How the Philippines Can Enforce Its Arbitral Award without Going to War with China

By Marcial Bonifacio

August 31, 2020

My friends and countrymen, as we observe National Heroes' Day on August 31, 2020, it is most appropriate to contemplate our country’s sovereignty, which includes maritime rights.  Throughout his term, President Rodrigo Duterte has repeatedly expressed the false notion that China is “in possession” of the West Philippine Sea (WPS) and that the Philippines is powerless to assert its sovereign rights therein, short of waging war with China, the latest declaration having been made in his last State of the Nation Address on July 27.  Consequently, every time he does so, his critics persistently rebut him, particularly the astute Supreme Court Justice Antonio Carpio, who was instrumental in the favorable 2016 ruling of the Permanent Court of Arbitration (PCA) on the WPS.

In my “Open Letter to President Duterte” and “Why Filipinos Should Give a Damn about Panatag Shoal,” I have presented some of Carpio’s advice on how the Philippines can, indeed, enforce its arbitral award without waging war with China, some of which I have likewise enumerated below.  Some of them are Carpio’s direct response to Duterte upon publicly asking him what action to undertake, as in the following dialogue:

“Xi Jinping [said] there will be trouble,” stated Duterte, “so answer me, Justice, give me the formula and I’ll do it.”

“My response is yes, Mr. President, there is a formula,” replied Carpio, “and not only one but many ways of enforcing the arbitral award without going to war with China, using only the rule of law.”

Without further ado, I present those options which Carpio stated should be implemented “together to fortify the award part by part, brick by brick, until the award is fully enforced.”

• The Philippines can join a convention with Vietnam, Malaysia, Indonesia, and Brunei regarding the South China Sea.  The convention can 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 PCA.  According to Carpio, China will be "isolated" as the only country claiming EEZs from the Spratly Islands.  Countries that assert freedom of navigation and overflight in the South China Sea are also expected to follow such a convention, he added.
• The Philippines can invite Vietnam, Malaysia, Indonesia, and Brunei to conduct joint FONOPs in respective EEZs facing the West Philippine Sea.  "This will be a common assertion by 5 coastal states that each of them have their own respective EEZs in South China Sea thereby enforcing the arbitral award that China's 9-dash line has no legal effect and cannot serve as basis to claim the waters of the South China Sea," Carpio said.  By conducting joint FONOPs, it will also affirm the EEZ of the Philippines in the West Philippine Sea.  Carpio said that while the Philippines should welcome and join these operations, it has instead distanced the country from them, saying the Philippines "does not take sides" in disputes between China and other countries in the area, a seemingly treacherous gesture vis-à-vis the oldest and most loyal ally, the U.S.
• The Philippines can welcome and encourage the freedom of navigation and overflight operations (FONOPs) of the U.S., U.K., France, Australia, Japan, India and Canada in the South China Sea, including the West Philippine Sea. The naval and aerial operations of these naval powers, which are in conformity with UNCLOS and customary international law, have increased in frequency since the 2016 PCA award, and are what Carpio describes as the “most robust enforcement” of the arbitral award, bridging the gap between the rule of law and the rule of justice.
• The Philippines can persuade the U.S. to declare Panatag Shoal as part of Philippine territory, which would protect it under the 1951 Philippine-U.S. Mutual Defense Treaty (MDT).  Such action would add clarity for legal ramifications, since the shoal was known to be under Philippine jurisdiction as early as the American colonial period and even under Spanish rule.  The Japanese did precisely that with their Senkaku islands, which the U.S. declared as part of Japan’s territory for purposes of the U.S.-Japan Mutual Defense Treaty.
• The Philippines could send the Philippine Navy to patrol Panatag Shoal.  “As the South China Sea is part of the Pacific,” stated U.S. State Sec. Mike Pompeo, “any armed attack on any Philippine forces, aircraft, or public vessels in the South China Sea will trigger mutual defense treaty obligations under Article 4 of our Mutual Defense Treaty.”  Of course, that would prompt the U.S. Navy to intervene.
• The Philippines can resume joint naval patrols with the U.S. in the West Philippine Sea in order to project military might, which could deter China from continuing its island-building activity on Panatag Shoal.
• The Philippine Coast Guard can send its ten 44-meter multi-role response vessels that were donated by Japan to patrol the West Philippine Sea.  These vessels, Carpio said, are ideal for patrolling and catching poachers in the Philippines' EEZ in the West Philippine Sea. Doing so will also assert the country's sovereign rights in the maritime area.
• Congress can enact legislation to make permanent the Enhanced Defense Cooperation Agreement (EDCA) and the Visiting Forces Agreement (VFA).  Indeed, the MDT would be rendered obsolete without either of them as elucidated by Foreign Affairs Sec. Teodoro Locsin:

