1.

All about the (G)Reed Bank: From Ferdinand Marcos Sr. to Albert del
Rosario: Sass Rogando Sasot. 
After the Arbitration Decision was released, former US Senator and U.S. Secretary of Defense
Chuck Hagel was interviewed. He said that by signing UNCLOS, China gave up its historical
rights, and the Arbitral Decision “gives all those countries in that part of the world the high
ground here and has isolated China.” Hagel’s recent pronouncement indicates that the US has
already abandoned its position in the 70s on the South China Sea territorial disputes.
According to the Memorandum From the President’s Assistant for National Security Affairs
(Scowcroft) to President Ford, during the 70’s, the Philippines and other claimants, except
China, “have militarily occupied one or more of the Spratly Islands.”Just like the Soviet Union,
“the United States is not involved;” and declared that: The US has “no claims and we support
nobody else’s claims.” Reacting to suggestions to deploy troops during the naval battle
between China and South Vietnam for the Paracels and the Spratly Archipelago, then US
Secretary of State Henry Kissinger didn’t approve of military intervention in the disputes.
Perhaps because of his intimate knowledge of China, he also didn’t regard “the Chinese claims
to the Paracels and Spratlys as evidence that Peking wished to dominate the region.”
The Memorandum also revealed that Philippine President Ferdinand Marcos wasn’t so happy
about the neutral stance of the Americans. Marcos used the Reed Bank, one of the disputed
features in the Spratly’s and one of the central features of the subject of the Philippines vs
China arbitration case, as a bargaining chip.
In the 70’s, during the re-negotiations of the US bases in the Philippines, Marcos wanted the
Americans to include the Reed Bank under the 1951 Mutual Defense Treaty. It was one of the
two issues that stalemated the military base negotiations — the other one is “the amount of
military assistance [the US] will offer in exchange for use of Philippine bases.” Marcos wanted
the Americans “for a clear written statement of whether we will respond under the Mutual
Defense Treaty if his forces are attacked while operating in the Reed Bank.”
Despite the Reed Bank being a disputed feature, Marcos “granted concessions to a private
consortium headed by [US-based] AMOCO to explore and drill for oil.” The Washington Post
reported that “several leading Manila entrepreneurs, including Marcos’ friend and in-law
Herminio Disini, have invested in the oil exploration” conducted with the Swedish and
Americans (14 March 1978, Washington Post). The US Embassy in Manila actually
“discouraged U.S. firms from exploration in [the] disputed area.” The US State Department
actually requested “AMOCO to use non-U.S. drill ship.” Frank Osment, the Vice President of
AMOCO, “did not commit himself…but said that it shouldn’t be too difficult to find foreign-flag
ship.”
As a way out of the negotiation stalement, both the US State and Defense department
recommended that the US “would consider Philippine units operating in the Reed Bank as
covered by…treaty ‘as long as their presence is consistent with the provisions of the Mutual
Defense Treaty, particularly Article I regarding peaceful settlement of disputes and refraining
from the threat or use of force.” This position gave the US some “flexibility.” It “neither expand
nor contract [the Defense Treaty] obligations; and allow [the US] to avoid the significant risks
that both of the other options present.”
The Reed Bank is once again implicated in the disputes. And one of the key players in the
Philippine move to file an arbitration case against China is connected to the company that got
gas and oil exploration in the Reed Bank: former foreign affairs secretary, Albert del Rosario.
Manuel V. Pangilinan is the chairman of Philex Mining Corporation, the company that has
60.49% stakes in Forum Energy. Forum Energy is London-based oil won a contract to explore
for oil in the Reed Bank. It has a 70% interest in Service Contract 72 , which covered part of
the Reed Bank; Enrique Razon’s Monte Oro Resources and Energy Inc. has the remaining 30
percent. Albert del Rosario was profiled by Inquirer as a “longtime business ally of tycoon
Manuel Pangilinan, as evidenced by his directorships [in several Pangilinan-controlled
companies including] Philex Mining Corp.” Mar Roxas, one of the 2016 presidential candidate,
actually has declared financial interests in Philex Mining Corporation. (http://bit.ly/29HVHIg).
In January 2013, the Inquirer reported that the Department of Energy “deferred to the
Department of Foreign Affairs the decision to grant permits concerning the exploration and
drilling activities at the highly contested Recto Bank because the area was part of the disputed
waters being claimed by China.” This effectively gave the authority to grant concessions on
Reed Bank to Albert del Rosario, the former director of Philex Mining Corporation, the partner
of the company that got the concessions, the London-based Forum Energy!
Albert del Rosario is touted as “the key strategist” of the Philippines approach towards China.
In December 2012, under his leadership, the Philippines “strongly” supported “a rearmed
Japan shorn of its pacifist constitution as a counterweight to the growing military assertiveness
of China.” He has been called “the brain of filing an arbitration case against China,” which the
Philippines filed in January 2013. He also spearheaded and defended “the PH-US Enhanced
PH-US Enhanced Defense Cooperation Agreement (EDCA),” concluded in April 2014. The
Military Times reported that EDCA paved “the way for a new permanent American military
presence across five bases that will support rotational deployments near the contested South
China Sea.” Antonio Bautista Air Base is among them, and it is “strategically located near the
contested Spratly Islands in the South China Sea.”
Albert del Rosario accomplished what Marcos failed to achieve for the Reed Bank. The Hague
tribunal declared the Reed Bank within the Exclusive Economic Zone of the Philippines and
found that “China had interfered with Philippine petroleum exploration at Reed Bank” and it
concluded that “China had violated the Philippines’ sovereign rights with respect to its
exclusive economic zone and continental shelf.” This gave the US, which now has an airbase
near the Reed Bank, a legitimate reason to intervene militarily in case China continued its
interference.
From the US’s neutral and prudent approach in the 70’s, the US is now more belligerent and
possesses a reason, legitimated by the Tribunal in The Hague, to get involved in the conflict.
And the most probable flashpoint of US-China armed conflict that would also involve Japan is
the Reed Bank, which is being explored and exploited by Pangilinan’s Philex Mining
Corporation, formerly helmed by Albert del Rosario. And indeed, Pangilinan is one of those
who rejoiced on the outcome of the arbitration case: he said his company is ready anytime to
resume operations in the Reed Bank, and they would possibly look for a new “foreign
partner.” US gets a presence in the South China Sea, the throat of China’s maritime-
dependent economy, Pangilinan gets to exploit the oil in the Reed Bank, with the guaranteed
protection of American and Japanese military, Roxas gets richer.
2. Assert it or Lose it. Ana Marie Pamintuan. Phil Star, December 17, 2018. 
The story is correct: Antonio Carpio thinks the Duterte administration did the right thing in
signing a memorandum to work out an agreement with a Chinese state-run company to
develop gas reserves in the West Philippine Sea.
The views of the senior associate justice of the Supreme Court matter not only because he is
an expert on the issue, but also because he was part of the team that successfully argued the
Philippines’ case against China before the Permanent Court of Arbitration in The Hague.
It has been clarified that what was signed by the two countries in Manila last month, witnessed
by President Duterte and his Chinese counterpart Xi Jinping, was a memorandum of
understanding to come up with an MOU that will pave the way for a service contract between
state-owned China National Offshore Oil Corp. (CNOOC) and Filipino private firm Forum
Energy to extract natural gas from Recto or Reed Bank.
The bank is one of three areas in the South China Sea that the United Nations-backed arbitral
court declared under international rules to be within the Philippines’ 200-mile exclusive
economic zone (EEZ), over which the country has sovereign rights and exclusive maritime
