Carpio pushes PH’s next step to keep the sea row ruling against China

Manila, Philippines – The government should promote an enforcement mechanism incorporated into the United Nations Convention on the Law of the Sea (Unclos) to ensure China’s compliance with the 2016 arbitration award defending Philippine sovereignty over the Western Philippine Sea (WPS) according to a retired senior. Associate Judge Antonio Carpio.

“The arbitration ruling is the law between the parties, but unless it is applied, there is no justice,” Carpio said, adding that the application of the ruling that annulled Beijing’s radical claims on the South China Sea could be one of President Duterte’s greatest achievements.

The retired magistrate made the remarks Thursday when the University of the Philippines (UP) Law School awarded him an honorary doctorate of law for his continued advocacy for the protection of Philippine sovereignty in the maritime dispute.

Carpio earned his law degree from UP Law School and graduated as a valedictorian in 1975. He later taught at the school for several years.

The awarding ceremony, which was broadcast live on social media, was attended by Associate Supreme Court Justices Marvic Leonen and Rosmari Carandang. Also present were retired Supreme Court magistrate Conchita Carpio Morales and former Foreign Secretary Albert del Rosario, UP President Danilo Concepción, UP Chancellor Diliman Fidel Nemenzo, and UP Law Fides Dean Cordero-Tan.

Formula for peace

The presentation of the arbitration case against China was one of the greatest achievements of former President Benigno Aquino III, Carpio said in a speech.

“If the MOU and TOR agreement with China is approved, one of President Rodrigo Duterte’s greatest achievements will be the execution of the arbitration award and the application to the broader South China Sea dispute of this formula, bringing peace and necessary stability in the region, “he added.

Carpio was referring to the memorandum of understanding and terms of reference signed by the Philippines and China on November 27, 2018 for joint oil exploration in the WPS. That development, he said, represented “some light at the end of the tunnel.”

‘Sufficient’ provisions

A final bilateral meeting was supposed to be held in Manila in March this year to discuss the partnership agreement, but it was canceled due to the pandemic and a new date has not been set.

The deal was between China National Offshore Oil Corp. and Forum Energy Ltd., which was awarded a service contract by the Philippine government to explore the Recto (Reed) Bank area, which is said to have larger gas reserves than Malampaya. . The contract foresees a formula of distribution of 60 to 40 in favor of the Philippine government.

Carpio said the service contract stipulates that the Philippine government owns the oil and gas and that Philippine law governs the service contract. “For me, these provisions are sufficient to preserve our sovereign rights in the WPS, considering that the Chinese-owned company will assume the rights and obligations of the service contract under the Philippine service contract system,” he said.

“As long as the structure in the MOU and TOR is not changed, I can answer to the Filipino people that Philippine sovereign rights are preserved in the WPS,” added Carpio.

He previously expressed optimism that China’s declaration that it would not interfere with Philippine exploration in the WPS and would eventually lead to the resolution of maritime disputes.

But he also acknowledged that China “may still back away” from its commitment under the MOU and TOR. “That is why we must address the serious weakness of Unclos, and that weakness is the absence of a mechanism to enforce the decisions of arbitral tribunals under Unclos. There is no world police force that can enforce the arbitration decisions of the UN courts. “

Next round

While states parties are bound by treaty to comply in good faith with arbitration tribunals organized under UNClos, there is no enforcement mechanism to prevent a losing party from becoming dishonest, Carpio said.

“A losing State party can become dishonest and there is no enforcement mechanism to prevent a losing party from becoming dishonest,” he said. In the next round of negotiations to update Unclos, Carpio said the Philippines could propose a built-in enforcement mechanism similar to the World Trade Organization where the winning party can impose additional tariffs on the losing party’s exports. With such a mechanism under Unclos, the deep-sea mining permits of a losing state party can be suspended, as well as its voting and representation rights in the body, Carpio said.

Rule of law

He called on the country’s “best and brightest legal warriors” to rise up and fight to liberate the country’s EEZ (exclusive economic zone) from foreign invasion. “In this historic battle to secure our EEZ, we must rely on the most powerful weapon invented by man to resolve disputes between states: a weapon that can immobilize armies, neutralize aircraft carriers, render nuclear bombs irrelevant and level the battlefield for small nations. and superpowers, ”Carpio said.

“That weapon, the great equalizer, is the rule of law. In the rule of law, law prevails over power, ”he added. With its forays into the WPS and SCS (South China Sea), China has “shown the world that power does the right thing.”

The UP Law School also cited the retired judge for his distinguished service in the judiciary and for his ardent defense of human rights and freedom of expression.

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