The Mutual Defense Treaty without the VFA and EDCA may be compared to a deflated balloon. For all practical purposes, it becomes an extra large rubber for an Asian. Far more elastic than he can ever need for its purpose and far more suitable as a shower cap than a prophylactic against foreign aggression.

Aside from the two treaties giving teeth to the MDT, making them permanent would revitalize and fortify America’s alliance with the Philippines while deterring China and other potential aggressors, as well as quelling terrorist threats.

• The Philippines can emulate America’s foreign policy of imposing visa restrictions on all persons and business entities which Pompeo characterizes as “responsible for, or complicit in, either the large-scale reclamation, construction, or militarization of disputed outposts in the South China Sea, or [the People’s Republic of China’s] use of coercion against Southeast Asian claimants to inhibit their access to offshore resources.”
• The Philippines can terminate contracts with Chinese firms which are, in any way, involved in reclamation and militarization activities in the WPS.  In fact, Locsin has already publicly said he would make such a recommendation to the appropriate agencies.
• The Philippines can file an extended continental shelf claim in the West Philippine Sea beyond the 200-nautical mile EEZ off the coast of Luzon, where China is the only opposite coastal state. The Philippines can file this unilaterally with the UN Commission on the Limits of the Continental Shelf. China cannot invoke historic rights under its nine-dash line claim which has already been ruled without legal effect by the PCA. China’s own extended continental shelf does not overlap with the extended continental shelf of the Philippines in this maritime area.
• The Philippines can “bring China’s threat of war to another United Nations Convention on the Law of the Sea (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 that the “Philippines can also ask for damages for every day of delay that the Philippines is prevented by China from exploiting Philippine EEZ.”
• The Philippines can facilitate efforts of active citizens to enforce the arbitral award.  Carpio referred to the case filed by former Foreign Affairs Secretary Albert del Rosario and former Ombudsman Conchita Carpio Morales against Chinese President Xi Jinping before the International Criminal Court. The complaint accused Xi of crimes against humanity over environmental damage in the South China Sea.
• According to Senator Richard Gordon, the National Security Council can regularly convene and collaborate with a think tank paneled by foreign policy and defense experts.  Such regular meetings could keep the Philippines prepared for various contingencies.  “Alam naman natin na there is always contention in that area,” stated Gordon, “kaya dapat nakahanda tayo kung ano ang mangyayari diyan.”
• The Department of Foreign Affairs (DFA) can and should immediately issue a clarification that China is in fact not in possession, and legally can never be in possession, of the WPS.  According to Carpio, the international law doctrine of unilateral declarations can bind the Philippines to Duterte’s statement about China’s alleged possession of the WPS, whereby China can claim the Philippines has forfeited its sovereign rights.  Hence, clarification from the DFA is essential.
• The Senate and the House of Representatives can pass resolutions declaring that China is not in possession of the WPS.
• All professional, civic, social, political, student, and alumni organizations, and all Filipino citizens, can and should overwhelm Malacañang with statements and text messages: China is not, and will never be, in possession of the WPS.

In conclusion, my friends and countrymen, lest the Philippines becomes “a province of China,” we can and must assert our sovereign rights in the WPS, regardless of Duterte’s rhetoric.  In the authoritative words of Carpio, “The Filipino people should not be intimidated by national leaders who peddle a false option that either we go to war with China or submit to China. This false option should be discredited once and for all. . . We cannot adopt a defeatist attitude and just sit idly by and let China seize what international law has declared to be our own Exclusive Economic Zone. . . This is the moment for all Filipinos to unite in defense of Philippine sovereign rights in the WPS.”

Mabuhay ang Pilipinas!