Tag Archives: Antonio Carpio

How the Philippines Can Enforce Its Arbitral Award without Going to War with China

By Marcial Bonifacio

August 31, 2020

My friends and countrymen, as we observe National Heroes’ Day on August 31, 2020, it is most appropriate to contemplate our country’s sovereignty, which includes maritime rights.  Throughout his term, President Rodrigo Duterte has repeatedly expressed the false notion that China is “in possession” of the West Philippine Sea (WPS) and that the Philippines is powerless to assert its sovereign rights therein, short of waging war with China, the latest declaration having been made in his last State of the Nation Address on July 27.  Consequently, every time he does so, his critics persistently rebut him, particularly the astute Supreme Court Justice Antonio Carpio, who was instrumental in the favorable 2016 ruling of the Permanent Court of Arbitration (PCA) on the WPS.

In my “Open Letter to President Duterte” and “Why Filipinos Should Give a Damn about Panatag Shoal,” I have presented some of Carpio’s advice on how the Philippines can, indeed, enforce its arbitral award without waging war with China, some of which I have likewise enumerated below.  Some of them are Carpio’s direct response to Duterte upon publicly asking him what action to undertake, as in the following dialogue:

“Xi Jinping [said] there will be trouble,” stated Duterte, “so answer me, Justice, give me the formula and I’ll do it.”

“My response is yes, Mr. President, there is a formula,” replied Carpio, “and not only one but many ways of enforcing the arbitral award without going to war with China, using only the rule of law.”

Without further ado, I present those options which Carpio stated should be implemented “together to fortify the award part by part, brick by brick, until the award is fully enforced.”

  • The Philippines can join a convention with Vietnam, Malaysia, Indonesia, and Brunei regarding the South China Sea.  The convention can declare that no geologic feature in the Spratly Islands generates an exclusive economic zone (EEZ) and that there are only territorial seas from the geologic features that are above water at high tide, as ruled by the PCA.  According to Carpio, China will be “isolated” as the only country claiming EEZs from the Spratly Islands.  Countries that assert freedom of navigation and overflight in the South China Sea are also expected to follow such a convention, he added.
  • The Philippines can invite Vietnam, Malaysia, Indonesia, and Brunei to conduct joint FONOPs in respective EEZs facing the West Philippine Sea.  “This will be a common assertion by 5 coastal states that each of them have their own respective EEZs in South China Sea thereby enforcing the arbitral award that China’s 9-dash line has no legal effect and cannot serve as basis to claim the waters of the South China Sea,” Carpio said.  By conducting joint FONOPs, it will also affirm the EEZ of the Philippines in the West Philippine Sea.  Carpio said that while the Philippines should welcome and join these operations, it has instead distanced the country from them, saying the Philippines “does not take sides” in disputes between China and other countries in the area, a seemingly treacherous gesture vis-à-vis the oldest and most loyal ally, the U.S.
  • The Philippines can welcome and encourage the freedom of navigation and overflight operations (FONOPs) of the U.S., U.K., France, Australia, Japan, India and Canada in the South China Sea, including the West Philippine Sea. The naval and aerial operations of these naval powers, which are in conformity with UNCLOS and customary international law, have increased in frequency since the 2016 PCA award, and are what Carpio describes as the “most robust enforcement” of the arbitral award, bridging the gap between the rule of law and the rule of justice.
  • The Philippines can persuade the U.S. to declare Panatag Shoal as part of Philippine territory, which would protect it under the 1951 Philippine-U.S. Mutual Defense Treaty (MDT).  Such action would add clarity for legal ramifications, since the shoal was known to be under Philippine jurisdiction as early as the American colonial period and even under Spanish rule.  The Japanese did precisely that with their Senkaku islands, which the U.S. declared as part of Japan’s territory for purposes of the U.S.-Japan Mutual Defense Treaty.
  • The Philippines could send the Philippine Navy to patrol Panatag Shoal.  “As the South China Sea is part of the Pacific,” stated U.S. State Sec. Mike Pompeo, “any armed attack on any Philippine forces, aircraft, or public vessels in the South China Sea will trigger mutual defense treaty obligations under Article 4 of our Mutual Defense Treaty.”  Of course, that would prompt the U.S. Navy to intervene.
  • The Philippines can resume joint naval patrols with the U.S. in the West Philippine Sea in order to project military might, which could deter China from continuing its island-building activity on Panatag Shoal.
  • The Philippine Coast Guard can send its ten 44-meter multi-role response vessels that were donated by Japan to patrol the West Philippine Sea.  These vessels, Carpio said, are ideal for patrolling and catching poachers in the Philippines’ EEZ in the West Philippine Sea. Doing so will also assert the country’s sovereign rights in the maritime area.
  • Congress can enact legislation to make permanent the Enhanced Defense Cooperation Agreement (EDCA) and the Visiting Forces Agreement (VFA).  Indeed, the MDT would be rendered obsolete without either of them as elucidated by Foreign Affairs Sec. Teodoro Locsin:


