(Publisher’s note: Associate Justice Antonio Carpio of the Supreme Court of the Philippines wrote in the Wall Street Journal on July 17, 2016 how the Philippines can enforce an international tribunal ruling against China regarding the South China Sea conflict. In the article, Justice Carpio also mentioned a possible role by Canada. See paragraph in bold.)
How the Philippines Can Enforce the South China Sea Verdict
By Antonio Carpio
The historic ruling of an international tribunal in the Philippines v. China arbitration clarifies with finality the South China Sea maritime zones to which the Philippines and China are entitled under the United Nations Convention on the Law of the Sea (Unclos). The ruling also clarifies the use by other states of the waters of the sea.
The ruling strikes down as illegal China’s “nine-dash line” as a claim to nearly 90% of the waters of the sea. The result is that some 25% of the waters are high seas, found in the sea’s center. High seas, where there is freedom of navigation and overflight for civilian and military vessels and aircraft of all nations, belong to mankind.
The illegality of the nine-dash line also affirms that around the high seas are the exclusive economic zones (EEZs) of coastal states: the Philippines, Malaysia, Brunei, Indonesia, Vietnam and China. The prevailing view, adhered to by an overwhelming majority of states, is that within the EEZs there is also freedom of navigation and overflight for civilian and military vessels and aircraft. No permission is required from a coastal state for the vessels and aircraft of other states to sail or fly there. China belongs to a small minority of states that hold the opposite view, that foreign military vessels and aircraft must secure the permission of the coastal state before sailing or flying in that state’s EEZ.
Who will enforce the parts of the ruling affirming the existence of the high seas and EEZs? While there is no world policeman to do so, the world’s naval powers, led by the U.S., have declared that they will sail and fly in the high seas and EEZs of the South China Sea to assert freedom of navigation and overflight for their military and civilian vessels and aircraft. Since China cannot prevent the world’s naval powers from asserting such freedom of navigation and overflight, an important part of the ruling will definitely be enforced. The South China Sea can never become a Chinese lake as China intended under its nine-dash-line claim.
The illegality of the nine-dash line also means that it can’t overlap with the EEZ of the Philippines. Any overlap could only come from maritime zones emanating from geologic features—actual land territories—claimed by China. The ruling declared that not a single geologic feature in the entire Spratly archipelago is entitled to a 200-mile EEZ, not even Itu Aba, the largest feature in the Spratlys. It declared that some features are uninhabitable natural “rocks” entitled only to 12-mile territorial seas. The ruling also held that Scarborough Shoal is entitled only to a 12-mile territorial sea.
The result is that only two rocks controlled by China, McKennan Reef and Scarborough Shoal, are within the Philippine EEZ. These two features are entitled only to a 12-mile territorial sea. Thus the entire Philippine EEZ in the South China Sea—estimated at 381,000 square kilometers, larger than the total land territory of the Philippines—is free from any overlapping claim from China, except for the two small 12-mile territorial seas of McKennan Reef and Scarborough Shoal.
How can the Philippines enforce its exclusive right to exploit the natural resources in its EEZ if China rejects the ruling? Again, there is no world police, but the Philippines is not helpless.
If a Chinese oil company brings a gas platform to Reed Bank, within the Philippine EEZ, to extract gas, the Philippines can sue the company in a state where the company has assets, like Canada, which is a member of Unclos. The Philippines can show the Canadian court the ruling that the gas in the Reed Bank belongs to the Philippines. The Philippines can ask the Canadian court to seize the assets of the Chinese firm in Canada to compensate the Philippines for the loss of the gas.
The Philippines can also seek reparations from China for damages. The ruling held that China’s dredging inflicted irreparable injury to the fragile marine ecosystem in the Spratlys, including Mischief Reef and Subi Reef, which form part of the Philippine continental shelf. Under the Law of the Sea, a state is liable for damages for causing harm to the marine environment of a coastal state.
The Philippines can also ask the International Seabed Authority, a creation of Unclos, to suspend the four permits it issued to China to explore the seabed in the high seas beyond national jurisdiction. States that ratified Unclos agreed to accept it as a “package deal”—accepting its provisions entirely and not selectively. If China rejects the ruling, the Philippines can assert that China is accepting the benefits of Unclos under its seabed provisions but rejecting its provisions under its dispute settlement mechanism.
Over time the ruling will be enforced substantially because the world will never accept that a single state can claim ownership to almost an entire sea that is bordered by several states. Such a precedent would mean the demise of the Law of the Sea.