entitlements.
The other two areas are Ayungin or Second Thomas Shoal, where the rusty, war-vintage
Philippine Navy landing craft Sierra Madre sits like a beached whale, guarding the country’s
EEZ since 1999, and Panganiban or Mischief Reef off Palawan, said to be the most heavily
fortified of China’s artificial islands in the Spratlys.
Another area, Subi Reef, was declared part of the territory of Pag-asa Island, which the
Philippines administers as a barangay of Palawan. Panatag or Scarborough Shoal off
Zambales, whose occupation by China following a standoff in 2012 prompted the Philippines to
turn to international arbitration, was declared a common fishing ground over which no country
can exercise control.
And yet the Chinese are in control of the shoal, with their maritime militias driving away
whenever they see fit Filipino fishermen and pesky journalists.
Carpio believes that with the billions China has poured into creating an artificial island on
Panganiban, it would be unrealistic to expect Beijing to abandon the reef anytime soon, even
during the presidency of China-friendly Rodrigo Duterte.
So it’s significant that China has signed an MOU to come up with an MOU on the gas project. 
A service contract – if CNOOC agrees to it – would entitle the company to 50 percent of the
profits from the natural gas project. But it would constitute recognition of Philippine sovereign
rights over Recto Bank.
Carpio, who was our final guest for the year on One News / Cignal TV’s “The Chiefs” last
Friday, told us that in 2013, CNOOC and Forum Energy had already discussed the commercial
aspect of the gas project. But the talks fell through after China asked if it could collect taxes
from the venture. Taxation is a sovereign act.
A joint exploration means CNOOC would have part control of the project, which is
unconstitutional, Carpio explained. A service contract, on the other hand, will be similar to the
venture in Malampaya with Shell, which is 90 percent foreign-owned.
If China agrees to a service contract under the MOU that is still being worked out, “in effect it
will be admitting that we have sovereign rights. That’s why I like this,” Carpio told us.
Because the admission could set a precedent for China’s claims in the South China Sea,
however, Carpio is unsure if the service contract will push through: “China could still walk
back.”
But he says “you can’t eat sovereign rights,” and getting 50 percent of the income from the
project could be easier for Beijing to sell to its people.
Xi’s presence at the signing of the MOU – considered a stamp of approval – can also make it
tricky for Beijing to reverse what looks like a softening of its stance on the maritime dispute.
*      *      *
The aptly named Mischief Reef is a different story. “China is there as a squatter,” Carpio said,
but stressed that Filipinos have to be realistic about the situation. The Chinese, he noted, won’t
easily abandon a reef where they have poured in billions to create a fortified artificial island.
He favors the proposal of American marine ecologist John McManus, which is to declare a 50-
year moratorium on all maritime claims and create marine protected areas in the South China
Sea, to be jointly managed by a multinational team. This will be similar to a protected “marine
peace park” in the Red Sea jointly managed by Israel and Jordan.
This will allow fish to thrive, with China the biggest beneficiary, since its 1.4 billion people
consume 50 percent of all the fish caught in the South China Sea. In time, the Chinese can be
convinced that this can be in their long-term best interest, Carpio said.
Even if maritime claims are suspended, he explained, the arbitral ruling will remain valid, as
long as the Philippines doesn’t waive its victory, whether formally or by accident through a
public statement.
Carpio warns that loose lips can sink this victory. Under international rules, if the president or
the foreign secretary announces that the country is “setting aside” the arbitral ruling and China
announces that it is accepting this, it will constitute a waiver on the part of the Philippines.
Even if the president says the next day that something got lost in translation or he was simply
joking, China’s acceptance would seal the waiver. A withdrawal of the waiver would have to be
validated by the arbitral court.
Each year, Carpio said, the country must also do something to fortify its sovereign rights and
victory. 
Can war erupt over the dispute? Carpio said this goes against the Constitution and the United
Nations Charter, which also binds China. He stressed that even a verbal threat of waging war
to settle a dispute will violate the UN Charter.
“War is never an option,” Carpio said.
3. Arbitral Award. What we won what we lost. Loja/ Bagares. Inquirer, May
19, 2021. 
Presidential spokesperson Harry Roque’s recent statements over Julian Felipe Reef (JFR) evokes an
urgent need to take stock of what we won and lost before the South China Sea (SCS) Arbitral Tribunal.
Roque is correct that the Philippines does not physically possess JFR.
In fact, our lawyers even said in Annex 97 of our Memorial in the SCS arbitral proceedings that JFR is
occupied by China while also being claimed by Vietnam and the Philippines.
He is also correct that, per the coordinates our lawyers submitted to the Arbitral Tribunal, JFR is part of
the territorial sea (TS) of two High Tide Elevations (HTEs)ʍVietnam-held Sin Cowe Island and China-
held McKennan Reef.
HTEs are rocks unable to sustain human habitation and only generate a TS.
But against his statement that there is an overlap in maritime claims subject to delimitation, we say that
the TS of McKennan/Sin Cowe cannot be delimited by the EEZ of the Philippines, because the TS is
territory while the EEZ is not. Paragraph 177 of the Nicaragua v. Colombia arbitration before the
International Court of Justice (2012) affirms this. Consequently, the Arbitral Tribunal assumed
jurisdiction over the case in the absence of a delimitation issue.
We also disagree with him that our claim to JFR can still be maintained under Presidential Decree (PD)
1596, the 1978 law creating the Kalayaan Island Group (KIG).
PD 1596 created the KIG as an offshore archipelago by enclosing it with straight lines. However, PD
1596 did not name the features being claimed as part of the KIG.
Section 1 of the law states that within the KIG baselines, “the sea-bed, sub-soil, continental margin and
air space shall belong and be subject to the sovereignty of the Philippines. “ Yet the Arbitral Tribunal
nullified the baselines enclosing the KIG under PD 1596.
Paragraphs 574-575 of the Arbitral Award declared that any Philippine baselines enclosing the Spratly
Islands would violate the UN Convention on the Law of the Sea (Unclos). To maintain the straight
baselines of KIG under PD 1596 is to go against the Arbitral Award. There being no more straight
baselines identifying the KIG as an offshore archipelago, there is also no more physical basis for a
Philippine claim to JFR as part of the waters or seabed of the KIG. JFR is part of the seabed of the TS
of McKennan/Sin Cowe.
Can the Philippines make a claim to JFR based on the KIG as a regime of islands under Article 121 of
Unclos?
The 2009 baselines law (RA 9522) enclaved the KIG as a regime of islands. This means that the
individual features in the KIG shall generate individual maritime zones. Unfortunately, paragraph 407 of
the Arbitral Award declared Pag-asa Island as a rock whose 12-nautical-mile territorial sea would not
encompass JFR.
We gave up our claims to historic title in favor of the Unclos. That includes the TOP lines to which PD
1596 tacked the KIG baselines. The Arbitral Award noted in paragraph 223 that at the Unclos III
Conference, the Philippines “was the principal proponent of the concept of historic title,” employing it
“with respect to a claim (which it has since abandoned) to a territorial sea within the lines fixed by the
Treaty of Paris of 1898 between Spain and the [US] that governed the cession of the Philippines.”
Giving them up was the only way to convince the international community of the justness of our cause
against China’s expansive claims over the South China Sea.
It was the only way for us to win in the Arbitral Tribunal against China’s nine-dash line. It is never too
late for the Duterte administration and its opposition to craft a coherent strategy to immediately
implement our gains from the Arbitral Award.
But such a strategy cannot be made out of a fantabulist’s appreciation of the facts and law of the
Arbitral Award.

