3 possible scenarios as PHL awaits resolution of arbitration case vs China – Justice Carpio

By , on April 9, 2016


Associate Justice Antonio Carpio (Photo from the Supreme Court's website)
Associate Justice Antonio Carpio (Photo from the Supreme Court’s website)

MANILA – Three possible scenarios were detailed by Associate Justice Antonio Carpio as the Philippines awaits the resolution of its case questioning China’s Nine-Dash Line.

The case is now being handled by the UN Permanent Court of Arbitration which is based in The Hague, Netherlands.

In the first scenario, the Tribunal declares the Nine-Dash Line void; Scarborough Shoal generates only a territorial sea which is a traditional fishing ground of Filipino fishermen and the Tribunal does not rule on all other issues.

Possible ramifications of this ruling means that in the northern sector, the Philippines has full 200 nautical mile exclusive economic zone (EEZ) except for territorial sea of Scarborough Shoal; Filipino fishermen can exclusively fish within this EEZ; within territorial sea of Scarborough Shoal, Filipino fishermen can also fish together with Chinese fishermen;

In the southern sector, China/Taiwan can still claim that Itu Aba generates an EEZ that overlaps with Palawan’s EEZ; in the southern sector, the legal dispute continues in the maritime zone within 200 nautical mile around Itu Aba, which includes a small part of Reed Bank;

Maritime space under legal dispute between the Philippines and China is drastically reduced from over 531,000 square kilometers to only about 23,000 square kilometers(excluding the territorial seas of the disputed islands); freedom of navigation and freedom of over-flight, outside the territorial sea and territorial airspace, in the South China Sea are reinforced.

But Carpio said China is not expected to comply with Tribunal’s ruling unless there is a strong world opinion that forces her to comply, and the Chinese people realize their historic claim has no basis.

To offset this, the magistrate said the Philippines can file a new arbitration case specifically raising as issue that Itu Aba does not generate an EEZ, and seeking confirmation of features identified as LTEs (low tide elevations);

Encourage Vietnam and Malaysia to join the arbitration;

Make an educational/media campaign worldwide that the Nine-Dash Line cannot be the source of maritime claims per ruling of the Tribunal;

Diplomatic campaign in the UN/ASEAN/EU/worldwide to demand that China comply with the Tribunal’s ruling and abandon the Nine-Dash Line as a claim to maritime zones; cite Taiwan’s position;

Seek formal declaration with Vietnam, Malaysia and Brunei that none of the islands/high tide elevations in the Spratlys generate an EEZ;

Delimit with Malaysia the EEZ/ECS boundary in the southern sector; delimitation will not affect the Sabah claim;

Delimit with Vietnam the ECS boundary in the southern sector.

While the second scenario, which Carpio calls the best for the Philippines, the Tribunal declares the Nine-Dash-Line void; Itu Aba does not generate an EEZ; confirms the status of LTEs identified by the Philippines; Scarborough Shoal generates only a territorial sea which is a traditional fishing ground of Filipino fishermen.

Ramifications for these include in the northern sector, the Philippines has a full 200 nautical EEZ excluding the territorial sea of Scarborough Shoal; Filipino fishermen can exclusively fish within this EEZ; within the territorial sea of Scarborough Shoal, Filipino fishermen can also fish together with Chinese fishermen;

In the Southern sector, Palawan has a full 200 nautical mile EEZ, excluding the territorial seas around the islands/high tide elevations in the Spratlys;

LTEs within the Philippines EEZ, like Mischief Reef, and LTEs within Philippines ECS (extended continental shelf), like Subi Reef, form part of the country’s submerged continental shelf; and only the nation can erect structures on such LTEs;

Maritime space under dispute between the Philippines and China is reduced from over 531,000 square kilometers to just about 1,551 square kilometers of territorial sea around every Spratly island/high tide elevation and Scarborough Shoal;

China is not expected to comply with the Tribunal’s ruling unless there is a strong world opinion that forces China to comply, and the Chinese people realize their historic claim has no basis.

To preserve the Philippine advantage, Carpio said the country should still conduct educational/media campaign worldwide stressing that the Nine-Dash-Line cannot be a source of maritime claims per ruling of the Tribunal;

Diplomatic campaign in the UN/ASEAN/EU/worldwide to demand that China comply with the Tribunal’s ruling and abandon the Nine-Dash Line as a claim to maritime zones; cite Taiwan’s position;

Delimit with Malaysia the EEZ/ECS boundary in the Southern sector; the Sabah claim is not affected;

Delimit with Vietnam the ECS boundary in the Southern sector.

While scenario three, which is the worse case for the Philippines, is that the Tribunal does not rule on the validity of the Nine-Dash-Line; declares that Itu Aba generates an EEZ; Scarborough Shoal generates only a territorial sea; does not rule on other issues.

Consequences of this ruling is that China will enforce the Nine-Dash Line as its national boundaries; and this will result in the possible blocking and harassing of Philippine, Vietnamese, Malaysian efforts to supply the islands they occupy in the Spratlys; the legal dispute over the waters enclosed by the Nine-Dash Line continues;

Carpio said that the only defense coastal nations like the Philippines can offer against Chinese encroachment is to acquire warships, warplanes and missiles; naval arms race will accelerate;

This will also prompt the US and its allies will regularly conduct FONOPS (freedom of navigation operations in the South China Sea/Spratlys;

However, this is will force China oppose FONOPS, creating more tension.

Maritime space under dispute will remain over 531,000 square kilometers.

Carpio added that with these developments, the Philippines must strengthen substantially its military defenses and alliances;

Invite Vietnam, Malaysia and Brunei to sign an international conventiondeclaring the Spratlys an International Marine Protected Area (enclosing the Spratlys up to 12 nautical miles from the outermost islands/high tide elevations);

Invite also China to join; open the convention to accession by other states and by non-state parties so Taiwan and NGOs can also join;

Seek formal declaration with Vietnam, Malaysia and Brunei that none of the islands/high tide elevations in the Spratlys generates an EEZ;

Delimit with Malaysia the EEZ/ECS boundary in the Southern sector; Sabah claim is not affected;

Delimit with Vietnam the ECS boundary in the Southern sector.