How to enforce the PCA ruling

The landmark ruling of the Permanent Court of Arbitration (PCA) in favor of the Philippines over its maritime entitlements in the South China Sea, or more specifically, the West Philippine Sea, celebrated its first anniversary.

The ruling is considered landmark because it sets a historic precedent in international law with a pronouncement that historical right does not exist under the Constitution of the Oceans, or the United Nations Convention on the Law of the Sea (Unclos). In simple terms, it means that China cannot claim the entire breadth of the South China Sea part of its maritime territory based on historical right under the so-called “nine-dash-line,” which basically makes the South China Sea a Chinese lake.
Unlike domestic judgment, a decision of an international tribunal is difficult to enforce because it has no enforcement apparatus. At best, the prevailing state party could take resort to the United Nations which could direct the Security Council to enforce the decision. Since China is a permanent member of the Security Council with veto power, however, the enforcement of the PCA ruling by the UN through the Security Council will be zilch.

A more meaningful enforcement of the landmark ruling would be the full exercise of sovereign rights by the Philippines over its Exclusive Economic Zone (EEZ), a
200-nautical-mile seaward distance from the territorial sea baseline, in the West Philippine Sea. If Philippine luck could be pushed further, it may also exercise sovereign rights over its Extended Continental Shelf (ECS).

The continental shelf is the seabed and subsoil of submarine areas beyond the territorial sea throughout the natural prolongation of the land territory to the outer edge of the continental margin. The territorial sea consists of that portion of the coastal sea within a 12-nautical-mile seaward distance from the low water mark, while the ECS is a 150-nautical-mile seaward distance from the margin of the EEZ.

A littoral state like the Philippines has rights of sovereignty over the territorial sea, sovereign rights over the water column, seabed, and subsoil of the EEZ, and the seabed and subsoil of the ECS. The exercise of Philippine sovereign rights in the EEZ and ECS has the full backing of the Unclos and the PCA ruling.

The Philippine EEZ in the West Philippine Sea sits on vast potential fields of oil and natural gas. The exploration and
exploitation of these natural resources is well within the sovereign rights of the Philippines.

The 1987 Constitution limits the exploitation of natural resources to Filipino citizens, but a financial and technical assistance agreement paved the way for a Dutch company to exploit natural gas in Malampaya off the coast of Palawan. The Constitution does not prohibit state-sponsored exploration because nationality is an attribute of persons but not a state.

China and the Philippines can do joint exploration within the Philippine EEZ provided China will acknowledge Philippine sovereign rights over its EEZ. This scenario would be foolhardy for China because it will amount to an acceptance of the PCA ruling. Thus, China has to impose a tax on a joint exploration; an unacceptable proposition for the Philippines because it will amount to surrendering its EEZ to Chinese sovereignty.

The logical recourse of the Philippines to exercise its sovereign rights over its EEZ is joint exploration with the United States and Japan. The United States has deep-sea technology for the exploration and the military might to protect it; while Japan has the financial wherewithal to bankroll the exploration, and demand for natural gas.

China will not go to war with the Philippines if it does the joint exploration, a legitimate state activity. Otherwise, it will pit China against the whole world even as the UN Charter prohibits war of aggression.

Frank E. Lobrigo practiced law for 20 years. He is a law lecturer and JSD student at San Beda College Graduate School of Law in Manila.