4. Archipelagic and Normal Baselines. Antonio Carpio. PDI,

August 12, 2021. 
The Philippines has adopted two types of baselines from which its maritime zones — territorial sea,
contiguous zone, exclusive economic zone, and extended continental shelf — are measured.
These two baselines are the archipelagic baselines for the Philippine archipelago and the normal
baselines for offshore islands under the Regime of Islands of the UN Convention on the Law of the
Sea (Unclos). Republic Act No. 9522 delineates the segments of our archipelagic baselines, the
distances between segments, their basepoints and geographical coordinates — all comprising the
fundamental system for our archipelagic baselines. RA 9522 also identifies our two island
territories that are governed by the Regime of Islands, namely the Kalayaan Island Group (KIG)
and Scarborough Shoal.
The drawing of archipelagic baselines requires legislation because the fixing of the segments and
basepoints to maximize our archipelagic waters is a state policy issue which falls under the
legislative power of Congress. The drawing of normal baselines to maximize our internal waters
where low-tide features exist also requires legislative authority. That legislative authority is
embodied in Unclos, which the Philippines ratified in 1984 and now forms part of Philippine
domestic law. Article 5 of Unclos provides that “the normal baseline xxx is the low-water line along
the coast as marked on large-scale charts officially approved by the coastal state.” Moreover,
Article 6 of Unclos provides, “In the case of islands situated on atolls xxx, the baseline xxx is the
seaward low-water line of the reef, as shown by the appropriate symbol on charts officially
recognized by the coastal state.”
Under Article 121 of Unclos, the determination of the baselines of geologic features under the
Regime of Islands shall be the same as that “applicable to other land territory,” which means the
normal baselines under Article 5 or 6 of Unclos. Since Unclos forms part of Philippine domestic
law, we have already an existing law authorizing the drawing of normal baselines for the KIG
islands and Scarborough Shoal. There is absolutely no need for new legislation to draw the
baselines for the KIG islands and Scarborough Shoal. All that is needed is for the relevant
Philippine agency to issue the nautical charts showing the normal baselines of the KIG islands and
Scarborough Shoal.
Under the Charter of the National Mapping and Resource Information Agency (Namria), the agency
is tasked to “produce the hydrographic and nautical charts vital to sea and water travel as well as
the exploitation of our marine resources.” Namria is the proper government agency that should be
making the nautical charts showing the normal baselines of the KIG islands and Scarborough
Shoal. Unclos requires that these nautical charts should be duly published and deposited with the
Secretary-General of the United Nations to bind all parties to Unclos. The drawing of normal
baselines in nautical charts, including their official publication and deposit with the United Nations,
is also part of customary international law and will bind even those few states that have not ratified
Unclos, like the United States.
There is therefore no need to enact a new baselines law as proposed by retired Justice Francis
Jardeleza and lawyers Romel Bagares and Melissa Loja just to enforce the Arbitral Award of July
12, 2016. A new baselines law enacted by Congress will not bind parties to Unclos and those that
have not ratified Unclos. Foreign states will not recognize our domestic laws. What they will
recognize are acts that implement customary international law, or acts that implement treaties or
conventions to which they are parties. What will bind them will be the official issuance, publication,
and deposit by the Philippine government of nautical charts showing our baselines in these islands.
To enact a new baselines law just to draw normal baselines around our KIG islands and
Scarborough Shoal is to reinvent the wheel in a circuitous way. What President Duterte should do
is to instruct Namria to issue the official nautical charts showing the baselines of our KIG islands
and Scarborough Shoal. This is the most practical way to notify and bind other states to our
baselines in these islands. But would President Duterte dare to displease his beloved President Xi
Jinping by ordering the issuance of such nautical charts?

5. China does not possess the WPS. Antonio Carpio.PDI, May 20, 2021. 
President Duterte’s mantra is “China is in possession of the West Philippine Sea (WPS).” The
President made this declaration on several occasions: the November 2018 Asean-India Summit in
Singapore, his July 2019 and 2020 State of the Nation Addresses, and his late-night TV addresses
on April 19, 2021 and April 29, 2021. The reason for this extraordinary concession is the
President’s professed love for President Xi Jinping, who has promised to protect President Duterte
from mutinies by the Philippine military. Ironically, President Xi is the acknowledged architect of
China’s invasion of the WPS.
Under Administrative Order No. 29 dated Sept. 5, 2012 (AO29), the WPS refers to a vast body of
water facing the South China Sea. AO29 provides: “The maritime areas on the western side of the
Philippine archipelago are hereby named as the West Philippine Sea. These areas include the
Luzon Sea as well as the waters around, within and adjacent to the Kalayaan Island Group and
Bajo De Masinloc, also known as Scarborough Shoal.” The WPS includes the Philippines’ territorial
sea and exclusive economic zone (EEZ) measured from our archipelagic baselines, a maritime
area larger than the total land area of the Philippines.
The President’s mantra has grave ramifications on Philippine national interest.
First, the President is even conceding that China is in possession of our territorial sea in the WPS.
China does not claim our territorial sea because China’s nine-dash line does not overlap our
territorial sea measured from our archipelagic baselines. The President is generously giving to
China far more than what China wants.
Second, the WPS includes our entire EEZ facing the South China Sea. The Arbitral Award of July
12, 2016 affirmed that the Philippines has an EEZ facing the South China Sea unimpaired by
China’s nine-dash line. The Philippines has exclusive right to exploit all the living and non-living
resources in this EEZ—all the fish, oil, gas, and other mineral resources found in this EEZ. By
conceding to China possession of the WPS, the President is sending a message to Filipino
fishermen that it is not safe to fish in the WPS because another state with a powerful navy is
already in possession of the WPS. Since the President has allowed Chinese fishermen to fish in
the WPS, the Chinese fishermen, with their huge trawlers in the hundreds, practically have the
WPS all to themselves. Filipinos now import expensive galunggong from China, whose fishermen
scoop the galunggong from what under international law is our exclusive fishing grounds in the
WPS
The President is also sending a message to oil and gas companies with Service Contracts from the
Philippine government that China is in possession of the areas covered by their service contracts.
Thus, these companies assume the risk of being fired upon by Chinese coast guard vessels under
China’s new coast guard law. No company will now exploit oil and gas in the WPS under a
Philippine Service Contract.
Since Malampaya will run out of gas in the next two to three years, we will have to import
expensive liquified natural gas to feed our gas-fired plants in Batangas which provide 40 percent of
the energy requirement of Luzon. This will result in higher electricity cost to consumers and
businesses.
Third, by conceding that China is in possession of the WPS, the President, who is the Commander
in Chief of the Armed Forces, is discouraging the Philippine Navy and the Coast Guard from
patrolling the WPS. This is a violation of the Constitutional mandate that the “State shall protect the
nation’s marine wealth in its xxx exclusive economic zone.”
The President’s mantra that “China is in possession of the WPS” is totally false. First, China is
physically in possession of only eight geologic features in the Spratlys plus Scarborough Shoal.
The total area of all these features is less than seven percent of the WPS. Second, the navies of
the US, UK, France, Japan, and Australia regularly conduct naval drills in our EEZ in the WPS,
powerfully exposing as a blatant lie the President’s mantra. All Filipinos must now demand that the
President retract his false mantra that “China is in possession of the WPS.”

