EXCLUSIVE: Carpio on South China Sea dispute
Summary
TLDRIn this interview, a Justice discusses the implications of a tribunal ruling on jurisdiction in the South China Sea dispute, highlighting that the Philippines' case proceeds to the merits phase. The Justice emphasizes the tribunal's rejection of China's objections on sovereignty and maritime boundary delimitation, viewing the ruling as an initial victory. He also addresses the US Navy's freedom of navigation operations, the potential for China to adopt the US position on maritime transit, and the importance of international law in resolving territorial disputes, stressing the need for a peaceful resolution through arbitration.
Takeaways
- π The tribunal's ruling on jurisdiction means the case will proceed to the merits phase, where the Philippines will present evidence against China's claims in the South China Sea.
- π The initial victory for the Philippines is significant as it allows the tribunal to consider the legality of the 'Nine-Dash Line' and the status of certain geological features.
- π The tribunal has jurisdiction on seven submissions, while the remaining seven are reserved for consideration after the merits are determined, indicating the complexity and interconnection of the issues.
- π¨π³ China's objections to the proceedings, based on sovereignty and maritime boundary delimitation, were rejected by the tribunal, which found the case does not involve these issues.
- π£οΈ The Philippines' legal team believes they have answered all questions from the tribunal satisfactorily, both orally and in writing, contributing to the favorable ruling.
- β½οΈ The halt of oil exploration at Recto Bank due to the arbitration case indicates the importance of the tribunal's decision on maritime entitlements.
- π’ The US Navy's freedom of navigation operations within 12 nautical miles of Subi Reef is a demonstration of the US's stance on international waters, separate from the Philippines' case.
- π China's inconsistent behavior in international waters, such as sailing through the Mediterranean without permission, highlights the need for a unified approach to maritime law.
- π€ The territorial dispute in the South China Sea remains unresolved, as China refuses compulsory arbitration, and a regional agreement similar to the Pact of Bogota is suggested for peaceful resolution.
- ποΈ The South China Sea dispute is not just about resources but also about China's assertion of power and its implications for international law and norms.
- π°οΈ The tribunal's decision is expected by mid-2016, with the Philippines' legal team confident in their preparedness to defend their claims in the merits phase.
Q & A
What does the tribunal's ruling on jurisdiction mean for the Philippines?
-The tribunal's ruling on jurisdiction means that the proceedings will continue on the merits, allowing the Philippines to present its evidence on why the nine-dash lines are void and certain geologic features are entitled to only 12 nautical miles instead of 200 nautical mile exclusive economic zones.
Can the tribunal's decision on jurisdiction be considered a victory for the Philippines?
-Yes, the tribunal's decision can be considered an initial victory for the Philippines as it allows the case to proceed to the merits phase, which is what the Philippines wanted.
What is the significance of the seven submissions that the tribunal reserved consideration for?
-The seven submissions are significant because they are intertwined with the merits of the case, and the tribunal's decision to reserve consideration indicates that these issues cannot be decided without understanding the factual context, which has not yet been presented.
How did the Philippines' position on the tribunal deciding jurisdiction and merits together affect the proceedings?
-The Philippines' position influenced the tribunal's approach to bifurcate the proceedings, having a separate hearing on jurisdictional issues due to China's position paper on jurisdiction, which led to the current situation where some issues are reserved for later consideration.
What are the two principal objections by China on jurisdiction that the tribunal addressed?
-China's two principal objections were that the Philippines raised sovereignty issues and involved maritime boundary delimitation, which China claimed should not be subjected to compulsory arbitration. The tribunal rejected these objections, stating the case does not involve sovereignty issues or maritime boundary delimitations.
How did the US Navy's actions affect the arbitration case?
-The US Navy's actions, sailing within 12 nautical miles of Subi Reef, were part of their freedom of navigation operations and do not directly influence the arbitration case. However, such actions reflect the broader international stance on freedom of navigation beyond territorial seas.
What is the difference between the territorial dispute and the maritime dispute in the South China Sea?
-The territorial dispute involves claims over land and sovereignty, while the maritime dispute concerns the rights and entitlements under the United Nations Convention on the Law of the Sea (UNCLOS), such as exclusive economic zones and continental shelves.
Why is the Code of Conduct (COC) in the South China Sea different from a dispute settlement mechanism?
-The COC is intended to regulate conduct at sea to prevent conflicts, whereas a dispute settlement mechanism under UNCLOS is designed to resolve maritime entitlements and territorial disputes through legal processes like arbitration.
What is the expected timeline for the tribunal's ruling on the merits of the case?
