state party can go rogue and there is
no enforcement mechanism to stop the losing party from going rogue. This
is now the problem of the Duterte administration, even if the arbitration
ruling favors our government still he is hesitant from enforcing it taking into
consideration that the superpower China might wage war against the
Philippines. And this is one of the reasons why President Duterte still
wanted to have peaceful negotiations with the Chinese government because
once we enforce it against them and letting them leave the disputed West
Philippine Sea, a tension or even war might occur and of course, the
Philippines is not ready to any war and as one of the declaration of
principles enshrined in Article II of the 1987 Philippine Constitution, our
country renounces war as an instrument of national policy. And as a student
of law, I understand where the President stands, he is still wary about our
people’s safety and interest after all he is our father and as a father of the
country, he just wanted that his people at the end of the day be at peace. And
we can only attain peace and order, if we can continue settling our disputes
with China amicably.

As law abiding citizen of the Republic of the Philippines and a

stakeholder of the legal profession, who has the moral and lawful duty to
defend our country against any form of both foreign and local aggression,
we must make a stand in defending our sovereign rights over our territorial
seas and exclusive economic zones located in the West Philippine Seas. By
international law, the territorial waters of the Philippines include anything
within the 200-mile exclusive economic zone from our shores. It represents
part of our way of living that should be defended. That is why our
government should always make ways to ensure that public interest like our
sovereign rights in the West Philippine Sea is its priority.