6. Dueling Note Verbales. Antonio Carpio. PDI, September 10, 2020. 

On Dec. 12, 2019, Malaysia filed a Note Verbale with the United Nations Secretary General
asserting its extended continental shelf (ECS) claim from its coastline in North Borneo facing the
South China Sea. The ECS refers to the area beyond the 200-nautical-mile exclusive economic
zone of a coastal state. It is the second ECS claim filed by Malaysia in the South China Sea, the
first being its joint submission with Vietnam filed on May 6, 2009.
The ECS claims of Malaysia are, under the United Nations Convention on the Law of the Sea,
without prejudice to the ECS claims of other coastal states which may overlap with Malaysia’s ECS
claims. The overlapping ECS claims must be filed with the UN Secretary General and settled
through negotiation or arbitration. The latest ECS claim of Malaysia is yet another reminder to the
Philippines to file its own ECS claims facing the South China Sea. The Duterte administration,
however, does not intend to file any ECS claim for fear of offending China.
On March 6, 2020, the Philippines responded to this latest Malaysian ECS claim by stating in a
Note Verbale that the Malaysian claim overlaps with the Philippines’ ECS claim for which the
Philippines “intends to make a submission at a future time.” The Philippines’ Note Verbale,
Moreover, protested that the latest Malaysian ECS claim “is projected from portions of North
Borneo over which the Republic of the Philippines has never relinquished its sovereignty.”
On Aug. 27, 2020, Malaysia responded by rejecting in its Note Verbale the claim of the Philippines
to North Borneo. Malaysia, moreover, asserted that “Malaysia rejects the excessive maritime
claims arising from the Kalayaan Island Group as asserted by the Republic of the Philippines as
they have not conformed to Part IV of UNCLOS 1982 and have no basis under international law.”
Sadly, the Philippines and Malaysia are both grossly mistaken in their assertions.
First, the Philippines’ Sabah claim has nothing to do with the South China Sea dispute. The
territory of the Sultanate of Sulu in North Borneo never faced the South China Sea but faced only
the Sulu Sea and the Celebes Sea. This is clear from various 18th- and 19th-century maps of the
territory of the Sultanate of Sulu in North Borneo.
Thus, the Philippines cannot claim any maritime zone facing the South China Sea as successor to
the territory of the Sultanate of Sulu in North Borneo.
Second, while the Philippines did claim under Republic Act No. 3046 straight baselines around its
Kalayaan Island Group (KIG), the Philippines changed this by enacting in 2009 RA 9522 which
classified the KIG as a “Regime of Islands.” Section 2 of RA 9522 expressly states that the
baselines of the KIG “shall be determined as ‘Regime of Islands’ xxx consistent with Article 121 of
the United Nations Convention on the Law of the Sea.” This abandoned the straight baselines
embodied in RA 3046.
The Philippines informed the arbitral tribunal at The Hague of the enactment of RA 9522 in this
manner: “The Philippine Supreme Court confirmed the constitutionality of Republic Act No. 9522. In
a decision handed down in 2011, the Philippine Supreme Court held that the Philippines had no
alternative but to adopt the maritime claims reflected in the Act because this was ‘in conformity with
UNCLOS III.” In its Award of July 12, 2016, the arbitral tribunal stated, “In the Tribunal’s view, any
application of straight baselines to the Spratly Islands in this fashion would be contrary to the
Convention.” This is a fair warning to China, which has threatened to declare straight baselines to
enclose its claim to the entire Spratlys, in the same way it has declared straight baselines to
enclose the Paracels.
All these dueling Notes Verbales between the Philippines and Malaysia are sound and fury
signifying nothing. The Philippines and Malaysia have apparently fallen prey to the intrigues of
Chinese operatives, who have been active through their trolls, to inject the Philippines’ Sabah claim
to the South China Sea dispute. In these dueling Notes Verbales, both the Philippines and
Malaysia lost. China won, preventing two Asean states encroached by its nine-dash line from
forming a united front.

7. Scarborough Shoal. Antonio Carpio. PDI, July 23, 2020. 

The core issue of the South China Sea dispute is China’s unlawful claim to maritime areas beyond
what the United Nations Convention on the Law of the Sea (Unclos) allows. Under China’s nine-
dash line, five Asean coastal states—the Philippines, Vietnam, Malaysia, Brunei, and Indonesia—
will lose large areas of their exclusive economic zones (EEZs) guaranteed to them as their inherent
right under Unclos. As coastal states, these Asean five are entitled to EEZs ipso facto or by the
mere fact that they have a land mass facing the South China Sea.
The Philippines stands to lose in the West Philippine Sea a maritime area larger than its total land
area. Vietnam will become an almost land-locked state because China’s nine-dash line runs
through the entire length of Vietnam’s coastline facing the South China Sea. Brunei will become a
totally land-locked state and will lose a maritime area larger than its land area.
Unclos allows a coastal state to claim a maritime zone not exceeding 350 nautical miles from its
coastline. China is claiming up to 1,000 nautical miles from its coastline in Hainan Island, even
claiming the high seas of the South China Sea. Under Unclos, the high seas are the common
heritage of mankind, belonging to no state.
Now, China is threatening to declare an air defense identification zone or Adiz in the airspace
above the vast maritime area enclosed by its nine-dash line, comprising 85.7 percent of the South
China Sea. China needs a triangle of air and naval bases within this huge maritime area to enforce
its Adiz. China already has air and naval bases in the Spratlys and the Paracels. China needs to
put up an air and naval base in Scarborough Shoal to effectively enforce its Adiz.
Scarborough Shoal is now at the center of the South China Sea dispute. This shoal is named
Panacot in the 1734 Velarde-Bagay-Suarez map, an official Spanish map showing Philippine
territory in 1734. The shoal also appears as B. Masinloc in the 1899 Jose Algue map, the first
official map of Philippine territory released by the US Coast and Geodetic Survey in Washington
DC during the American regime. There is no older map from China showing that Scarborough
Shoal is Chinese territory. The first Chinese map showing Scarborough Shoal is the infamous 1947
nine-dash-line map of China, and even this map only shows the shoal as a dot without a name.
When the Philippine-US Mutual Defense Treaty was signed in 1951, both parties knew that
Scarborough Shoal was part of Philippine territory and thus covered by the treaty. In March 2016,
US satellites monitored Chinese dredgers from Guangdong steaming toward Scarborough Shoal.
President Obama called President Xi Jinping to warn him that there would be “serious
consequences” should China reclaim Scarborough Shoal. The Chinese dredgers turned back.
Although the US did not officially announce it at that time, Scarborough Shoal had become a
redline for the US.
In May 2018, then Foreign Affairs Secretary Alan Peter Cayetano officially announced that
Scarborough Shoal was a redline for the Philippines. “Our redline is that they cannot build on
Scarborough,” Cayetano declared during a flag-raising ceremony at the Department of Foreign
Affairs.
Recently, last July 14, 2020, US Assistant Secretary of State for the Bureau of East Asian and
Pacific Affairs David Stilwell officially announced that Scarborough Shoal was a redline for the US.
Stilwell declared: “Any move by the PRC [People’s Republic of China] to physically occupy,
reclaim, or militarize Scarborough Shoal would be a dangerous move on the part of the PRC and
will have lasting and severe consequences for the PRC’s relationship with the Unites States as well
as the entire region.”
Any reclamation by China of Scarborough Shoal will be the last nail on the coffin of the 2002
Declaration on the Conduct of Parties (DOC) between Asean and China. The DOC states that
“the Parties undertake to xxx refraining from action of inhabiting on the presently uninhabited
islands, reefs, shoals, cays, and other features.” Such reclamation will not only kill the DOC but
also abort the long-running negotiations for the Code of Conduct, which is supposed to
implement the DOC. Scarborough Shoal is now a redline for everyone.

