Carpio: China may go rogue, ignore arbitral ruling

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Metro Manila (CNN Philippines, January 16) — A Supreme Court Justice insisted on Tuesday that Beijing must accept the ruling of an international arbitral tribunal on the South China Sea maritime dispute as it seeks permission to conduct marine scientific research in resource-rich Benham Rise.

Both areas are governed by the United Nations Convention on the Law of the Sea (UNCLOS), an international treaty that defines the limits of the territorial seas of nations and the areas where they could exploit marine resources.

"China is legally bound by the tribunal's ruling, whether China likes it or not. That is the compulsory nature of international law. But China can decide to go rogue and refuse to accept and implement the ruling," Senior Associate Justice Antonio Carpio warned  in a statement Tuesday.

Carpio said China, for instance, has refused to vacate Mischief Reef, even if the arbitral tribunal in July 2016 ruled that it is part of the Philippines' exclusive economic zone (EEZ) which is submerged during high tide.

Mischief Reef or Panganiban Reef to Filipinos - lies about 129 nautical miles west of Palawan. China has occupied Mischief Reef since 1995 and has built structures on it.

Carpio's statement follows Presidential Spokesperson Harry Roque's statement Monday that whether China accepts the tribunal's ruling or not is "immaterial."

"In international law, the decision itself is the implementation of the law because that's a statement of the rights of the parties which cannot be extinguished and which does not depend on any country accepting its binding nature," he said.

Roque was reacting to Carpio's earlier statement that the Philippines should not allow China "to study the waters off the eastern parts of Luzon," where Benham Rise is located, since Beijing has not accepted or even recognized the decision of the arbitral tribunal on the South China Sea.

The 13-million hectare undersea plateau that lies 216 kilometers (135 miles) east of coast of Aurora province was renamed Philippine Rise by President Rodrigo Duterte in May 2017. It lies within the continental shelf of the Philippines as defined by UNCLOS.

"I do not know the relevance really of the arbitral decision to Benham Rise because that's not part of the controversy. So, to even confuse the arbitral decision with Benham Rise is wrong. It has never been contested. It was awarded to us by the UN Commission on the Extended Continental Shelf," Roque said.

In April 2012, the United Nations approved the Philippines' territorial claim to Benham Rise. It was the country's first successful validated claim under UNCLOS.

Carpio said it would be "foolish" for the Philippines to grant China's request to explore Benham Rise, while China refuses to comply with the ruling on its rights in the disputed South China Sea.

"As long as China refuses to accept and implement the ruling, the Philippines should deny China's request to conduct any marine scientific research in Benham rise," he stressed. " The Philippines would be foolish to grant China's request while China refuses to comply with the ruling."

He added that in international law, there is no "world policeman" to enforce a legally binding ruling.

"Acceptance and implementation of the ruling by the losing State is obviously material. More so if the losing State is a military power," Carpio said.

Last March, the Philippines raised concerns over the sighting of Chinese survey ships in Benham Rise. China claimed they were only exercising "innocent passage" in the area.

Last week there were reports that the government had granted a Chinese think-tank's request to study areas around Benham Rise.  The government has not confirmed or denied the report, but said rules would be followed should this be the case.  It  also saw nothing wrong with allowing other countries to explore the area if they meet the requirements set by the government.

Related: Gov't: Rules will be followed in Benham Rise exploration