Brunei Darussalam

An alternative to defeatist attitude on the West Philippine Sea



Dr. Florangel Rosario Braid

Dr. Florangel Rosario Braid

A worrisome concern expressed by Supreme Court Senior Associate Justice Antonio Carpio is the possibility that the President may bring up the issue of allowing Chinese fishermen to fish in Recto Bank during the forthcoming State of the Nation (SONA) address. This was agreed upon earlier with Chinese President Jinping as long as our Filipino fishermen are allowed to fish in Panatag Shoal. While we can get out of a verbal agreement, it would, however, become  binding if mentioned in the State of the Nation Address. It will be remembered that the President said, he hopes “to educate” viewers on his position regarding the country’s exclusive economic zones. Let’s not therefore forget to add this in our weekend prayers.

Thus, we must continue  to seek an alternative to what Justice Carpio describes as a “defeatist attitude” on the West Philippine Sea.

In a recent speech, he suggests viable solutions, a response to the question raised by Paul Reichler, the Philippines’ lead counsel against China who asked, “How do you get a big and powerful state to comply with its obligation, especially if you are a much smaller and less powerful state?” He answers this by saying that the Philippines can make China comply with The Hague ruling only by joining forces with other countries.

Justice Carpio explains these six solutions which require enforcing UNCLOS and the Hague ruling, rather than settling on a false option – that China might wage war on us if we continue to pursue our claim.

  1. Enter into a convention with Vietnam, Malaysia, Indonesia, and Brunei on the South China Sea. Declare that no geologic feature in the Spratly Islands generates an exclusive economic zone (EEZ) and that there are only territorial seas from the geologic features that are above water at high tide as ruled by the arbitral tribunal. This will leave China “isolated” as the only country claiming EEZs from the Spratly Islands. Countries that assert freedom of navigation and overflight in the SCS (FONOPS) are expected to follow such a convention.
  2. Send the Philippine Coast Guards’ new 44-meter multi role response vessels that were donated by Japan to patrol the WPS. These vessels are ideal for patrolling and catching poachers. Doing so will assert the country’s sovereign rights in the maritime area.
  3. Welcome and encourage freedom of navigation and overflight operations (FONOPS) of naval powers – US, UK, France, Australia, Japan, and Canada – in the South China Sea, including the West Philippine Sea.
  4. Send the Philippine Navy to join FONOPS of foreign naval powers to assert the country’s EEZ in the WPS.
  5. Invite Vietnam, Malaysia, Indonesia, and Brunei to conduct joint FONOPS in respective EEZs facing the WPS. This common assertion by five coastal states that each of them has its own EEZ in the South China Sea will reinforce the basis of the arbitral award – that China’s nine-dash line has no legal effect and therefore cannot serve as basis to claim the waters of the SCS. By conducting joint FONOPS, it will affirm the EEZ of the Philippines in the WPS. While the Philippines should welcome and join these operations, it has instead distanced the country from them, i.e., that it does not take sides in disputes between China and other countries in the area.
  6. Support private efforts to enforce the arbitral ruling. This refers to the case filed by former Foreign Secretary Albert del Rosario and former Ombudsman Conchita Carpio Morales against Chinese President Xi Jinping before the International Criminal Court.

Justice Carpio refutes President Duterte’s repeated claim that China might wage war on the Philippines if it enforces its rights in the WPS. He urges the Duterte administration to undertake the solutions, “part by part, brick by brick until the award is finally enforced.”

As Justice Carpio notes, agreement will be just a first step in a course of action that could take time. It may even take generations before what is envisioned can finally be achieved. But it would require considerable faith, trust, and the will to  cooperate – not only among people from the five ASEAN states with the greatest stake, but also among countries  whose participation in the  freedom of navigation and overflight operations will be expected.

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