Philippines Justice Carpio’s Carping is Becoming Quixotic
Carpio suggested that the Philippines could send its own Navy to join the FONOPs to assert its rights. (Photo: AP)
By Mark J. Valencia

Philippines Justice Carpio’s Carping is Becoming Quixotic

Jul. 26, 2019  |     |  0 comments

Philippines Associate Supreme Court Justice Antonio Carpio has responded to Philippines President Rodrigo Duterte’s challenge to him to suggest practical approaches to enforce the Philippines’ South China Sea arbitration victory against China — ‘short of war’. I admire Carpio’s patriotism and courage and I understand his frustrations in that he was part of the team that brought the arbitration against China and won what turned out to be a hollow victory.  But I think most of his recommendations to Duterte are unrealistic and will explain why. 


But first some background and context. The Philippines-China arbitration case was brought by the Republic of the Philippines against the People’s Republic of China under the United Nations Convention on the Law of the Sea (UNCLOS). It concerned certain claims and actions by China in the South China Sea. On July 12, 2016, the tribunal ruled in favor of the Philippines on almost all its complaints. The panel did not rule on any questions of sovereignty over land territory and did not delimit any maritime boundaries. But it did rule that China has ‘no historical rights’ based on its ‘nine-dash line’ claim. This reaffirmed the Philippine Exclusive Economic Zone (EEZ) claim. Perhaps more significant, it ruled that no above high-tide feature in the South China Sea is entitled to an EEZ or a continental shelf. China refused to participate in the arbitration and rejected the ruling. It refused to abide by it, leading to a series of disputes and confrontations over resources, exacerbated by the sovereignty clashes over various features in the area.


Duterte apparently foresaw the dire consequences of immediately pressing the issue and decided that the real costs to the Philippines and its people would far outweigh the more theoretical benefits of national pride. He likely reckoned realistically that the Philippines’ future lies in Asia, that the Philippines is militarily weak, that China is militarily and economically already dominant and likely to become ever more powerful, and that no country — including its ally, the US — was likely to come to its assistance militarily against China.  So, he decided to seek a temporary compromise.


Indeed, Duterte and his like-minded supporters saw the situation as requiring deft hedging and the art of delay until a time for a riper resolution of the issue within existing international law.  They did not see the need for immediate and overt action. They assumed that the arbitration panel’s ruling had become part of international law and was not likely to change easily or quickly. So, for the time being, Duterte tried to negotiate shared access to the resources. The result so far has been continued access to the fisheries for Filipino fishermen and the possibility of ‘joint development’ of any oil and gas. More importantly, Philippine-China relations —including economic relations — remain good. The alternative to Duterte’s policy — trying to implement the arbitration decision — would likely result in no access to the Philippines own resources and crippling economic, political and even military retribution by China.


But this strategy led to a vocal minority, including some within his own administration, to severely criticize him and this approach. Some called it appeasement and a failure to defend the Philippines’ constitutional right to the resources in its EEZ and on its continental shelf.  This faction was given a boost by a recent incident on the disputed Reed Bank in which a Chinese fishing boat hit an anchored Philippines fishing boat, sinking the Philippine boat and leaving its crew to their fate.


Duterte argued that given China’s determination to use all means to achieve its goals, it was better for the Philippines to negotiate than to ‘go to war.’ But Carpio called this a false choice. He clarified that ‘war is not an option and has never been an option’ because the Philippine Constitution ‘has renounced war as an instrument of national policy’. Carpio added, “We also know that if we go to war with China to enforce the arbitral ruling, we will lose and lose badly. Only a fool will go to war with China.” Instead he has offered several measures that Duterte could implement short of ‘war’.


Let’s look at each of Carpio’s suggestions.


1.     The first is that all the ASEAN claimant states should formally agree that no Spratly feature can generate a 200 nm EEZ. According to Carpio, this ‘would leave China isolated as the only disputant state claiming Exclusive Economic Zones from the Spratly islands.’ First, it is not at all clear that China claims an EEZ ‘from the Spratly Islands.’ Even if it does or did, it is not clear why being isolated on this issue would matter to it. After all it has already rejected the arbitration ruling in the face of international opprobrium.

