Franklin Roosvelt once said, “To reach port, we must sail. Sail, not tie at anchor. Sail, not drift.” But in the absence of enforcement mechanism in UNCLOS, how will the Philippines sail to assert its right against West Philippine Sea?
In 2016, the Permanent Court of Arbitration in The Hague invalidated China’s claim of sovereignty over South China Sea and ruled in favor of the Philippines. However, during the bilateral talk of President Duterte with President Xi of People’s Republic of China last August 29, 2019, President Xi stands firm on its position in not recognizing the arbitral ruling. This current state relations of China and the Philippines poses a great controversy in international law. Questions such as the tribunal’s jurisdiction as well as its long arm power of enforcing a decision to the state-parties is presently put at stake when China refuses to adhere to the tribunal’s decision. As this struggle continues, principles of international relations and laws seems nugatory; that no matter how such ruling is valid and binding, if a party does not submit itself to the said ruling, the ruling is deemed useless. How can we really enforce the said arbitral ruling against China?
President Duterte believes that compelling China to comply with the arbitral ruling would only sever and disturb our relationship with China that will eventually lead to war. Hence, a negotiation must be done gradually —- this includes strengthening the Philippines-China relationship by allowing the Chinese fishermen to fish around the West Philippine Sea by virtue of traditional fishing and by entering into a Memorandum of Understanding of Joint Oil and Gas Exploration in the West Philippine Sea. However, these steps can be somehow construed as an opposition to the enforcement of arbitral ruling, that, instead of assertion, there is submission on our part to the power and authority of China.
The Philippines as the coastal state having sovereign right over West Philippine Sea, may grant fishing rights to China but this is only limited to our excess or surplus of marine resources, which is obviously not the case. Recent studies show that about 50% of fish in the West Philippine Sea are depleting, hence allowing the Chinese fishermen to fish without limitations would be unfavorable to our Filipino fishermen. With this, the Philippine government should not close its eyes on this fact since our Constitution guarantees their rights under Article XII, Section 2, par. 2 which provides that “the State shall protect the nation’s marine wealth in its archipelago waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.” Also, Articles 192 and 194 of UNCLOS set forth obligations not only in relation to activities directly taken by State and their organs but also in relation to ensuring activities within their jurisdiction and control do not harm the marine environment. It should be noted that as early as January 1988, Chinese fishermen were found in possession of corals and marine turtles from the West Philippine Sea, the Tribunal also found out that cyanide and blast fishing have been used in the Spratly Islands in the past decades. China have also made construction activities on Seven Reefs in the Spratly Islands that damaged 60% of the shallow reef habitat. With these facts, it is safe to say that China has contributed to the depletion of fish in the West Philippine Sea, and now we will still allow them to fish?
President Duterte also suggests to enter into a Memorandum of Understanding with China for Joint Oil and Gas Exploration. This is in fact highly plausible to encourage economic growth and general welfare of the country and which accordingly means that the Chinese government partly acknowledges that the Philippines have the ownership over the West Philippine Seas. For the past years, however, even after the arbitral ruling was rendered, the Chinese government have conducted economic and military activities over the West Philippine Seas. On the other end, to enter into another Joint Venture Agreement with China is tantamount to toleration and tolerance means submission. To borrow the words of Chief Justice Carpio, this is a “defeatist attitude”of the Philippine government.
Fortunately, the Philippines is not left empty handed in enforcing the arbitral ruling in the absence of enforcement mechanism under UNCLOS. The International Law expert Senior Associate Justice Carpio proposed an efficient and non-war ways to implement the Hague Ruling such as, among others, entering into a convention with Vietnam, Malaysia, Indonesia and Brunei regarding the South China Sea; sending the Philippine Coast Guard’s 10 new 44-meter multi-role response vessels that were donated by Japan to patrol over West Philippines Seas; welcoming and encouraging freedom of navigation and overflight operation (FONOPs) of naval powers like the United states, United Kingdom, Australia, India, Japan, and Canada in the South China Sea and West Philippine Seas; and, support private efforts to enforce the arbitral ruling. In sum, this basically means that the Philippines must adopt the multilateral approach in enforcing the arbitral ruling by joining forces with other States having the same interest and concerns as ours. This is a smart move for the Philippines knowing that China is undeniably a strong state to go against with. By all legal means in fact and in law, we have the right on such disputed territory. Indeed, war is never an option and enforcement on the arbitral ruling can still be done in a peaceful and diplomatic way. We should not lose our way by finding intimidation and threat. Be that as it may, the rights of the people should be the supreme consideration above all.
A well recognized maxim in International Law is par in parem non habet imperium or among equals, there can be no superior, unless of course, the other chose to act inferior. I hope the Philippines will not choose the latter.