Thread by @mikenavallo

NOW: At a PH Bar Association webinar on the West PH Sea this morning, retired SC SAJ Antonio Carpio says there are 2 challenges to enforcement of 2016 arbitral award: China and President Rodrigo Duterte.

Carpio enumerates instances when Duterte committed "self-inflicted blows":
-Duterte set aside award to secure $22B loans and investments from China but on less than 5% has so far materialized
-Sept 2016: Duterte said PH navy will patrol only territorial seas, not EEZ

Carpio enumerates instances when Duterte committed "self-inflicted blows":
-Duterte entered into verbal fishing agreement with Chinese Pres. Xi Jinping, a derogation of exclusive sovereign right of Filipinos to fish in WPS
-Duterte admitted being "inutil" in defending WPS

Carpio enumerates instances when Duterte committed "self-inflicted blows":
-November 2018, July 2019 and July 2020 SONA, April 2021: Duterte says China is in possession of West PH Sea.

Carpio says this is false. China controls less than 7% of total maritime area in West PH Sea.

Carpio says the 2016 arbitral award will have to be enforced by the new administration after Duterte leaves office. He notes that other ASEAN states, outside naval powers agree with the award; only China opposes it.

Carpio cites several initiatives that could enforce arbitral award:
-Adjacent ASEAN coastal states can enter into convention in South China Sea adopting 3 main aspects of award (says he does not see agreement on Code of Conduct in South China Sea anytime in the future)

Carpio cites several initiatives that could enforce arbitral award:
-PH and neighboring coastal states can conduct joint patrols in their own exclusive economic zones
-PH can join freedom of navigation operations of US, UK, other countries in South China Sea

Carpio cites several initiatives that could enforce arbitral award:
-PH can file extended continental shelf claim before UN Convention on Limits of Continental Shelf
-PH can encourage Indonesia, Malaysia and Vietnam to question China’s claim to additional fishing rights

Carpio cites several initiatives that could enforce arbitral award:
-PH can sponsor resolution in UN General Assembly demanding China comply with award
-Filipino people must correct false mantra of Duterte that China is in possession of West PH Sea

Carpio: Shout out to Pres Duterte that China is not in possession of the West PH Sea. Shout out loud so that Pres Duterte will wake up from his sleep under his kulambo (mosquito net) and admit to the nation the truth: China is not in possession of the West PH Sea.

Carpio's statements come 2 days after Pres. Duterte, on Wednesday night challenged him: “If you’re bright, why did we lose the West Philippine Sea?”

On Thursday, Carpio reminded Duterte it was he who set aside award after Pres. Aquino won the arbitral award.

Dr. Brendan Plant, Fellow at the Lauterpacht Centre for International Law and Downing College, University of Cambridge in the UK says enforcement of arbitral award is primarily political in nature, noting that tribunals usually do not have mechanism for enforcing rulings.

Plant says one step that could be taken is to file a new dispute under UNCLOS or a new dispute due to non-compliance with 2016 arbitral award. Non-compliance with binding ruling is an internationally-wrongful act which may form basis for new dispute.

Plant cites various mechanisms under the UN system that PH could resort to such as going to the UN General Assembly but warns that some of them could be vetoed by China under the UN Security Council.

Plant says PH could also resort to "self-help" measures such as retortion and countermeasures. Retortions are unfriendly gestures but not unlawful. Countermeasures are otherwise unlawful but a state injured by internationally wrongful conduct may resort to as a response.

Hofstra Univ Law School Sr Assoc Dean for Academic Affairs Julian Ku says he was critical of PH move to resort to intl arbitration on South China Sea dispute because he thought enforcement of award will be challenging. Says PH enforcement strat less effective than tribunal win.

Prof. Ku: If PH doesn’t care about interests in South China Sea, why should any other country in the world? It’s gotta start with the Philippines.

Ku says one of the measures PH could take is to pass a law vs. fishing vessels in its exclusive economic zones.

Says though he is not optimistic about PH enforcement of arbitral award, doesn't mean he doesn't think China is the bad actor.

CORRECTED: “Retorsion”
instead of retortion.

TOP STORY:

Rouse him from 'sleep under his kulambo': Carpio cites Duterte's 'self-inflicted' blows favoring China on sea dispute

news.abs-cbn.com/news/04/30/21/…

WATCH: Philippine Bar Association webinar on the West PH Sea with retired SC Senior Associate Justice Antonio Carpio fb.watch/5bvP7AqryS/

TV Patrol:

Duterte: If you’re bright, why did we lose the West Philippine Sea?

Carpio: Shout out loud so that President Duterte will wake up from his sleep under the kulambo and admit to the nation the truth — that China is not in possession of the WPS.

The World Tonight:

In the face of verbal exchange between President Rodrigo Duterte and retired SC Senior Associate Justice Antonio Carpio over the West PH Sea, intl law experts say PH should take the lead in asserting arbitral award despite difficulty.