MANILA, Philippines – President Rodrigo Duterte in his State of the Nation Address (SONA) on Monday said the Philippines is “not in the position” to assert its rights in the West Philippine Sea (WPS) because China “is in possession” of it.
Wrong, said Supreme Court Senior Associate Justice Antonio Carpio.
“China is not in possession of the WPS. China is in possession of 7 features in the Spratlys plus Scarborough Shoal. In addition, during the Duterte administration, China seized Sandy Cay from the Philippines. The total area of these geologic features, including their territorial seas (if any), is less than 7% of the WPS,” Carpio said in a statement sent to reporters after the SONA on July 22.
China has reclaimed and built military installations on the following reefs in the West Philippine Sea: Kagitingan (Fiery Cross), Calderon (Cuarteron), Mabini (Johnson South), Zamora (Subi), McKennan (Hughes), Panganiban (Mischief), and Burgos (Gaven).
These were declared to be either rocks or low tide elevations within the Philippines’ 200-nautical-mile exclusive economic zone (EEZ) by the July 12, 2016 international arbitral award based on the United Nations Convention on the law of the Sea (UNCLOS).
Rocks and low tide elevations do not entitle the country that owns them to an EEZ. In effect, even if sovereignty over those 7 reefs remains unresolved, the Philippines retains sovereign rights in the vast waters of the West Philippine Sea.
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This is evidenced by the fact that other countries carry out “freedom of navigation and overflight operations” (FONOPs) in the area, said Carpio.
“Foreign naval powers (US, UK, France, Australia, Japan, and Canada) continuously sail and conduct naval drills in the South China Sea, including the WPS, demonstrating that China is not in possession of the WPS,” he said.
Carpio earlier said that it would help the Philippines assert its legal victory over China if the Philippine Navy joined these other navies on FONOPs in the West Philippine Sea.
Duterte has consistently rejected the idea, saying it would lead to war with China.
“I am not ready or inclined to accept the occurrence of more destruction, more widows and more orphans, should war, even on a limited scale, break out. More and better results can be reached in the privacy of a conference room than in a squabble in public,” Duterte said in his SONA.
However, critics including Carpio have pointed out that the possibility of war is remote because China itself would not risk its standing in the international community were it to turn into an aggressor. Besides, the Philippines’ Mutual Defense Treaty with the US would come into force, and China would think twice before triggering an armed confrontation with the US.
In his SONA, Duterte tried to justify allowing Chinese fishing vessels free rein in the WPS. He said the UNCLOS allows for fishing agreements among sovereign states, and recognizes “traditional fishing rights of the natives.”
Carpio refuted this, too.
“Traditional fishing applies only in the territorial sea and archipelagic waters. There is no traditional fishing in the EEZ. This is very clear in the arbitral award of 12 July 2016. Reed Bank is part of Philippine EEZ. There can be no traditional fishing in Reed Bank,” Carpio said, referring to the incident on June 9 in which a Chinese ship – a trawler – hit a Philippine fishing boat and abandoned its 22 Filipino crew at sea.
The Filipino boat, the Gem-Ver, foundered at the impact from the larger, sturdier vessel.
“Traditional fishing is artisanal fishing using small, simple fishing boats like the wooden boats, with outriggers, of Filipino fishermen. The Chinese steel-hulled trawlers cannot qualify for traditional fishing,” said Carpio.