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Justice Antonio T. Carpio (Ret.)

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Nothing new in last SONA

President Rodrigo Duterte’s last State of the Nation Address (Sona) on July 26, 2021 broke no new ground on the most important foreign policy issue facing the Philippines — China’s relentless encroachment on the West Philippine Sea. Sadly, President Duterte adopted and reiterated the position of China that rejected the validity of the Arbitral Award in favor of the Philippines.

President Duterte repeated in his Sona what he stated before the UN General Assembly last September 2020: “The Arbitral Award is now part of international law, beyond compromise and beyond the reach of passing governments to dilute, diminish or abandon.” These are beautiful words that only Foreign Affairs Secretary Teddyboy Locsin could have crafted. But then President Duterte immediately took back what he grandiosely proclaimed when he ad-libbed: “What will I do with a document that does not bind China because they were never a part of that arbitration? There was really no arbitration at all because it was only the Philippine side that was heard.”

President Duterte again repeated the fundamental position of China—that the Arbitral Award is null and void because China did not take part in the arbitration. This aligns with what China has been saying and what President Duterte has been slavishly echoing—that the Arbitral Award is a scrap of paper that should be thrown into the wastebasket. President Duterte has always remained faithful to the Chinese propaganda that the Arbitral Award is a mere scrap of paper because China never participated in the arbitration.

China, and by extension President Duterte, are of course grossly and manifestly mistaken. When China ratified the UN Convention on the Law of the Sea (Unclos) in 1996, it gave its consent in advance, like any other state party to Unclos, to any future arbitration against China that may be brought by another state party under the compulsory dispute settlement mechanism of Unclos. China agreed to abide with the Unclos arbitration rule which states, “Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”

Like in domestic litigation, the jurisdiction of an Unclos tribunal is conferred by law and not by the whim of the state parties. The jurisdiction of the arbitral tribunal in the South China Sea Arbitration was conferred by Unclos, which is the law among all states that ratified Unclos. Like in domestic litigation, a state party that is sued under Unclos cannot oust a tribunal from its jurisdiction by refusing to appear in the case.
President Duterte’s last Sona, however, is notable for what he did not say. Earlier, presidential spokesperson Harry Roque had intimated to media that President Duterte would endorse in his Sona a new baseline law proposed by former justice Francis Jardeleza, Atty. Romel Bagares, and Atty. Melissa Loja. House Bill No. 9835 authored by Rep. Ann K. Hofer and House Bill No. 9662 authored by Rep. Luis Raymund Villafuerte copied verbatim the draft bill proposed by these three lawyers. The two House bills claim as Philippine territory geologic features in the Spratlys that the Philippines never claimed before under PD 1956, which formalized in 1978 our claim to the Kalayaan Island Group (KIG).

Our KIG claim under PD 1956, as amended by RA 9522 in 2009, never included Louisa Reef of Brunei, Swallow Reef of Malaysia, or Spratly Island of Vietnam. The two House bills expressly claim that these geologic features belong to the Philippines. Anyone who has studied our KIG claim knows that the Philippines never claimed the entire Spratlys, which the two House bills now purport to claim at this very late stage. This will drive a deep rupture in our relations with Brunei, Malaysia, and Vietnam. It is like Brunei claiming our Ayungin Shoal, Malaysia claiming our Turtle Islands, and Vietnam claiming our Balabac Island, which will naturally cause a huge uproar in the Philippines.

Had President Duterte endorsed the two House bills in his Sona, or should these two House bills become law, we could expect a similar uproar in Brunei, Malaysia, and Vietnam against the Philippines. The budding united front among Asean coastal states against China’s nine-dash line will collapse. Chinese Foreign Minister Wang Yi will be jumping with joy in Beijing for successfully dividing the Asean coastal states.

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