8. The territorial dispute in the Spratlys. Antonio Carpio. PDI, April 15,

2021. 
There are two kinds of dispute in the Spratlys, the territorial dispute and the maritime dispute. The
territorial dispute involves the issue of sovereignty over the geologic features above water at high
tide and their surrounding territorial seas. The maritime dispute involves the economic right to
exploit the resources in the waters and seabed beyond the territorial seas.
The maritime dispute has been resolved with finality by The Hague arbitral tribunal in the South
China Sea Arbitration. The territorial dispute, however, remains outstanding.
The Philippines should now invite the states involved in the territorial dispute in the Spratlys to
submit the dispute to a binding voluntary arbitration before the International Court of Justice. Under
the UN Charter, territorial disputes must be settled peacefully by negotiation, then by mediation,
and if still unresolved, then by arbitration. The territorial dispute in the Spratlys has been festering
since the 1970s and it is high time to settle the dispute through voluntary arbitration. The parties to
the territorial dispute are China, Vietnam, the Philippines, Malaysia, and Brunei. The Philippines
should initiate now the Spratlys Arbitration because, like in the South China Sea Arbitration, the
Philippines has a very strong case.
First, the Philippines has the oldest documentary evidence of sovereignty over the Spratlys—the
1734 Murillo Velarde map showing that the official territory of the Philippines during the Spanish
colonial regime included the Spratlys, then called Los Bajos de Paragua. There is no older map
from China, Vietnam, Malaysia, or from any other country, showing that the Spratlys formed part of
their territory.
Second, under the 1898 Treaty of Paris as amended by the 1900 Treaty of Washington, Spain
ceded the Spratlys to the United States. The Treaty of Washington states that Spain also ceded to
the US “all title and claim of title, which (Spain) may have had xxx to any and all islands belonging
to the Philippine Archipelago xxx lying outside the lines” of the Treaty of Paris. The frame of
reference of the phrase “all islands belonging to the Philippine Archipelago xxx lying outside the
lines” is the 1734 Murillo Velarde map, which showed the Spratlys as part of Philippine territory. All
states involved in the territorial dispute have recognized the Treaty of Paris and the Treaty of
Washington, with China even mentioning these treaties with approval in its official communications.
Third, the 1657 map of the Philippines made by Nicolas Sanson clearly shows the Spratlys as part
of Philippine territory. Sanson was the Royal Cartographer of King Louis XIII of France. When
France annexed the Spratlys in 1933, France knew that the Spratlys were no longer terra nullius.
Besides, Vietnam cannot use the 1933 French annexation because France annexed the Spratlys
not as part of its Indochina colony but as part of the overseas territories of the French Union,
whose inhabitants are French citizens who could vote in all French elections.
Fourth, China can no longer use the notorious nine-dash line to claim the Spratlys because these
lines have been exposed as without legal or factual basis in the South China Sea Arbitration. China
first claimed the Spratlys only in 1947 when it released officially within China its nine-dash line
map. China is a late claimant, and a late occupant, to the Spratlys.
Fifth, under the international law doctrine of uti possidetis, the boundaries of colonies are
sacrosanct and could not be changed to the prejudice of the independent states that emerged from
those colonies. Thus, in the Mauritius case, the United Nations General Assembly, following the
legal opinion of the International Court of Justice, voted 116-6 last May 22, 2019, that the United
Kingdom should return the Chagos Archipelago to Mauritius. The Chagos Archipelago was
detached from Mauritius by the UK prior to the independence of Mauritius. Similarly, the Spratlys
cannot be detached from the Philippines since the Spratlys were part of Philippine territory during
the Spanish and American colonial regimes.
If the other claimant states reject the request of the Philippines for voluntary arbitration, then the
Philippines can just wait for sea level rise to submerge the Spratlys in the next 100 years. The
submerged areas will then form part of the exclusive economic zone of the Philippines.

9. Tiny Sandy Cay reveals the big lie. Antonio Carpio. PDI, May 12, 2021. 
There is a tiny sandbar called Sandy Cay about two nautical miles from Pag-asa Island, which at
about 37 hectares is the largest Philippine-occupied island in the Spratlys. Before 2017, Sandy Cay
was a disappearing sandbar. Half of the year Sandy Cay would be above water at high tide when
the action of the waves build up the sand on the cay. The other half of the year, when the storms
disperse the sand, Sandy Cay would be submerged at high tide.
In early 2017, Sandy Cay became permanently above water at high-tide due to sand, from
pulverized corals, that drifted into the cay from the submerged Subi Reef about 10 nautical miles
away. China had pulverized the corals in Subi Reef to build an artificial island, more than seven
times larger than Pag-asa Island. At this point, China decided to seize Sandy Cay to nullify the
ruling in the July 12, 2016 Arbitral Award that Subi Reef is part of the territorial sea of Pag-asa
Island. Subi Reef is now a Chinese naval base with an airstrip.
As a natural geologic feature permanently above water at high tide the whole year round, Sandy
Cay indisputably became in 2017 an island territory entitled to its own 12 nautical mile territorial
sea that includes Subi Reef. Sandy Cay sliced away one-third of the territorial sea of Pag-asa
Island, which lost a territorial sea more than three times the land area of Quezon City. China’s
seizure of Sandy Cay in 2017 was clearly a loss of a Philippine island territory during the Duterte
administration.
However, the Duterte administration to this day denies that China had seized Sandy Cay in 2017.
The Duterte administration is boasting that its friendly policy toward China has been rewarded with
desistance by China from seizing more island territories from the Philippines. To admit the loss of
Sandy Cay would expose to the nation the bankruptcy of the Duterte administration’s pro-China
policy.
When I stated to media that the Philippines had lost Sandy Cay to China during the Duterte
administration, National Security Adviser Hermogenes Esperon issued a denial. Esperon declared:
“’Yung sinasabi ni Justice Carpio na nawala natin ang Sandy Cay, hindi totoo ’yon. Mali si Justice
Carpio, fake news, false news.” Presidential spokesperson Harry Roque seconded, saying “No
island in our country has been lost under President Duterte’s administration.”
However, all the residents in Pag-asa Island know that China had seized Sandy Cay from the
Philippines in early 2017. Kalayaan Municipal Mayor Roberto del Mundo, who lives and holds office
in Pag-asa Island, has an Inquirer interview in YouTube (“Chinese boats deny Pinoy access to
sandbars”) that anyone can view any time. In this seven-minute video interview, Mayor Del Mundo
narrates:
“Hindi na kami makalapit, ginagwardyahan na nila doon, nandoon na sila (Chinese Coast Guard
vessels), hindi na umaalis, doon na sila umaga, maghapon, at gabi doon na sila, hindi na sila
umaalis. Ibig sabihin kanila ’yun, hindi na umaalis, xxx d’yan na lahat sila naka pondo, araw gabi,
d’yan na sila talaga.”
Clearly, China had seized Sandy Cay in 2017 during the Duterte administration in the same way
that China seized Scarborough Shoal in 2012 during the Aquino administration, by surrounding
Sandy Cay with Chinese Coast Guard and maritime militia vessels. The Department of Foreign
Affairs should have filed a formal diplomatic protest against China for the seizure of Sandy Cay.
A diplomatic protest is necessary to prevent the Philippines from being bound by the doctrine of
acquiescence. Unless the Philippines files a protest, it will be consenting to the seizure and will
lose forever the legal right to recover Sandy Cay. Thus, I hope that the DFA did file a protest but is
just keeping silent about it to prevent embarrassing the Duterte administration that its pro-China
policy is an abject failure.
Tiny Sandy Cay has revealed the big lie of the Duterte administration that “No island in our country
has been lost under President Duterte’s administration.” Undeniable proof of the loss of Sandy Cay
to China during the Duterte administration is available in YouTube for the whole world to see every
day

10. The 1734 Murillo Velarde Map. Antonio Carpio. PDI, June 10, 2021. 

Although China refused to participate in the South China Sea Arbitration at The Hague, China
submitted to the arbitral tribunal a Position Paper. China stated in its Position Paper that Philippine
territory is governed by three international treaties, one of which is the little known 1900 Treaty of
Washington.
In recognizing and accepting that three treaties define and delineate Philippine territory, China’s
Position Paper quoted verbatim Article 1 of the 1935 Philippine Constitution: “The Philippines
comprises all the territory ceded to the United States by the Treaty of Paris concluded between the
United States and Spain on the tenth day of December, eighteen hundred and ninety-eight, the
limits which are set forth in Article III of said treaty, together with all the islands embraced in the
treaty concluded at Washington between the United States and Spain on the seventh day of
November, nineteen hundred, and the treaty concluded between the United States and Great
Britain on the second day of January, nineteen hundred and thirty, and all territory over which the
present Government of the Philippine Islands exercises jurisdiction.”
The purpose of China’s Position Paper was to show that Philippine territory is limited to the islands
enclosed by the polygonal lines drawn in the 1898 Treaty of Paris. The Spratly Islands and
Scarborough Shoal are clearly outside the western side of the polygonal lines of the Treaty of
Paris. China’s Position Paper concludes, “[T]he territory of the Philippines was confined to the
Philippine Islands, having nothing to do with any of China’s maritime features in the South China
Sea.” Under its nine-dash line, China claims as its territory the Spratly Islands and Scarborough
Shoal. The Chinese, however, failed to read carefully the text of the Treaty of Washington.