-The tribunal is expected to deliver its ruling on the merits by mid-2016, based on the typical timeline of four to six months from the case submission for decision.
How does the Philippines plan to ensure China honors the tribunal's ruling if it goes against China's interests?
-The Philippines plans to seek international community support to convince China to abide by the ruling, leveraging China's desire to be seen as a responsible member of the international community and its reliance on global trade and cooperation.
What is the role of the G7 and ASEAN in supporting the arbitration process?
-The G7 and ASEAN have expressed their support for the arbitration process as a peaceful means of dispute resolution, and they expect all parties involved to respect the tribunal's decision once it is rendered.
Outlines
π Tribunal Ruling on Jurisdiction: A Preliminary Victory for the Philippines
The interviewee discusses the significance of the tribunal's ruling on jurisdiction, which allows the Philippines to present evidence on the merits of the case. The ruling is seen as an initial victory for the Philippines, rejecting China's objections that the case involves sovereignty and boundary delimitation. The tribunal has jurisdiction over seven submissions, while the remaining seven are reserved for consideration with the merits. The interviewee emphasizes that the Philippines' stance was to decide jurisdiction and merits together, and the tribunal's bifurcation was due to China's position paper. The tribunal's decision on the non-involvement of sovereignty and boundary delimitation issues is highlighted as a rejection of China's principal objections.
π³οΈ US Warship's Navigation and Its Impact on the Arbitration Case
The conversation shifts to the recent move by the US, where a warship sailed within 12 nautical miles of Subi Reef, and its implications for the arbitration case. The US Navy's action is framed within the context of freedom of navigation operations, reflecting the majority view that military vessels should not need permission to sail beyond territorial waters. The interviewee points out China's inconsistency in its stance, given its recent naval activities in the Mediterranean Sea and near Alaskan waters, suggesting that China may eventually adopt the US position on this matter. The US's stance is separate from the Philippines' position on the exploitation of natural resources within the exclusive economic zone (EEZ), and the interviewee clarifies that the US is supporting a peaceful resolution through arbitration rather than taking sides in the dispute.
π Sovereignty and Territorial Disputes: The Need for a Regional Agreement
The interviewee addresses the complexity of resolving sovereignty and territorial disputes in the South China Sea. While the maritime dispute can be settled through the United Nations Convention on the Law of the Sea (UNCLOS), territorial disputes require mutual agreement for compulsory arbitration, which China has refused. The interviewee suggests that an agreement similar to the Pact of Bogota, where all territorial disputes are submitted to compulsory arbitration, could be a solution. Such an agreement would prevent territorial wars and promote the rule of law in Asia. The Code of Conduct (COC) is distinguished from a dispute settlement mechanism, being a set of regulations for behavior at sea rather than a means to resolve territorial claims.
π Anticipating the Tribunal's Decision and China's Response
The interviewee anticipates that the tribunal will rule that China cannot claim the entire South China Sea and will be limited to what UNCLOS allows. The expectation is that the decision will be supported by the international community, potentially isolating China. The challenge of enforcing the ruling against China's initial position to ignore any adverse ruling is discussed. The interviewee believes that international pressure and China's desire to be seen as a responsible global actor will encourage compliance with international law. The support of the G7 and the EU for the arbitration approach is highlighted, and the interviewee expresses confidence in the Philippines' legal team to defend the country's claims in the merits phase of the case.
Mindmap
Keywords
π‘Tribunal
π‘Jurisdiction
π‘Nine-Dash Line
π‘Low Tide Elevation
π‘Exclusive Economic Zone (EEZ)
π‘Bifurcate
π‘Position Paper
π‘Sovereignty
π‘Maritime Dispute
π‘UNCLOS
π‘International Arbitration
π‘Freedom of Navigation
π‘Territorial Sea
π‘Code of Conduct (COC)
Highlights
The tribunal's ruling on jurisdiction allows the proceedings to continue on the merits, with the Philippines presenting evidence against the Nine-Dash Line.
The tribunal's initial ruling is considered a victory for the Philippines as it addresses preliminary jurisdictional issues.
Seven submissions on jurisdiction were ruled upon by the tribunal, with significance lying in their connection to the merits of the case.
The tribunal's bifurcation of the proceedings was due to China's position paper on jurisdictional issues, despite the Philippines' preference for a combined decision.
China's principal objections on jurisdiction regarding sovereignty issues and boundary delimitation were rejected by the tribunal.
The tribunal's reserved judgment on seven issues is intertwined with the merits and does not imply a setback for the Philippines.
The Philippines' legal team provided satisfactory answers to the tribunal's questions, both orally and in writing.
