Remarks on the Launching of the Philippine Law Journal (PLJ) Website Hon. Senior Associate Justice Antonio T. Carpio

8/11/2019 Remarks on the Launching of the Philippine Law Journal (PLJ) Website Hon. Senior Associate Justice Antonio T. Carpio

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REMARKS ON THE LAUNCHING OF THE PHILIPPINE

LAW JOURNAL WEBSITE

Justice Anto nio T. Carpio

Senior Associate Justice

Supreme Court of th e Phil ippines

8 February 2013

Dean Danny Concepcion, Prof. Raffy Morales the Faculty Adviser of the PhilippineLaw Journal, other members of the U.P. Law Faculty, Chair Jenny Domino and othermembers of the PLJ Editorial Board, distinguished guests, fellow students of the law,

friends: good afternoon to everyone.

Let me congratulate Chair Jenny and her Editorial Board for launching the on-linePhilippine Law Journal. This has been the dream of many PLJ Chairs, and it hashappened finally during the watch of Chair Jenny. Today, the PLJ joins the cyberspaceage. However, there is still a lot of work to do, specifically to digitize, proof read, andupload the back issues of the PLJ spanning almost 100 years. Fortunately, thesoftware program that Sam Galope, our IT specialist, developed for the PLJ will makeuploading articles, and managing the website, a breeze. Thank you Sam for a wonderful

job in developing the PLJ website.

Of special interest to many of us here this afternoon is the on-line only PLJ issue on theWest Philippine Sea dispute. The on-line PLJ issue on the West Philippine Sea disputeis a purely cyberspace issue, devoted exclusively to the multi-state maritime disputeover large areas of the South China Sea. The focus, of course, will be on the action ofthe Philippines to bring China to arbitration under UNCLOS. Appropriately, the firstarticle uploaded to this issue is the Notification and Statement of Claim given by thePhilippines to China. Everyone should read carefully this Statement of Claim it is awell-crafted document, skillfully avoiding territorial or land sovereignty issues as well asmaritime issues that China has reserved from arbitration, yet putting at issue the majorsource of the South China dispute the validity of Chinas 9-dash line claim to almost90% of the South China Sea.

The Statement of Claim says that last 2012 China seized the exact word used isseized six small rocks, barely 3 meters above water at high tide, in ScarboroughShoal. You will recall that last November 2012 the Chinese Vice-Foreign Ministerinformed our Foreign Secretary that the Chinese Coast Guard vessels will remainpermanently in Scarborough Shoal. This means China has seized, taken over andoccupied permanently Scarborough Shoal, which was previously under the possessionand control of the Philippines.


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We had prior possession and control because in the 60s and 70s U.S. and Philippineair force planes used to drop bombs on Scarborough Shoal for target practice. Therecould be no better proof of possession and control of a territory than dropping bombs onit for target practice. We dropped the bombs without any protest from China or anyother country. We gave prior worldwide Notices to Mariners, thru the usual international

maritime channels, to stay clear of the area during the bombing practice.

We know, moreover, that Scarborough Shoal is expressly mentioned in the BaselinesLaw as part of the Philippine national territory. Now, what should the President of thePhilippines, or of any country for that matter, do when part of the national territory isseized, taken over and occupied by another country?

There are four options in responding to such seizure or occupation by a foreign power.

1. The first option is to send naval and air assets to evict the foreign occupier. Thisis not an option for the Philippines. We do not have the military capability to evict

the Chinese Coast Guard Vessels in Scarborough Shoal.2. The second option is to request action or assistance from the U.N. SecurityCouncil and our ASEAN partners. This is not an option for thePhilippines. China is a permanent member of the U.N. Security Council, withveto power. Our ASEAN partners can be divided into five groups: those who livenext to China and cannot afford to antagonize China; those who need economicaid from China; those who are neutral because they have no competing claimswith China; those who have only minor competing claims with China and justprefer to lie low because they need to trade with China or find it not worth thetrouble to press the issue with China; and those who have substantial competingclaims with China and have no choice but to defend their turf lest China run over

