MANILA can file another case against Beijing before a United Nations tribunal for threatening war against the Philippines over the dispute in the West Philippine Sea (South China Sea), Senior Associate Justice Antonio Carpio said on Saturday.
In a statement, Carpio said the Philippine government can run to the UN tribunal under the United Nations Convention on the Law of the Sea (Unclos) to protect Philippine territory.
“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 (exclusive economic zone) in the West Philippine Sea, is a gross violation of the United Nations Charter, Unclos, and the Treaty of Amity and Cooperation in Southeast Asia to which China and the Philippines are parties,” Carpio said.
“As a nation that under its Constitution has renounced war as an instrument of national policy, 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 the ruling of the Unclos arbitral tribunal that declared the Reed Bank part of Philippine EEZ,” he added.
Carpio was referring to the July 26, 2016 ruling of a UN-backed arbitral court in The Hague in favor of the Philippines. The decision invalidated China’s claims on the disputed waters, including its nine-dash-line map covering nearly the entire South China Sea.
Carpio issued the statement after President Rodrigo Duterte’s revelation on Friday that China had threatened to use force against the Philippines if it will extract oil from Recto (Reed) Bank.
Recto Bank is internationally recognized as part of the Philippines’ EEZ in the West Philippine Sea, but is claimed by China as part of its territory.
Carpio insisted that the UN-backed Permanent Court of Arbitration in The Hague has already ruled with finality that the Recto Bank is within the Philippines’ EEZ, and only the Philippines can exploit natural resources within the area.
He also reminded China that the UN Charter outlaws the use or threat of force to settle disputes between states.
Carpio was part of the Philippine legal team that lodged a petition against China at The Hague, Netherlands, to invalidate Beijing’s claims over the resource-rich South China Sea.
Duterte has played down that ruling and pushed for rapprochement with China, seeking billions of dollars in trade and investment from Beijing.
On Friday, Duterte claimed China threatened to go to war over the maritime dispute if the Philippines began drilling for oil.
“If it’s yours, well that is your view, but my view is that I can drill the oil if there is some inside the bowels of the earth, because it is ours,” he said in remarks in Davao City, recalling a conversation with Chinese officials without specifying when it took place.
“They answered: ‘Well, we are friends. We do not want to quarrel with you. We would want to maintain the present warm relationship. But if you force the issue, we will go to war,’” Duterte said.
‘Inaction means losing EEZ’
Carpio said Duterte “cannot simply do nothing, or worse acquiesce to China’s action, for inaction is the opposite of protecting Philippine EEZ.”
“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,” he said.
He said China is the only country that “has threatened the Philippines with war over Philippine EEZ in 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,” he 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 Unclos,” he added.
Recto Bank is vital to Philippine national and economic interest as it is the only replacement for the Malampaya offshore gas field, 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, devastating the Philippine economy.
Damages for every day of delay
The Philippines, the magistrate 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 even sponsor a resolution condemning China’s threat of war against the Philippines before the UN General Assembly, where Beijing has no veto power.
China’s threat of war against the Philippines requires the Philippines to strengthen its defenses and alliances, particularly with Washington, he said.
“The Philippines must strengthen its alliance with the United States, 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,” he said.
The United States does not claim the West Philippine Sea or any Philippine territory, he noted.
The country cannot align itself with China, he pointed out, because it wants to grab for itself the West Philippine Sea and the Spratlys.
“As long as China threatens the Philippines with war over the West Philippine Sea, the Philippines can never lower its guard in its dealings with China,” Carpio said.
In Malacañang, presidential spokesman Ernesto Abella said the Philippines and China have agreed to resolve the dispute in South China Sea using “more peaceful” means.
Abella admitted that the attempt of President Duterte to raise the issue of oil exploration in the West Philippine Sea alarmed the Chinese government.
He said the best way to settle the dispute is to push for a diplomatic approach rather than invoke the arbitration ruling.
“The Philippines engaged China in a frank discussion on possible explorations in the 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.
“Given this complexity, both parties agreed to pursue a more peaceful resolution to the matter that satisfied both our economic and sovereign rights,” he added.
In a separate statement, the Palace official also dismissed Carpio’s remarks accusing Duterte of giving China a green light to perform reclamation activities in the disputed waters.
Abella told Carpio that China’s reclamation activities have been going on for years, before Duterte assumed office.
Carpio, in a speech in Makati City on Thursday, said China is assuming that Duterte is allowing it to continue land reclamation in the contested waters, following his refusal to mention the issue in his Association of Southeast Asian Nation (Asean) chairman’s statement.
The final Asean chairman’s statement, which was revised several times, omitted a phrase citing the bloc’s “serious concerns” over reclamation and militarization activities of the Chinese government in the South China Sea.
“The President was responsible for the chairman’s statement [but made]no mention of reclamation or militarization. For the Chinese, this is a green light,” Carpio said.
But the Palace official said Duterte was employing “two-track strategy” in dealing with the maritime dispute.
“President Rodrigo R. Duterte maintains a two-track approach to our relationship with [China]; one, to grow our healthy economic, trade and investment relationships, and to ensure that our arbitral rights in the WPS (West Philippine Sea) are not compromised, more so now through the newly established bilateral consultation mechanism to manage disputes in the area,” Abella said.
“The disputes in the South China Sea/West Philippine Sea are not the sum total of our relations with China, but we are cognizant of the warmer relationships we have in the region,” he added.
The two countries held bilateral consultations on the South China Sea dispute last Friday, in a bid to address the territorial row. Officials will meet again in Manila later this year.