Oil exploration at Recto Bank has been halted pending the arbitration case outcome.
A favorable tribunal ruling could grant the Philippines the right to proceed with oil exploration within its exclusive economic zone.
The US Navy's freedom of navigation operations reflect a stance on international law, not necessarily support for the Philippines' position.
China's inconsistent behavior with its blue-water navy suggests it may eventually adopt the US position on freedom of navigation.
The territorial dispute in the South China Sea cannot be resolved through compulsory arbitration as China refuses to participate.
A potential agreement among Asian countries to submit territorial disputes to arbitration could prevent future conflicts.
The Code of Conduct (COC) is a mechanism for regulating behavior at sea, not a dispute settlement mechanism.
China's control over the South China Sea could undermine the international law and the United Nations Convention on the Law of the Sea (UNCLOS).
The Philippines expects international support in convincing China to honor an adverse ruling from the arbitration tribunal.
China's economic and political ambitions may require it to adhere to international norms and rulings for global cooperation.
The tribunal's decision is expected by mid-2016, with the Philippines' legal team prepared to defend their claims.
International support, including from the G7 and ASEAN, is crucial for the enforcement of the tribunal's ruling.
Transcripts
good morning Justice thank you for
granting this interview good morning a
sir how should the country uh view this
uh ruling by the tribunal specifically
on the jurisdiction
issue well on the jurisdiction issue the
ruling means that the uh proceedings
will continue uh on the merits uh
Philippines uh will present its evidence
uh on why uh the nine Dash lines are
void and why certain geologic features
are low tide uh or Islands uh entitled
only to 12 nautical miles and not to 200
nautical mile exclusive economic zone so
in other words uh the ruling is what we
wanted can we say Sir that it's a
victory on the part of the Philippines
oh yes uh it's an initial Victory
because it's just the uh preliminary
issue on
jurisdiction sir the seven submissions
that the Juris that the tribunal are
ruled it has jurisdiction um how why
what's their significance and some
analysts are saying that the seven other
submissions that the tribunal said uh
reserves consideration of of his
jurisdiction are the most important uh
uh Philippine submissions uh we have the
N Dash line the China's illegal
activities on the disputed Waters your
your take on that Justice well uh you
must remember that uh when we filed this
case we didn't want the uh tribunal to
bifurcate the proceeding in other words
we wanted the tribunal to decide the
jurisdiction together with the merits
but uh because China submitted the
position paper without uh participating
they submitted a position paper on the
jurisdictional issues the tribunal was
forced to bifurcate it to have a
separate hearing uh on the
jurisdictional issues because under
their rules of procedure they have to do
that if the issue of jurisdiction is
raised by a party and so uh uh we had to
go through this uh jurisdictional
hearing and uh seven of the issues uh
the court said they have jurisdiction
and on the seven they said we can
determine
jurisdiction only if we go through the
merits in other words the jurisdiction
issues are so intertwined with the
merits that they cannot decide right now
but you have to remember that it was our
uh position that all of this should be
cided together
uh I mean uh that was our original
position and it doesn't uh it's not no
big deal that uh the uh tribunal said
that on seven issues we reserved but
remember what what uh the principal
objection uh objections of China uh to
the proceedings were two uh that uh we
rais sovereignty issues and second that
uh the issues we rais uh involve C
boundary delimitation which China said
uh they will not be uh subjected to
compulsory arbitration they made a
reservation so these are the two uh
substantive uh objections on
jurisdiction and the court said the
tribunal
said
uh this uh case does not involve
sovereignty issues it does not involve C
boundary delimitations on all the 15
issues so their princip principal
objection on
jurisdiction the two principal
objections by China on the jurisdiction
were totally rejected by the court the
fact that uh the court said on seven
issues we cannot yet rule because uh it
involves factual issues they have to
know the facts and we have not yet
presented the facts doesn't mean
anything really we expected that because
that was our position from the very
start sir let's go back to the uh the
hearing at the he uh in in July you were
there sir you were part of the
Philippine delegation you you were you
observed the entire proceeding sir sir
how was how was the line of questioning
there and do you think we were able to
provide them satisfactory answers yes I
think we answered uh fully all their
questions orally and in
writing uh and uh I think uh that that's
why we have this kind of a ruling uh we
got everything we wanted uh that portion
there that issues uh on seven issues
they deferred doesn't really mean
anything because we expected
that sir we know that the oil
exploration at the recto bank uh has
been stopped uh because of the pending
arbitration case Sir with this ruling on
jurisdiction can we now say that the
government canot proceed with it or if
not uh when no not yet because the case
has not been uh finished yet we have to
wait for the outcome it's still pending
but sir once it uh the the tribunal has
ruled
uh let's say uh favoring our our
position then we can if the tribunal
