GUILENG, Marie Antoneitte Lyka V.
Constitutional Law I
JD 1B Atty. Mary Ellen Cabuhat
Position Paper on Government’s Response/Action to the South China Sea Arbitral Award
Involving the Philippines and China
"Nag-file sila ng kaso nanalo tayo... Sa totoong buhay, between nation, 'yang papel wala
iyan... Actually... bigay mo sakin iyan sabihin ko 'P*t*ng-ina papel lang iyan'. Itatapon ko iyan
sa waste basket," - President Duterte during his May 6, 2021, late night address
Above was the verbatim statement uttered by his excellency, President Rodrigo Roa Duterte
regarding the Permanent Court of Arbitration (PCA) Ruling which the Philippines has won in
July 2016. The President’s stand regarding the South China Sea issue was clear during
recorded late-night addresses that were usually aired on television where the President
seems to have turned every listener’s ear as waste bins for his incomprehensible and not
well thought out statements. This will be later translated or explained by his presidential
spokesperson. With his incessant hurling of insults and retracting statements, I am deeply
saddened that the highest official of the land doesn’t seem to give importance to our national
territory.
According to retired Associate Justice Antonio Carpio, there are five ways for the Philippines
to defend the West Philippine Sea (WPS).(1) First is to withdraw the authorization for Chinese
fishermen to fish in Recto Bank, a fully Exclusive Economic Zone (EEZ) of Philippines, which
the President entered into an agreement with the Chinese President where in return, the
naval power would no longer block Filipino fishermen from accessing Scarborough or
Panatag Shoal, a traditional fishing ground in Zambales. For me, the reason for permitting
Chinese fishermen to fish in our territory is irrational. The PCA has ruled in paragraph 814,
page 318(2), that it is unlawful for China to prevent Filipinos to fish in those waters. Why
would the government give permission to Chinese fishermen to fish in our waters so that
they can in return permit Filipinos to fish in waters we are really entitled to? It is like giving
them an additional right/benefit wherein the other benefit was not their right in the first place.
Second, the President should retract his statements that China is in possession of the WPS.
It will discourage contractors from performing their obligations under the service contract
with the Philippine government on the oil explorations since Recto Bank should replace
Malampaya gas field which will expectedly run out in three to four years. In my
understanding, there will be a possible intervention from China during the performance of
service of the contractor because of their presence.
Third, the Philippines can join freedom of navigation exercises conducted by the US in the
WPS. According to Carpio, freedom of navigation operations (FONOPs) represents the
strongest enforcement of the arbitral award because they demonstrate to China and the rest
of the world that in the West Philippine Sea, there is an exclusive economic zone of a
coastal state. Fourth, the Philippines can conduct joint patrols with Vietnam, Malaysia,
Indonesia and Brunei in each other’s EEZ. The joint patrols are peaceful and lawful
exercises of sovereign rights and are allowed under the United Nations Convention of the
Law of the Sea to protect a coastal state’s exclusive right to the living and nonliving
resources within its EEZ. Truly, presence of the Philippines on our territorial right would
exude sense of ownership.
Finally, the Philippines can file a 150 nautical mile extended continental shelf claim of the
coast of Luzon facing the WPS with the UN Commission on the Limits of the Continental
Shelf. The Philippines can file this extended continental shelf claim unilaterally, just like the
extended continental shelf claim that we filed in Benham Rise or Philippine Rise facing the
Pacific Ocean. Filing such a claim, Caprio said, "asserts the existence of a Philippine [EEZ]
in the West Philippine Sea and asserts by state practice the arbitral award."
These laid down remedies stated by former SC justice are peaceful ways on how we can
assert our rights contrary to the statements of the President that “we cannot go to war”. The
country may not be in this grave position if his initial actions and statements are not towards
favoring China. The government should always uphold the rights of its country and stand in
dignity to enforce the binding decisions of the PCA that China has also signed.
Recent reports(3) showed aerial photographs that China continues to construct military and
industrial outposts on artificial islands it has built along the reefs of South China Sea wherein
such reef was also ruled by UN-backed PCA in the Hague as belonging to the Philippines. It
is believed that the construction started or has the most construction done in 2017, in which
President Duterte also started showing extremely warm friendship towards China.
This issue of ownership of the South China Sea is not only for the purpose of claiming
territoriality under our Constitution and International Law, but the managing and ownership of
resources that lies in it. The South China Sea, such as Spratlys Islands, possesses rich
natural resources and fishing areas that would greatly benefit the country in provision of
cheap energy and oil as well as fishing livelihood of the country’s noble fishermen. It is worth
noting that a lot of reports with proof that China harassed Filipino fishermen and fishing
boats(4) and it should be one of the focus of the executive department through negotiations
and stricter patrol around our waters. The government has a duty to protect its citizens and
create an environment wherein its citizens should freely fish and reap the benefits of the
result of territorial ownership.
Footnotes:
(1) [Link]
carpio-lists-5-ways-defend-west-philippine-sea
(2) [Link]
(c) Conclusion
814. Based on the considerations outlined above, the Tribunal finds that China has,
through the operation of its official vessels at Scarborough Shoal from May 2012
onwards, unlawfully prevented Filipino fishermen from engaging in traditional fishing
at Scarborough Shoal. The Tribunal records that this decision is entirely without
prejudice to the question of sovereignty over Scarborough Shoal.
(3) [Link]
(4) [Link]
scarborough-shoal-us-navy-official