The Mutual Defense Treaty without the VFA and EDCA may be compared to a deflated balloon. For all practical purposes, it becomes an extra large rubber for an Asian. Far more elastic than he can ever need for its purpose and far more suitable as a shower cap than a prophylactic against foreign aggression.

Aside from the two treaties giving teeth to the MDT, making them permanent would revitalize and fortify America’s alliance with the Philippines while deterring China and other potential aggressors, as well as quelling terrorist threats.

  • The Philippines can emulate America’s foreign policy of imposing visa restrictions on all persons and business entities which Pompeo characterizes as “responsible for, or complicit in, either the large-scale reclamation, construction, or militarization of disputed outposts in the South China Sea, or [the People’s Republic of China’s] use of coercion against Southeast Asian claimants to inhibit their access to offshore resources.”
  • The Philippines can terminate contracts with Chinese firms which are, in any way, involved in reclamation and militarization activities in the WPS.  In fact, Locsin has already publicly said he would make such a recommendation to the appropriate agencies.
  • The Philippines can file an extended continental shelf claim in the West Philippine Sea beyond the 200-nautical mile EEZ off the coast of Luzon, where China is the only opposite coastal state. The Philippines can file this unilaterally with the UN Commission on the Limits of the Continental Shelf. China cannot invoke historic rights under its nine-dash line claim which has already been ruled without legal effect by the PCA. China’s own extended continental shelf does not overlap with the extended continental shelf of the Philippines in this maritime area.
  • The Philippines can “bring China’s threat of war to another United Nations Convention on the Law of the Sea (UNCLOS) arbitral tribunal, to secure an order directing China to comply with the ruling of the UNCLOS arbitral tribunal that declared the Reed Bank part of Philippine EEZ.”  He added that the “Philippines can also ask for damages for every day of delay that the Philippines is prevented by China from exploiting Philippine EEZ.”
  • The Philippines can facilitate efforts of active citizens to enforce the arbitral award.  Carpio referred to the case filed by former Foreign Affairs Secretary Albert del Rosario and former Ombudsman Conchita Carpio Morales against Chinese President Xi Jinping before the International Criminal Court. The complaint accused Xi of crimes against humanity over environmental damage in the South China Sea.
  • According to Senator Richard Gordon, the National Security Council can regularly convene and collaborate with a think tank paneled by foreign policy and defense experts.  Such regular meetings could keep the Philippines prepared for various contingencies.  “Alam naman natin na there is always contention in that area,” stated Gordon, “kaya dapat nakahanda tayo kung ano ang mangyayari diyan.”
  • The Department of Foreign Affairs (DFA) can and should immediately issue a clarification that China is in fact not in possession, and legally can never be in possession, of the WPS.  According to Carpio, the international law doctrine of unilateral declarations can bind the Philippines to Duterte’s statement about China’s alleged possession of the WPS, whereby China can claim the Philippines has forfeited its sovereign rights.  Hence, clarification from the DFA is essential.
  • The Senate and the House of Representatives can pass resolutions declaring that China is not in possession of the WPS.
  • All professional, civic, social, political, student, and alumni organizations, and all Filipino citizens, can and should overwhelm Malacañang with statements and text messages: China is not, and will never be, in possession of the WPS.