When the Americans surveyed the Philippine Islands after signing the Treaty of Paris, they found
out that there were many islands belonging to the Philippine archipelago lying outside the
polygonal lines of the Treaty of Paris. Some islands in the Batanes, Scarborough Shoal, “Los Bajos
de Paragua” or the Spratly Islands, and other islands were outside the lines of the Treaty of Paris.
The Americans asked the Spaniards to sign another treaty clarifying that the cession in the Treaty
of Paris included all other islands belonging to the Philippine archipelago even if lying outside the
lines of the Treaty of Paris. The Spaniards refused to sign a clarificatory treaty.
The Spaniards, however, relented after the Americans offered to pay an additional US$100,000 on
top of the US$20 million that the Americans paid the Spaniards for the Treaty of Paris. Thus, the
Treaty of Washington was signed, wherein Spain clarified: “Spain relinquishes to the United States
all title and claim of title, which she may have had at the time of the conclusion of the Treaty of
Peace of Paris, to any and all islands belonging to the Philippine Archipelago, lying outside the
lines described in Article III of that Treaty xxx and agrees that all such islands shall be
comprehended in the cession of the Archipelago as fully as if they had been expressly included
within those lines.”
Clearly, under the Treaty of Washington, Spain ceded to the US “all title and claim of title xxx to
any and all islands belonging to the Philippine Archipelago, lying outside the lines” of the Treaty of
Paris. What are those islands belonging to the Philippine archipelago lying outside the lines of the
Treaty of Paris? The frame of reference could only be the 1734 Carta Hydrographica y
Chorographica de las Islas Filipinas map made by Father Pedro Murillo Velarde, which was the
only official map of Philippine territory during the Spanish colonial regime. The 1734 map clearly
shows that the Spratly Islands, named Los Bajos de Paragua in the map, as well as Scarborough
Shoal, named Panacot in the map, were part of “las Islas Filipinas” constituting the Philippine
archipelago during the Spanish regime.
Having recognized and accepted the Treaty of Washington, China is legally bound by its provision
that Spain ceded to the US “all islands belonging to the Philippine Archipelago, lying outside the
lines” of the Treaty of Paris. And the best evidence of what those outlying islands are is the 1734
map of Father Pedro Murillo Velarde.

11. COC on the SCS. Jarius Bondoc, Phil Star, August 2, 2017. 

12. Carpio refutes Duterte on EEZ. Statement of Justice Carpio on June 25,
2021. Rappler.com. 
(3rd UPDATE) 'No government official can waive this sovereign right of the Filipino people
without their consent,' says Justice Antonio Carpio
MANILA, Philippines (3rd UPDATE) – Supreme Court Senior Associate Justice Antonio Carpio
refuted the Duterte government on Tuesday evening, June 25, and said it cannot allow
Chinese fishermen to fish in the West Philippine Sea.
Carpio issued this statement after Malacañang, interpreting President Rodrigo Duterte, said
the Philippines "will allow" China to fish in the West Philippine Sea "because we're friends."
"The Philippine government cannot allow Chinese fishermen to fish in Philippine exclusive
economic zone (EEZ) in the West Philippine Sea because it will violate the Constitution," said
Carpio, one of the Philippines' leading experts on the West Philippine Sea.
He added: "The Constitution mandates, 'The State shall protect the nation's marine wealth in
its...exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino
citizens.' This means that the Philippine government cannot allow Chinese fishermen to fish in
our EEZ in the West Philippine Sea. This also means that the 'use and enjoyment' of the fish in
our EEZ is reserved exclusively to Filipinos."
The West Philippine Sea is part of the South China Sea that belongs to the Philippines based
on a 2016 international ruling.
The West Philippine Sea issue heated up again after a Filipino fishing boat was sunk by a
Chinese ship in Recto Bank (Reed Bank), a potentially oil-rich region in the country's waters.
'Because we're friends'
Duterte addressed the Recto Bank incident in an interview with reporters on Monday, June 24.
A journalist asked the President: "Will you prevent China from fishing within our EEZ? Iyong
pwede po bang… kasi 'yun 'yung request ng mga fishermen?" (Will you prevent China from
fishing within our EEZ? Can it be... because that's the request of the fishermen?)
Duterte answered: "I don't think that China would do that. Why? Because we're friends. And
they are of the same view that that should not result in any bloody confrontation."
Interpreting Duterte's words, Presidential Spokesperson Salvador Panelo said on Tuesday:
"He said they will not allow it, but as far as they're concerned, they have historical right to that.
Number two, we will allow it kasi we're friends naman, 'di magbigayan muna tayo – parang
ganoon ang punto ni Presidente (because we're friends, so let's give way to each other – that
seems to be the President's point)."
Carpio in his statement Tuesday stressed the role of Duterte as Commander-in-Chief.
"The Commander-in-Chief of the Armed Forces is the President, who has the constitutional
duty to direct the Armed Forces to protect the nation’s marine wealth in its exclusive economic
zone," said the justice
Carpio pointed out, too, that an international tribunal "ruled with finality" in 2016 that the
Philippines "has 'jurisdiction' over its exclusive economic zone in the West Philippine Sea,
including the Reed Bank."
"The Philippines has exclusive sovereign right to exploit all the fish, oil, gas and other mineral
resources in its exclusive economic zone. This sovereign right belongs to the Filipino people,
and no government official can waive this sovereign right of the Filipino people without their
consent," Carpio said. – Rappler.com

13. Carpio suggests formula for enforcing Arbitral Award. Statement of

Justice Antonio Carpio, Philstar, July 15, 2019. 

MANILA, Philippines — Responding to the challenge of President Rodrigo Duterte, Supreme

Court Senior Associate Justice Antonio Carpio enumerated ways to enforce the Philippines'
arbitral victory without going to war.
The president has been consistent on his position that the country will not go to war with China
over the West Philippine Sea row.
Agreements with other claimant states
Carpio's first two suggestions were entering into sea boundary agreements with Vietnam and
Malaysia.
Manila can enter into an agreement with Hanoi on overlapping extended continental shelves
beyond the Spratlys Islands and with Kuala Lumpur on the adjoining exclusive economic
zones (EEZs) between Borneo and Palawan.
The senior magistrate noted Vietnam had already proposed a sea boundary agreement but the
Duterte administration has not acted on it due to fear of offending China.
The Philippines, along with Vietnam, Malaysia, Indonesia and Brunei, can also enter into a
convention that no geologic feature in the Spratlys generate an EEZ, leaving China the lone
claimant claiming EEZ over the area.
"This convention can be open to accession by all coastal states of the world so that their right
to freedom of navigation and overflight in the Spratlys can be governed by this convention,"
Carpio said.
Extended Continental Shelf claim
According to Carpio, the Philippines can file an extended continental sheld claim in the West
Philippine Sea beyond the 200-nautical mile EEZ off the coast of Luzon before the UN
Commission on the Limits of the Continental Shelf.
China is the only opposite coastal state in that area but it cannot invoke historic rights as it had
already been ruled out by the arbitral tribunal.
The UN commission will likely grant the extended continental shelf claim of the Philippines,
similar with the case of Benham or Philippine Rise.
"This will fortify and enforce, in accordance with the rule of law, the ruling in the arbitral award
that in the West Philippine Sea the Philippines has a full 22-nautical mile EEZ, from the outher
limits of which the 150-nautical mile extended continental shelf of the Philippines is measured,"
Carpio said.
Send Coast Guard vessels to EEZ
The Philippines should send the coast guard's new multi-role response vessels to patrol the
country's EEZ in the West Philippine Sea, 
The 10 vessels donated by Japan could also be used to drive away poachers from other
countries.
This move will also assert the country's soverieng rights over Philippine EEZ in accordance
with the UN Convention on the Law of the Sea.
Encourage, welcome FONOPs with other countries
Aside from welcoming freedom of navigation and overflight operations (FONOPs) of other
countries in the South China Sea, the Philippines could send its own navy to join these
operations.
The United States, the United Kingdom, France, Australia, Japan, India and Canada have
been conducting naval and aerial operations in the South China Sea, including the West
Philippine Sea.
Sending the Philippine Navy to join naval powers' FONOPs in the disputed waterway would
also enforce the arbitral award.
The Philippines could also conduct joint FONOPs with Southeast Asian neighbors such as
Vietnam, Malaysia, Indonesia and Brunei on their respective EEZs facing the South China
Sea, Carpio added.
"All these naval and aerial operations, whether conducted by the naval powers or by the
ASEAN coastal states, uphold that there are high seas in the South China Sea, and around
these high seas are the exclusive economic zones of the adjacent coastal states," Carpio said.
The justice noted that the Duterte administration has been decrying the lack of enforcement
mechanism of the UNCLOS but refuses to join naval powers that enforce the ruling.
Support private sector in enforcing arbitral award
Carpio's last suggestion was for the Philippine government to support private individuals
enforcing the landmark ruling.
Earlier this year, former Foreign Affairs Secretary Albert del Rosario, former Ombudsman
Conchita Carpio Morales and their counsel Anne Marie Corominas submitted a communication
before the International Criminal Court (ICC).
The three of them accused Chinese President Xi Jinping and other Chinese officials of crimes
against humanity for the massive destruction of the marine environment in the West Philippine
Sea.
The Philippines had withdrawn from the Rome Statute that established the ICC but the
complaint was filed before the withdrawal took effect.
If the ICC decides that it has jurisdiction over the case, "this will fortify and enforce the arbitral
award," Carpio said.
Having said these measures, Carpio reiterated that the threat of going to war was meant to
scare Filipinos into submitting to China.
"This false option should be discredited once and for all. This false option does not deserve
any further space or airing in the nation's political discourse," he said.