Carpio may hope that the implementation of some of these confrontational suggestions will draw in the US politically and if necessary, militarily, to defend it. This is naïve wishful thinking.

2.     Next Carpio suggested that the Philippines should file an extended continental shelf claim in the South China Sea ‘where China is the only opposite coastal state.’ First, Vietnam is also an ‘opposite coastal state’ and Malaysia is an adjacent coastal state. Moreover, the two have claimed a joint extended continental shelf. The Philippines was asked if it wanted to join the joint submission to the UN Commission on the Limits of the Continental Shelf but it refused because part of the Malaysian claim was from Sabah which the Philippines still claims. Instead, the Philippines objected to the submission stating that ‘the joint submission made by Malaysia and Vietnam laid claims to areas that were disputed because they overlapped with those of the Philippines. The Philippines requested the Commission to refrain from considering the submissions unless and until the parties had discussed and resolved their disputes.’ China also objected, apparently based on its 9-dash line claim. It is likely that Malaysia would object to such a Philippines claim. In any event, due to a backlog, the Commission is not likely to consider the Malaysia-Vietnam claim until 2035. This makes Carpio’s suggestion and responses to it practically moot for the foreseeable future.


3.     The third suggestion is for the Philippines to be more aggressive in defending its rights.  He suggested that the Philippines send its Coastal Guard vessels ‘to drive away foreign poachers and assert our sovereign rights’ over resources. This would obviously lead to incidents and confrontations that the Philippines Coast Guard would be unable to handle. If this is a ploy to draw in the US militarily, it will likely fail.


4.     Carpio also suggested that the Philippines could ‘encourage the Freedom of Navigation and Overflight Operations’ of the US, UK, France, Australia, Japan, India and Canada in the South China Sea.’ First of all, only the US — and the UK once — had engaged in US defined Freedom of Navigation Operations (FONOPs) challenging ‘illegal claims’ in the South China Sea, especially those of China. Warships of the other named counties sailed through and even conducted exercises in the South China Sea. But China had never challenged passages that paid ‘due regard’ to its laws and interests. To call these FONOPs is to misunderstand the situation.


Moreover, for the Philippines to ‘encourage’ US FONOPs could be hypocritical and politically counterproductive, since the US uses FONOPs to frequently challenge the ‘excessive’ maritime claims of its fellow ASEAN members as well as those of the Philippines such as its excessive baselines and its claim of archipelagic waters in the Sulu Sea as internal waters.


5.     Carpio also suggested that the Philippines could send its own Navy to join the FONOPs to assert its rights under the arbitral ruling. Sending the military into an area fraught with territorial disputes is to virtually invite confrontation and conflict which the Philippines cannot hope to win. Perhaps he hopes that China’s military will attack Philippine military assets and thus draw in the US militarily.


It should be emphasized that all of the sovereignty claims to these features including those of the Philippines have serious weaknesses in modern international law which requires continuous, effective administration and control, and acquiescence by other claimants. China’s sovereignty claims are just as valid or invalid as those of the other claimants.


6.     Finally Carpio recommended that the Philippines government ‘support private sector initiatives to enforce the arbitral Award.’ But China has a far superior economy and economic leverage that it can use against the Philippines. The Philippines will surely lose such a contest.


Most of these suggestions are unrealistic and would likely lead to intimidation by China if not outright confrontation and subjugation. The Philippines would suffer greatly economically and diplomatically, regarding most of its fellow ASEAN members who are increasingly influenced by China. Carpio may hope that the implementation of some of these confrontational suggestions will draw in the US politically and if necessary, militarily, to defend it. This is naïve wishful thinking. The US — especially under ‘America First’ President Trump — is not going to risk war with China for the Philippines, despite whatever promises have been made.


The point is that all of Carpio’s suggestions have problems and some are quixotic. Duterte’s approach remains the least dangerous response to a bad situation, at least for the time being.


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