Impossible ‘non-war’ options

Justice Antonio Carpio has long criticized the Duterte administration’s approach to the dispute with China over the West Philippine Sea. Recently, he gave the President options for handling the dispute. While I question the propriety of a Justice of the Supreme Court intruding into foreign policy — a prerogative of the executive — let us nonetheless examine his suggestions.

First, he suggests that we should conclude a treaty with our neighbors recognizing that none of the claimant states to the West Philippines Sea will recognize that any of the disputed features can generate an exclusive economic zone (EEZ). Under the United Nations Convention on the Law of the Sea (Unclos), only islands that can sustain human habitation can generate a 200-nautical-mile exclusive economic zone. The Permanent Court of Arbitration Tribunal Panel in Philippines v. China ruled that none of the disputed features are islands that can generate EEZs.

The problem with this suggestion is that none of the claimant states in the dispute will concede that their reclaimed features are not islands under the Unclos. Even the Philippines has not conceded that Ayungin Shoal and Rizal Reef, both low-tide elevations, are not islands. It is improbable that the Philippines will concede that Panatag is not an island, even if only rocks are above water in the area. All of the claimants, excepting the Philippines and Taiwan, possess only low-tide elevations that they have reclaimed. Hence, it is highly unlikely that any of them will concede that their claimed features are only part of their EEZ.

Second, he suggests we file a claim for an extended continental shelf. This would be possible were it not for the fact that the deadline to do so has long expired, on May 12, 2009. The initiative to prepare the technical data for this was actually a project of the University of the Philippines Institute for International Legal Studies, which I headed in the past. The project identified three areas for filing: in Benham Rise, which has been awarded to us, as well as in Panatag, and in Kalayaan. It was our recommendation to file for all three before the stipulated deadline. The Philippine government filed only for Benham.

In any case, Justice Carpio’s suggestion, even without the deadline, is rendered nugatory by the rule that the United Nations Commission on the Limits of the Continental Shelf will not act on submissions where there is an ongoing territorial dispute. Hence, the filing, even if allowed, will not prosper.

Justice Carpio then advised supporting freedom of navigation voyages currently being conducted by other states. While we have not expressly participated in these voyages, we have already been conducting joint military exercises with the United States pursuant to the Visiting Forces Agreement in areas near the disputed waters, which achieve the same objective. In other words, the suggestion is a superfluity.

Justice Carpio then suggested the deployment of recently acquired vessels from Japan to patrol our EEZ. To begin with, it is the Duterte administration that acquired these vessels. It is also this administration that recently ordered for our first two missile-capable vessels. These vessels will be used to patrol our EEZ and territorial seas. Certainly, President Duterte has already been doing what Justice Carpio has suggested. What is clear is that the Duterte administration recognizes that defense of our territory can only be achieved with a modern navy and coast guard, hence the priority accorded the modernization of our armed forces.

Finally, he urges supporting private initiatives such as the filing of charges with the International Criminal Court (ICC). The problem is, the ICC can’t acquire jurisdiction over a non-member state in the absence of a referral from the UN Security Council. It does not help any that while we assume the disputed waters of the West Philippine Sea as largely comprising our EEZ, it is subject only to sovereign rights and not sovereignty. I doubt if the ICC will take cognizance of any case arising from a dispute over the EEZ, since areas subject to sovereign rights do not form part of “territory” under the Rome statute.

All told, Justice Carpio’s “non-war” options are hardly viable, or are suggestions that are already being done by the Duterte administration.

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Harry L. Roque Jr. served as presidential spokesperson for President Rodrigo Duterte from October 2017 to October 2018 and is president of the Asian Society of International Law. He taught Public International Law and Constitutional Law in the University of the Philippines College of Law for 15 years before being elected to the House of Representatives in 2016.