14. Joint Development vs Cooperation Agreement. Antonio Carpio. PDI,

July 15, 2021.  
On the website of China’s Ministry of Foreign Affairs, one finds this definition of China’s concept of joint
development: “The concept of ‘setting aside dispute and pursuing joint development’ has the following
four elements: 1. The sovereignty of the territories concerned belongs to China. xxx.” China has offered
this concept of joint development to maritime areas within the exclusive economic zones of Asean
coastal states falling within China’s nine-dash line. No Asean coastal state, however, has accepted
China’s offer of joint development. To accept China’s offer is to concede sovereign rights to China over
the overlapping maritime areas.
Under China’s concept of joint development, China has either sovereignty or sovereign rights over the
area covered by the joint development. Naturally, our lawyers in the arbitration at the The Hague
avoided any discussion on joint development because China has appropriated that term and given it a
particular meaning. More importantly, in maritime disputes between states, joint development is
resorted to by the parties in case of overlapping exclusive economic zones. The Philippine position,
however, is that there are no overlapping exclusive economic zones between the Philippines and
China. To concede such overlapping exclusive economic zones would automatically mean the
dismissal of the arbitration case because China in 2006 opted out of compulsory arbitration in case of
overlapping maritime zones. If there is any overlapping exclusive economic zones between the
Philippines and China, the arbitral tribunal would have no jurisdiction to hear our arbitration case.
Sometime in 2018, China proposed to the Philippines joint development on oil and gas in maritime
areas in the West Philippine Sea falling within China’s nine-dash line. Of course, we could not accept
such proposal because China’s nine-dash line had already been invalidated in the landmark 12 July
2016 Arbitral Award, which recognized that the Philippines has a full exclusive economic zone in the
West Philippine Sea unimpaired by China’s nine-dash line. However, Foreign Affairs Secretary Teodoro
Locsin, Jr. wisely took this as an opportunity to make a brilliant counter-offer. Secretary Locsin sent
back to the Chinese his own draft of a “cooperation arrangement” on exploiting oil and gas in the West
Philippine Sea. Secretary Locsin’s draft made no reference whatsoever to “joint development.”
Under Secretary Locsin’s draft, “the two governments have decided to negotiate on an accelerated
basis arrangement to facilitate oil and gas exploration and exploitation in relevant maritime areas
consistent with applicable rules of international law (hereinafter referred to as ‘the cooperation
arrangements’).”
Crucially, Secretary Locsin’s draft further stated: “China authorizes China Offshore Oil Corporation
(CNOOC) as the Chinese enterprise for each Working group. The Philippines will authorize the
enterprise(s) that has/have entered into a service contract with the Philippines with respect to the
applicable working area xxx.” In short, the state-owned CNOOC will enter into an arrangement with a
Philippine service contractor, either as a subcontractor or equity partner, or both. These two provisions
in Secretary Locsin’s draft were accepted by China in the Memorandum of Understanding (MOU)
signed on Nov. 27, 2018. The MOU never mentions the term “joint development.”
The first whereas clause of every service contract awarded by the Philippine government states that the
oil and gas belong to the Philippines. Another provision states that Philippine law will govern the service
contract. These two critical provisions establish firmly that the Philippines has sovereign rights over the
maritime areas covered by the “cooperation arrangements.” China’s signature to the MOU is
acceptance of Philippine sovereign rights over the West Philippine Sea. That is why I strongly
supported the MOU.
However, the MOU can only be implemented if CNOOC signs a cooperation arrangement with a
Philippine service contractor. CNOOC has refused to sign unless the two mentioned critical provisions
in our service contracts are deleted. Of course, Secretary Locsin will never budge on these two critical
provisions. To give up these two provisions, or even one of them, is to give up our sovereign rights in
the West Philippine Sea.
“Cooperation arrangement” is a Philippine concept that the Philippines has the sovereign rights to the
oil and gas. “Joint development” is a Chinese concept that China has the sovereign rights to the oil and
gas. The MOU is a cooperation arrangement, not a joint development. Every Filipino must know the
difference between these two opposing concepts.

15. A grave threat to world peace. Antonio Carpio. PDI, Feb 4, 2021. 

What has prevented a third world war are two provisions in the 1945 United Nations Charter. The
first provision outlaws the threat or use of force to settle disputes between or among states, while
the second provision mandates the peaceful settlement of international disputes. These two
provisions compulsorily prescribe, “All Members shall” (1) “refrain xxx from the threat or use of
force against the territorial integrity or political independence of any state”; and (2) settle their
disputes through “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort
to regional agencies or arrangements, or other peaceful means of their own choice.” Before the
adoption of the UN Charter, threat or use of force, if successful, was a legitimate means of
acquiring territory.
The United Nations Convention on the Law of the Sea (Unclos), which governs maritime issues,
mandates that “States Parties shall settle any dispute concerning the interpretation or application of
this Convention by peaceful means” in accordance with the two foregoing provisions of the UN
Charter. In short, international law prohibits the threat or use of force to settle territorial or maritime
disputes between or among states, and mandates the peaceful settlement of such disputes
through negotiation, mediation, or arbitration. Armed force can be used by a state only in self-
defense, whether individual or collective, or when authorized by the UN Security Council to
maintain world peace.
China’s new coast guard law, which took effect last Feb. 1, 2021, authorizes China’s coast guard to
fire on ships of other states that fish or conduct “economic activities,” like surveying or drilling for oil
and gas, in waters claimed by China, even if the waters are situated beyond the territorial sea,
exclusive economic zone (EEZ), or extended continental shelf (ECS) of China. China claims all the
natural resources found in waters constituting 85.7 percent of the South China Sea. China’s claim
encroaches on the high seas, and on the EEZs and ECSs of the Philippines, Vietnam, Malaysia,
Brunei, and Indonesia.
Under Unclos, the fish in the high seas belong to all mankind and any state in the world, coastal or
landlocked, has the right to fish in the high seas of the South China Sea. About 25 percent of the
waters of the South China Sea are high seas. China claims ownership to all the fish in the high
seas of the South China Sea. With its new law, China’s coast guard can now fire on fishing vessels
of other states that fish in the high seas of the South China Sea. China’s new law is per se an
actual threat of force on fishing vessels of all states that fish in the high seas of the South China
Sea. This is a clear violation of the UN Charter and of Unclos.
China’s nine-dash line claim encroaches on the EEZs of five Asean coastal states.
With its new law, China’s coast guard can now fire on Vietnamese fishing vessels that fish within
Vietnam’s EEZ that overlap with China’s nine-dash line. Even assuming that the overlapping
maritime areas are still legally disputed in the absence of an arbitral ruling by an Unclos tribunal,
still China has no right to resort to threat or use of force to settle a maritime dispute. The threat of
force that China’s new law authorizes violates the UN Charter and Unclos.
An Unclos arbitral tribunal has ruled that the Philippines has an EEZ in the West Philippines Sea,
invalidating China’s claim to 80 percent of this EEZ. This Philippine EEZ can no longer be disputed
by China. However, under its new law China’s coast guard can now fire on Philippine ships that
conduct surveys in Reed Bank, or on Philippine vessels that fish within this Philippine EEZ. This
threat of force against Philippine vessels is even a more blatant violation of the UN Charter and of
Unclos.
If China’s new coast guard law is allowed to stand, both the UN Charter and Unclos will no longer
apply in the South China Sea and even in the East China Sea. These two seas will revert to the
situation that existed before the two world wars, where states acquired territories through threat or
use of force. China’s new law is definitely a grave threat to world peace.