rules that uh the Reed Bank belongs to
the exclusive economic zone of the
Philippines then of course uh uh we have
all the right to proceed because under
the law of the sea uh we have the
exclusive right to exploit our e MH sir
how about the recent move of the US uh a
US warship sailing within the uh 12
nautical miles of subbi reef sir how
does this affect our case and will this
put pressure on China to finally
participate in the arbitration case well
uh the the saale buy by the US Navy was
pursuant to their freedom of navigation
operations because the US has always
held that uh beyond the territorial sea
there's freedom of navigation for
commercial vessels as well as military
vessels without the the Sovereign of
these vessels asking for permission from
the coastal state that has always been
their position and that is the majority
view the overwhelming view
uh in uh all Juris Prudence all majority
of the overwhelming majority of
countries follow that position a small
group of countries not more than 20
including uh China uh followed the
position that beyond the territorial sea
but within the E uh warships will have
to ask permission for those warships to
sail but uh recently the China China
sent its Navy to the Mediterranean for
Naval drills in the Mediterranean Sea
together with Russia and in the
Mediterranean Sea there are no high seas
they're all overlapping exclusive
economic zones and China did not seek
permission from the coastal state so
they they are now inconsistent and China
also recently uh sailed through the with
their vessels with their warships
through the uh e and territorial sea of
the US in the Illusion in the uh
illusions of Alaska so uh without
permission from the US and the US just
allowed it because that is the position
of the US so uh China is saying that the
foreign vessels military vessels cannot
sail in our e without permission but
they're doing the opposite now so I
think finally they will agree to that
because what will you do with your blue
water Navy if you cannot sail uh through
the E of coastal countries I mean you
have to ask permission every time you
you uh sail through the EAS and they're
all over the world so I think eventually
China will adopt the position of the
US uh that uh that's what happened
during the Cold War when the US USSR
also uh did not allow uh American
warships to sail through their e but
when they had a Blue Water Navy they
change their position so I think uh
that's just temporary um uh that's just
temporary uh the uh the China China will
eventually adopt the same view as the us
because they have expensive warships and
those warships cannot sail through the
around the world because they have to
pass through many exclusive economic
zones so the US position is separate
from our position our position is that
within our e we have exclusive right to
exploit our natural resources the US
operations have nothing to do with that
yeah go good thing sir you pointed that
out because us is maintaining that it's
not taking any side particularly that of
the Philippines when when they s sent
that uh warship yeah it was not uh to
favor us it was not to uh to support our
position because they have a different
issue with China although there is some
convergence but that convergence will
disappeared the moment that China adopts
the US position because as far as the
exploitation of the natural resources
within our e the US is not saying
anything the US just saying we support
the Philippine approach to bring this to
a peaceful resolution through
arbitration that is what they're
saying so you've mentioned earlier about
sovereignty uh we know that the
arbitration case only uh settles the
maritime entitlements uh what should the
Philippines and other claimant parties
uh do uh in order for that sovereignty
question uh be resolved finally well uh
as you know the uh there are two issues
uh in the South China dispute there's
the territorial dispute and the maritime
dispute on the maritime dispute all the
parties have signed the United Nations
convention and the law of the sea and
there is a compulsory dispute settlement
mechanism that's why we can sue China
when it comes to the territorial dispute
there is no agreement among the
countries that uh the dispute on
territory will be submitted to
compulsory arbitration for every
territorial dispute the parties must
agree to submit it to compuls
arbitration uh before the icj or any
other arbitral body China refuses to
submit this to arbitration the
territorial dispute so we cannot force
China now uh the ideal thing is for
aayan to adopt uh an agreement that or
all territorial disputes should be
submitted to arbitration and invite
China to join that agreement so that the
territorial dispute in this practice
will be submitted to resolution by an
arbitral body it could be the icj uh
there is precedence to this of course
you have uh the pack of bot in Latin
America where all the countries in Latin
America have agreed that all Territorial
and Maritime disputes should be
submitted to compulsory arbitration
that's that's why you don't see Border
Wars anymore in Latin America because
before they signed the pack of Bot they
were always fighting each other because
of their border uh problems they they
claim that you're encroaching on our
territory so they would always be
Perpetual Border Wars because uh of
course their borders were arbitrarily
drawn by the colonial powers of the time
so they devised this mechanism the pack
of Bot now we have aayan integration now
economically we plan to be a union but
there's one missing uh component that
the territorial dispute should be
submitted to arbitration so that uh
countries within Assan don't go to war