In conclusion, my friends and countrymen, lest the Philippines becomes “a province of China,” we can and must assert our sovereign rights in the WPS, regardless of Duterte’s rhetoric.  In the authoritative words of Carpio, “The Filipino people should not be intimidated by national leaders who peddle a false option that either we go to war with China or submit to China. This false option should be discredited once and for all. . . We cannot adopt a defeatist attitude and just sit idly by and let China seize what international law has declared to be our own Exclusive Economic Zone. . . This is the moment for all Filipinos to unite in defense of Philippine sovereign rights in the WPS.”

Mabuhay ang Pilipinas!

An Open Letter to Pres. Duterte on Maute Terrorists & China’s War Threat

May 29, 2017

Dear President Rodrigo Roa Duterte:

I am writing you with the utmost respect and as a concerned citizen of the Philippines.  Like you, Mr. President, I only seek to serve the interests of our countrymen as well as protect the sovereignty of our country pursuant to the Constitution.  Therefore, I appeal that you keep an open mind and take no offense to my grievances and unsolicited recommendations.

Mr. President, many Marawi City residents have had their lives drastically disrupted and have been displaced as they have evacuated their homes, due to your declaration of martial law in Mindanao. Meanwhile, some foreign investors are losing confidence in the economy and the stability of the Philippine government as a result.  This may deter other potential investors and cost our country many current and potential jobs.  In fact, Philippine Airlines has already offered refunds to travelers fearful of flying to Mindanao.

For that reason, it is in the best interest of the Philippines to swiftly quell the terrorist threat, restore the rule of law, and draw an end to this period of martial law as soon as possible.  That is precisely why I suggest you request Pres. Donald Trump increase American troop presence in Mindanao.  Such a move would allow the police and military to continue fighting Islamic terrorists without compromising their focus on other priorities, such as the NPA (who have already announced they would utilize the current crisis to their advantage).  Since both the Philippines and the U.S. share a similar problem of having porous borders, thus enabling foreign Islamic terrorists to enter both countries (some of the killed Maute terrorists were from Indonesia and Malaysia), perhaps you can collaborate to find solutions.

Indeed, the U.S. would relentlessly curtail the escalation of Islamic terrorism.  In conformity with your desire to be “harsh,” Pres. Trump is willing to use practical, effective methods to counter the insurgents, such as enhanced interrogation techniques.  He is also willing to adopt Gen. Pershing’s method of using bullets dipped in pig’s blood, which quickly ended the war between the Americans and Moros during the early 20th century.

In light of Chinese President Xi Jinping’s threat on your desire for the Philippines to extract natural resources from the disputed West Philippine Sea, that “if you force the issue, we will go to war,” I must invoke the authority of Supreme Court Justice Antonio Carpio.  He states that “the threat of China to go to war against the Philippines if the Philippines extracts oil and gas in the Reed Bank, or in any area within Philippine EEZ in the West Philippine Sea, is a gross violation of the United Nations Charter, UNCLOS, and the Treaty of Amity and Cooperation in Southeast Asia to which China and the Philippines are parties.”

That is why, Mr. President, I implore you to discuss this issue with Pres. Trump.  After all, the U.S. also has a strategic interest in maritime security and maintaining freedom of navigation along the West Philippine Sea, which is one of the reasons Pres. Trump seeks to scale up the American navy.

Mr. President, it is indisputable that America’s military is the most powerful in the world, and wherein the U.S. refrained from full scale war, it has maintained a fairly stabilizing counter balance against hegemons like Russia and China.  In fact, just a few days ago, a U.S. warship sailed within 12 nautical miles of Mischief Reef unimpeded by China—a deliberate attempt to demonstrate that “Mischief Reef is not entitled to its own territorial sea regardless of whether an artificial island has been built on top of it.”  Indeed, according to Justice Carpio, “the Philippines must strengthen its alliance with the United States, the only country with whom the Philippines has a mutual defense treaty.”  Even the astute patriot whom you called “President Gordon” concurs on utilizing the presence of American troops in order to develop a “strong and credible defense capability.”