them. Since ASEAN acts only by consensus, the Philippines obviously cannotrely on ASEAN for assistance.3. The third option is to file a diplomatic protest with China. This is not an option for

the Philippines. In 1995, when China seized Mischief Reef by building afishermansshelter, our diplomatic protest with China fell on deaf ears. Now, 17years later, Chinas fishermans shelter in Mischief Reef has turned into anintimidating military fortress. Unless we do something more effective, China will

just slowly swallow our reefs and shoals, whether submerged or not.4. The fourth option, the only remaining option for the Philippines, is to find a way to

bring China to arbitration in an international tribunal where the playing field islevel, where warships and warplanes, as well as economic sanctions, do notcount, but where the rule of international law reigns supreme. Such arbitration isa peaceful resolution of a dispute between states in accordance with internationallaw. But how do we compel China to accept arbitration? Now, this requires alittle legal creativity. That is why I said earlier you have to read our Statement ofClaim carefully.

We all know that on territorial or land sovereignty issues, the disputant states must givetheir consent to the jurisdiction of the arbitral tribunal before the tribunal can act. We


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also know that China will never give its consent to arbitration on territorial sovereigntyissues. But China, by ratifying UNCLOS, has actually agreed to compulsory arbitrationon any interpretation or application of the Convention, save only on the issues that itmade reservations as allowed by the Convention. Chinas reservations refer tomaritime boundary delimitations, historic bays and title, and military activities.

The issues of whether Chinas 9-dash line claim violates the 200 NM EEZ granted tocoastal states under UNCLOS, whether the islands or rocks in the Spratlys orScarborough Shoal generate only a territorial sea or also EEZs, and whether China hasa right to appropriate fully and permanently submerged reefs like Mischief Reef that areoutside the EEZ of China and within 200 NM of the Philippines, are outside of thereservations made by China. Thus, the Philippine position is that China can be broughtto compulsory arbitration on these issues.

So the fourth option, to bring China to arbitration before an international tribunal, isactually possible but not on the issue of Chinas seizure or occupation of Scarborough

Shoal, which is a territorial or land sovereignty issue, but on the validity of Chinas 9 -dash line claim and on the status of islands, rocks and submerged reefs, which arepurely maritime issues regulated by the Convention.

Chinas 9-dash line claim is the basis for its expansive claim to the submerged areas inthe South China Sea that lie beyond the territorial sea of the islands androcks. Invalidating the 9-dash line claim, and securing a ruling that none of the islandsand rocks generate EEZs, will narrow down considerably the dispute to purely territorialor land sovereignty disputes over who owns the islands and rocks and their surrounding12 NM territorial sea. We can afford to shelve resolution of this territorial or landdispute, including who has sovereignty over Scarborough Shoal, for the next 100 or

even 1000 years.

Is this good for us? Yes, because there can no longer be any legal dispute that the fullysubmerged Reed Bank, which is where the rich reserves of gas is located, belongsexclusively to the Philippines, being within 200 NM from Palawan and more than 800NM from China. The resolution of the legal issue is important for investors.

So, when you look at the four options available to the Philippines, we really had nochoice but to go for the fourth option. It was our only viable option in response toChinas seizure of Scarborough Shoal. Any other option would be ineffective and alsoextremely humiliating to us as a nation. That is why I fully agree with the decision of thePresident to bring China to arbitration under UNCLOS.

But what are our chances of success under such arbitration? I have also four possiblescenarios as to the outcome of the arbitration. But it will take me much longer todiscuss these four scenarios, and I think I have already said enough. My purpose is justto give you a preview of what exciting articles you can read in the On-Line PLJ issue onthe West Philippine Sea dispute. So visit regularly the PLJ website at plj.upd.edu.ph.


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Thank you and a good day to all.

Documents

Remarks on the Launching of the Philippine Law Journal (PLJ) Website Hon. Senior Associate Justice Antonio T. Carpio