so I think uh we have to move for this
and invite the other countries in Asia
to agree so that there will be no
territorial Wars anymore I mean uh we
submit to the rule rule of law so is it
is it correct to say that it is the COC
that we're pushing no no uh the COC is
different uh the code of conduct says
what it is it is a code for regulating
conduct conduct at Sea so that uh you
don't go to uh fight each other when you
bump into the sea uh it's a code of uh
good behavior in Sea so that you will
not go to war a shooting War it does not
set the dispute that is not a dispute
settlement mechanism that is a mechanism
to regulate conduct at se MH so uh the
dispute will still continue as to who
owns the maritime zones there is a
dispute settlement mechanism under
unclos we don't have to reinvent that
the code of conduct will not involve a
dispute settlement mechanism on Maritime
zones that's already in the uncl and we
don't want it to be changed MH the code
of conduct that we want China to sign is
a code on
Behavior at
Sea sir uh all this uh issue on the west
on the side South China Sea the West
Philippine Sea um do you think this is
just a battle or or a fight over
resources or this is uh China asserting
itself as a world superpower well
definitely China wants all the resources
in the South China Sea uh they want all
the fish all the oil and gas that's why
when we tried to bid out internationally
areas three and four in the Reed bank
they sent us note verbal and they said
we own areas three and four in the Reed
Bank we own in fact the entire Reed bank
that's their position so it's a fight
over resources over fishery because
China adopted Fisheries regulation that
you cannot fish in the South China Sea
without without our permission so it's
it's a fight over resources
uh the uh of course if you control the
resources in the South China Sea then uh
you influence a lot of countries around
the South China
Sea and is it correct s that if China
maintains uh control over the South
China see what's what's stopping them
from from moving to other uh bodies of
water to other territor well uh there
are uh there are speculations that after
securing the South China Sea they will
move beyond beyond the first island
chain in the Western Pacific uh we do
not know if uh they will do that but uh
that seems to be the direction but uh we
if they do that if they can control the
South China Sea economically and uh
militarily then there will be no law of
the sea anymore there will be no
unclose that's why we went to the
tribunal and as the tribunal to apply
the law of the sea in the South China
Sea so I I expect that the tribunal will
say China cannot claim the entire South
China Sea they will be limited to what
unclas allows them 200 nautical miles
from their from their
Coastline and uh I think that decision
will be supported by the
world so China uh we will be isolated
here MH so let's say we in the
arbitration case the bigger question is
how do we make China honor that uh
ruling well China already said that they
will ignore any adverse ruling of course
that's their initial position but once
we get that ruling that the nas lines
are void we will go to the International
Community to support us help us convince
China and uh of course uh China wants to
be seen as a responsible member of the
Civilized community of Nations they want
to show that they follow international
law law and uh China needs the world to
survive it needs to export to survive it
needs to import to survive and they
cannot just ignore World opinion they
want the world to join uh them in their
Maritime Silk Road in their one belt one
road over uh Asia and the EUR European
landmass but why will countries join
them when they when they encroach invade
on the maritime zones of coastal States
so they they have to follow
International Norms if they want people
the other states to cooperate with
them sir uh it's stated in the press
release of the arbitration court that we
expect a ruling by 2016 sir when exactly
do we see that well uh we expect it by
not later than mid 2016 because normally
uh it takes the tribunal four to 6
months from the time uh the case
submitted for decision and it will be
submitted for decision by end of this
month
sir lastly sir sir do you think uh our
legal team uh at the he will be ready
enough to defend our claims especially
now when we go to the merits of the case
yes uh they've been ready uh for some
time already and I think uh I I am
completely confident that they will do a
very uh very good job an outstanding job
in fact to in defending our
position just as any final words uh what
what should we anticipate what should we
expect during the uh merits uh part of
the case well uh I think uh what we
should be doing is to explain the world
to the world our position so that when
the decision comes they will understand
uh what it means and they will support
uh the decision of the tribunal MH but
sir sorry sir uh do you think the the
support of the G7 the uh the asan uh do
you think that's enough already or do we
need more pressure well the G7 came out
with a with a declaration uh that uh
they expect the parties China and the
Philippines to abide by the decision of
the
tribunal uh the EU came out with a
declaration that they support the uh
arbitration uh approach of the
Philippines as a peaceful settlement of
dispute in fact that is the uh statement
of all the countries because that's part
of the charter of the UN arbitration is
a peaceful settlement of dispute that's
expressly enshrined in the UN Charter
and uh once there is a ruling that
ruling becomes part of international law
and that has to be followed by all
civilized
Nations
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