However, as we await the fortification of that alliance, Justice Carpio advises that the Philippines “bring China’s threat of war to another UNCLOS arbitral tribunal, to secure an order directing China to comply with the ruling of the UNCLOS arbitral tribunal that declared the Reed Bank part of Philippine EEZ.”  He added that the “Philippines can also ask for damages for every day of delay that the Philippines is prevented by China from exploiting Philippine EEZ.”

In following Justice Carpio’s lead, I also recommend that you persuade the U.S. to declare Panatag Shoal (universally known as Scarborough Shoal) as part of Philippine territory, which would protect it under the Philippine-U.S. Mutual Defense Treaty.  Such action would add clarity for legal ramifications, since the shoal was known to be under Philippine jurisdiction as early as the American colonial period.  The Japanese did precisely that with their Senkaku islands , which the U.S. declared as part of Japan’s territory for purposes of the U.S.-Japan Mutual Defense Treaty.

Meanwhile, Mr. President, you can send the Philippine Navy to patrol Panatag Shoal.  Should China stage an attack on any of our vessels, you can invoke the Mutual Defense Treaty, since it covers armed attacks on such vessels.  Of course, that would prompt the U.S. Navy to intervene.

I also recommend, Mr. President, that you express to Pres. Trump your gratitude for America’s contributions to our country’s welfare, including being an old, reliable ally whose troops fought alongside our troops against the Japanese invaders during World War II, providing foreign aid (in the form of funding, disaster relief supplies and manpower, and military assets and training), and U.S. legislation that currently supplements the income of our World War II veterans (in addition to their compensation by our own government).

The Oldest Philippine Alliance

Mr. President, Gen. Douglas MacArthur is one of Pres. Trump’s favorite commanders.  That is why I also urge you to give him a tour of the Leyte Landing Memorial Park, which is adorned by the American icon’s statue next to Pres. Sergio Osmena’s.  Perhaps such a setting would be appropriate to even hold a press conference wherein you can announce the fortification of Philippine-U.S. relations.

MacArthur Landing Memorial Park

I recommend the announcement be made on June 12, which is shortly upcoming and a historical date.  Indeed, it is the day Gen. Emilio Aguinaldo declared our country’s independence from Spain in 1898, for which a war by both Americans and Filipinos was fought.  Such a chosen time for the announcement would certainly send a chilling message to imperial China on their limits vis-á-vis a powerful, ironclad ally.

In conclusion, Mr. President, I welcome you forging new alliances with other countries.  However, new and dubious allies are no substitute for a single, loyal ally, especially since that ally according to Justice Carpio, is the “only one power on earth that can stop the Chinese and that’s the U.S.”  With that said, America is our greatest ally and an invaluable asset in combating Islamic terrorism and keeping China restrained.  Moreover, the world will respect us, and our enemies will fear us.  Thus, it would serve our country’s best interest to take full advantage of this opportunity.

Mr. President, I appreciate your service to our country and to our countrymen and look forward to the day when peace and order will be restored, federalism will take effect, our economy will grow at record levels, and our country will reach first world status.  May you have a successful presidency.

Mabuhay ang Pilipinas!

Marcial Bonifacio

Facebook Comments :

Evangeline Mejia's Profile Photo, Image may contain: 1 person, smilingEvangeline Mejia I definitely agree with this Marcial, this is better than criticizing duterte
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Marcial BonifacioMarcial Bonifacio Nagagalak akong malaman iyan, kaibigan ko. I must admit I was  pretty restrained dahil sa directly addressing Duterte. 🙂   Marahil his surrogates may  read it and bring it to his attention.
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Marlene Damolo Howe's Profile Photo, Image may contain: 1 person, smiling, closeup Marlene Damolo Howe I agree with Pres. Duterte’s declaration of Martial Law in Mindanao in order to bring back law and order for the safety of the residents. The president has been fighting enemies from all fronts, both foreign and domestic. So Martial Law is sometimes necessary. Your suggestions are sensible and doable. But I can also understand where Pres. Duterte is coming from as far as working diplomatically with China and Russia, the two other superpowers adversarial to the United Sates. It doesn’t mean that he abandons the country’s alliance with the U.S., but only to explore diplomatic relationships with the other two since the Philippines is in a precarious situation and having very little resources for defense. The U.S. has a vested interests in the Philippines geographical location to keep navigation passage free in the West Philippine Sea or South China Sea, and China’s interest in the Philippines is for its agressive “expansionism” agenda. China claims that ALL of South China Seas is hers, regardless of the UNCLOS provision of 200 nautical miles EEZ.

