Carpio: PHL should appeal China’s 9-dash Rule to ‘world opinion’

By Mark Merueñas 
GMA News

Supreme Court Senior Associate Justice Antonio Carpio has said that even if the Philippines wins in the arbitral dispute it has lodged against China on the West Philippine Sea, the decision would most likely go unenforced.

In a speech he delivered before graduating law students of the Pamantasan ng Lungsod ng Maynila, Carpio noted that under the United Nations Charter, a winning state in a decision by the International Court of Justice can ask the Security Council to enforce the decision.

“However, UNCLOS does not not provide any enforcement mechanism for decision of the International Tribunal on the Law of the Sea (ITLOS) or the arbitral tribunals created under the UNCLOS,” he said.

Carpio added that even for decisions of the ICJ, the Security Council can only act so long as none of the five permanent members of the Security Council, which each has veto powers, opposes the implementation of the ICJ decision.

China is a permanent member of the Security Council and “will naturally veto any enforcement measure against itself,” Carpio noted.

Law of the Sea

The senior magistrate said China’s controversial “9-dash Rule” violated the United Nations Convention on the Law of the Sea (UNCLOS), to which China and the Philippines are signatories.

The nine-dash-line is a map showing a U-shaped line enclosing almost the whole of the South China Sea which China claims belongs to them. The map has been widely protested by several countries including the Philippines and criticized in the international community.

Carpio noted how the absence of an enforcement mechanism in ITLOS decisions creates a “gap in the Rule of Law where there is a Law but there is no justice… where the Rules of Law falls into a black hole.”

Carpio said the Philippines’ “remaining recourse” was to appeal to “world opinion,” which he described as the “defining force in enforcing arbitral decisions that fall into the legal black hole due to the absence of effective international enforcement mechanisms.”

He urged the the public to help in shaping a world opinion that countries should follow the Rule of Law if they want to be accepted as a member and leader of the “community of civilized nations.”

“If a nation refuses to comply with the Rule of Law, then it becomes a rogue nation, an outcast in the community of civilized nations where adherence to the Rule of Law is the norm,” Carpio said.

The senior magistrate noted that nations that are signatories to the UNCLOS are obligated to “align its domestic laws with UNCLOS.”

He noted how the Philippines “scrupulously followed the UNCLOS” in adopting the 2009 Baselines Law.

“As ponente of the Supreme Court decision that unanimously affirmed the constitutionality of the Baselines Law, I stated that the strict observance by the Philippines of UNCLOS in enacting the Baselines Law ‘manifests the Philippine State’s responsible observance of its pacta sunt servanda obligation under UNCLOS,’” Carpio said.

“Thus, the Philippines comes to the arbitral tribunal with clean hands.” he added.

Carpio said that China’s 1998 Law on Exclusive Economic Zone and Continental Shelf, on the other hand, claims “historic rights” to all geologic formations in the South China Sea, whether above water or under water, in gross violation of UNCLOS.”

Carpio said that even if China had already opted out in 2006 from the compulsory dispute settlement mechanism of UNCLOS, China is still subject to compulsory conciliation.

“[And] If a member state refuses to take part in a compulsory arbitration or compulsory conciliation that the member state is under obligation to participate under UNCLOS, the arbitration or conciliation will nevertheless proceed and an award or finding can still be made,” Carpio further said.

“In the words of UNCLOS, absence of a party or failure to submit to such proceedings ‘shall not constitute a bar to the proceedings,’” he added. — ELR, GMA News