So what does a Philippine president has to do? Pres. Duterte is a smart strategist. He has a history of outsmarting his detractors being street smart and pragmatic. After previous American president (Barack Obama) tried to undermine his presidency, Pres. Duterte moved to seek “diplomatic” alliance elsewhere. Hence, the two other superpowers, Russia and China. It puts America on notice! But Pres. Trump is NOT Barack Obama. He is not an ideologue but a PRAGMATIST that only wants to do what’s best for America. And that means, WORKING WITH ALLIES and gain their trust. Under Barack Obama, OUR ALLIES NO LONGER TRUSTED US AND OUR ENEMIES DIDN’T FEAR US. Presidents Trump and Duterte have the same goal for their respective countries, to make it a better place where people are free to live their lives as they see fit and in peace. They had a good rapport when they talked while the opposite is true with Barack Obama.

So I hope that President Duterte will get your message and take your suggestions in consideration. We all want peace and better Philippines. So I hope that the self-serving obstructionists and disruptors will cease in their undermining the Duterte presidency and instead, help the president succeed in his efforts to combat the BAD ELEMENTS befalling our country; corruption, war on drugs and terrorism.

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LenDante Clarino LenDante Clarino Hey Marlene…long time… looks like your age is just like that of pretty Adaline. What’s the secret? Btw, i agree that u agree with #PDu30 here. ????
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Marlene Damolo HoweMarlene Damolo Howe

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Marcial BonifacioMarcial Bonifacio Magandang punto, kaibigang Marlene! Notwithstanding your     points that Duterte is a smart strategist, I concur with everything else. Naisip ko impulsive at short-sighted si Duterte dahil he forged ties with Russia and China before consulting  with Trump or Clinton tungkol sa paksang Panatag Shoal and their economic policy. Even before the U.S. presidential election was over in November of 2016, he could have ascertained both candidate’s proposals. If Obama were serving longer, then I might have some sympathy for Duterte’s decision. Gayunman, even then, it seems that Duterte may have been bent on forging new alliances just to spite the U.S. I have pointed out his anti- American inclination sa huling paliwanag ko titled “Digong is no Dick”:

Although Duterte has given mixed signals about his position on America and so-called “independent foreign policy” with other countries, his numerous rants and actions indicate he is, indeed, anti-American. For example, Duterte prompted the Supreme Court to deliberate on the constitutionality of the Enhanced Defense Cooperation Agreement (EDCA), in spite of its benefit to RP. He said that 2016 would be the last year the Philippines would participate in joint military patrols and exercises with the U.S., although he recently requested China’s assistance in sea patrolling as a pre-emptive measure against piracy. Duterte has constantly condemned the U.S. for the atrocities of the Bud Dajo Massacre in 1906, prompting former Pres. Fidel Ramos to characterize such anti-colonial thinking as  “20th-century thinking” from which we must detach ourselves.Furthermore, Duterte has  shifted RP’s arms supply source from the U.S. to Russia and China, in spite of what political  scientist Richard Heydarian addresses as “problems with configuration” in which it could take “years for the Philippines’ army to reorient itself with new technology.           ”https://www.marcialslaw.com/digong-is-no-dick-dick-gordon…/

Gayunpaman, sana Duterte will heed Carpio’s advice. Gayunman in so doing, he will have to strain ties with China to some extent, but he will regain some credibility for finally defending Panatag Shoal.


Digong is no Dick . . . Dick Gordon, that is
Updated 3/26/2017 By Marcial Bonifacio My…
MARCIALSLAW.COM

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Jocel MendozaJocel Mendoza I am one with the President. If the people who actually live in Mindanao support the declaration of Martial Law, why complain when we are not the one caught in war? Peace talks didn’t work and the enemies here are terrorists, we cannot talk sense to these people. Those who are against ML fear of power getting abused, but that is why the 1987 Constitution imposes limits to prevent it from happening. Martial Law then is different from Martial Law now.

Turning to Russia and China I think is the President’s way of bringing balance to Asia and neutralizing the tension in the region. We are not in the best position to declare war. Why would we fight China when even the US won’t. The most viable solution in the sea conflict – joint exploration.
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Marcial BonifacioMarcial Bonifacio Kaibigang Jocel, sang-ayon ako sa punto mo ng martial law—that the 1987 Constitution has safeguards which differentiate it from the previous one. Gayunman, Duterte did not make such a distinction. Sa kabilang banda, sabi niya, “Martial law is martial law. So to my countrymen, you have experienced martial law. Ito, it would not be any different from what the President Marcos did. I’d be harsh.” Fortunately,  Duterte’s surrogates have attempted to walk such statements back and make the distinctions which you made. Aside from using martial law for quelling Islamic terrorism, he should do so to neutralize the NPA as well, since peace talks with them have also failed.

Tungkol sa paksang bagong alliances, Duterte is not helpless in defending Panatag Shoal.  The Mutual Defense Treaty obligates the U.S. to engage in war should RP’s navy vessels get attacked by China. SC Justice Antonio Carpio has even stressed that sa sulat ko.  Gayunpaman, Duterte would set a good example for the other ASEAN members with similar disputes dahil RP’s sovereignty is legal sa pamamagitan ng ruling ng Permanent Arbitration Court.

LikeShow more reactions · Reply · June 3 at 2:46pm 

Image may contain: dog, outdoor and natureSeni Batong Etcudo · University of Baguio, Baguio City, Philippines

I just hope that president Duterte will accept the advice as written in this message. We don’t want to cut off our friendship with the USA.
LikeReply1May 30, 2017 6:09am
Marcial Bonifacio have tweeted this letter to Defense Sec. Delfin Lorenzana, Foreign Affairs Sec. Alan Cayetano, the DOJ,the Philippine Coast Guard, House Speaker Pantaleon Alvarez, Sen. Richard Gordon, and even Mocha Uson. Hopefully, Ines, they all will understand the significance of America’s alliance and will try to persuade the President.
LikeReplyJun 1, 2017 7:47pmEdited 
USA is our true ally – from World War II to present. There are thousands of Fil-Ams in the US Armed forces- from the lower ranks to the highest ranks. Thousands of Fil-Am families in US. How many Filipinos in PLA? Probably none. Free speech in USA allows Fil-Ams to lobby and represent the Philippines in economic, political and social issues. If only Filipinos think like the Japanese, Japan was nuked twice, was an enemy of both US and CHINA, but the WISE Japanese chose USA. USA will help protect RP than Red CHINA. Red China is making RP their FRONTLINE BATTLEGROUND. We will be like Tibet and N. Korea. Red CHina is bringing the war to the Philippines WHETHER FILIPINOS will fight or not fight. Filipinos might as well fight with a strong ally and closer ally – USA. Filipinos have NO VOICE in RED CHINA!
LikeReply1May 31, 2017 11:24amEdited
Marcial BonifacioExcellent points, Thor! What’s ironic is that, as I pointed out in my last commentary, Duterte “has defied all conventional logic by shifting loyalty from an old, reliable ally—sharing similar ideals and aspects of civil liberties, human rights, democracy, and military culture— to a hegemonic, dubious foe—sharing no such ideals or cultural facets.”
It seems that the only way out of this situation is either for Duterte to betray China and rejoin America, or for Duterte’s successor to reverse course.
LikeReply1Jun 1, 2017 6:33pm