16. Regime of Islands.(Kalayaan Island Group) Antonio Carpio. PDI, May 27, 2021. 

The Kalayaan Island Group (KIG) was formally incorporated into Philippine territory under
Presidential Decree No. 1596 dated June 11, 1978. PD 1596 states, “The area within (a
description of the coordinates of the KIG polygonal lines) xxx shall belong and be subject to
the sovereignty of the Philippines.” This means that the Philippines claimed everything within
the polygonal lines as Philippine territory, even waters and resources beyond the territorial
seas of high-tide geologic features within the polygonal lines.
Under international law in 1978, states could claim only a three nautical mile territorial sea from
the low water mark of a high-tide feature. Under the 1982 UN Convention on the Law of the
Sea or Unclos, this territorial sea was extended to 12 nautical miles. However, PD 1596 still
violated Unclos insofar as it claimed as Philippine territory waters and resources beyond 12
nautical miles from high-tide features within the KIG polygonal lines.
When the Philippines ratified Unclos on May 8, 1984, the Philippines undertook to align in
good faith its domestic law with Unclos. Thus, Congress passed Republic Act No. 9522 on
March 10, 2009 to comply with our obligation under Unclos. Section 2 of RA 9522 provides:
“The baseline in the following areas over which the Philippines likewise exercises sovereignty
and jurisdiction shall be determined as ‘Regime of Islands’ under the Republic of the
Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea
(Unclos): (a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596;
and (b) Bajo de Masinloc, also known as Scarborough Shoal.”
Under RA 9522, the baseline of an island, from which the territorial sea is measured, shall be
determined in accordance with the Regime of Islands under Article 121 of Unclos. Article 121
provides that an island must be above water at high tide. Hence, a geologic feature below
water at high tide is not an island and is not entitled to a territorial sea. Under RA 9522, the
Philippines now claims as Philippine territory only geologic features above water at high tide,
together with their territorial seas. In compliance with Unclos, the Philippines under RA 9522
no longer claims as Philippine territory low-tide geologic features, waters, and resources
beyond the territorial sea.
Section 2 of RA 9522 refers to the determination of the baseline of islands in the “[t]he
Kalayaan Island Group as constituted under Presidential Decree No. 1596.” The islands
referred to are the high-tide geologic features found within the same polygonal lines of PD
1596 as they are the islands “constituted under Presidential Decree No. 1596.” Under RA
9522, the interpretation of the polygonal lines has changed, from a claim to all the geologic
features, waters, and resources found within the polygonal lines, to a claim to only all the high-
tide features and their territorial seas found within the polygonal lines. Clearly, the polygonal
lines under PD 1596 have not been abrogated but merely reinterpreted to comply with Unclos.
When the Philippines filed its arbitration case against China on Jan. 22, 2013, the Philippines
had already enacted RA 9522 which fully aligned Philippine domestic law with Unclos. During
the proceedings, the lawyers of the Philippines submitted a copy of RA 9522, together with a
copy of the 2011 Supreme Court decision in Magallona v. Ermita which affirmed the
constitutionality of RA 9522, to establish that the Philippines had fulfilled in good faith its
obligation to align its domestic law with Unclos.
During the arbitration, the Philippine lawyers were aware that China had illegally drawn straight
baselines around the Paracels. The Philippine lawyers were worried that China would also declare
straight baselines around the Spratlys. Thus, the Philippine lawyers on their own raised the issue
that straight baselines could not be drawn around the Spratlys. In response, the arbitral tribunal
stated in its final Award of July 12, 2016: “In the Tribunal’s view, any application of straight
baselines to the Spratly Islands in this fashion would be contrary to the Convention. Article 7
provides for the application of straight baselines only “[i]n localities where the coastline is deeply
indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity.

17. Joint EDU unconstitutional. Edu Punay. Philstar, Nov 27, 2018. 

MANILA, Philippines — Joint exploration and exploitation of resources in the West Philippine
Sea with China is unconstitutional, acting Chief Justice Antonio Carpio said yesterday.
“Joint exploration and exploitation is prohibited in our Constitution, which requires that the
Philippines shall have ‘full control and supervision’ in the exploration and exploitation of natural
resources,” he explained in a text message.
“Joint exploration and exploitation” as defined by law “will diminish our ‘full control’ and thus
violate the Constitution,” he said.  
But at a forum over the weekend, Carpio said allowing Chinese participation in oil and gas
exploration through Philippine service contracts might be acceptable.
The signing of a memorandum of understanding (MOU) on oil and gas exploration during the
recent visit of Chinese President Xi Jinping had sparked concerns the country’s sovereign
rights over the West Philippine Sea would be compromised.
Carpio said a portion of the MOU appeared to suggest China’s willingness to recognize service
contracting by the Philippines – or ultimately the country’s sovereign rights over areas covered
by service contracts.
“I don’t have any objection with that kind of arrangement because if China comes in through
our service contractors, those service contracts expressly recognize that the area falls within
Philippine sovereignty or sovereign rights,” he said.
“I think we’re pretty safe. The government has included service contractors, so if we cooperate,
if the cooperation with China on oil and gas activities will be through service contractors, we’re
very safe,” he explained in an interview.
The magistrate even suggested that the service contractor in the Philippines’ Recto Bank
(Reed Bank), Forum Energy, could tap a Chinese firm as a subcontractor.
Businessman Manuel V. Pangilinan’s PXP Energy Corp., through its London-listed unit Forum
Energy Plc, holds an exploration permit covering Recto Bank.
Carpio said China “can come in as a subcontractor of Forum Energy or it can buy into equity of
Forum Energy, or it could do both.” – With Helen Flores
18. Permanent Court of Arbitration. Farolan. PDI, July 18, 2016. 
FOR THE past week, the South China Sea ruling by the Permanent Court of Arbitration (PCA)
at The Hague has been covered by media on a daily basis. In many of the articles written on
the decision, the court has often been referred to as a “UN court,” a “UN arbitral tribunal,” a
“UN arbitration court,” a “UN-backed tribunal,” and a “UN Permanent Court of Arbitration.”
Perhaps, because the case has something to do with the UN Convention on the Law of the
Sea (Unclos), we assume that the PCA is a UN body or agency. Perhaps, it also provides a
sense of familiarity for many readers to associate the court with the United Nations. But in fact,
the PCA is not a UN agency and terms like “UN tribunal” or “UN-backed court” are misleading
and incorrect.
The PCA was established by the first Hague Peace Conference in 1899 some 15 years before
the start of World War I, while the United Nations came into being after World War II, or almost
half a century after the PCA. It is an intergovernmental organization that provides a variety of
dispute resolution services to the international community. It is based in the Peace Palace at
The Hague, Netherlands, sharing a common home with the International Court of Justice
which happens to be a UN agency.
While the PCA is one of the oldest institutions for the settlement of international disputes, it is
not in the strict sense of the word, a court. What it does is organize arbitral tribunals to resolve
conflicts between member-states (now numbering 119), international organizations, or even
private parties within an organization.
The full case name covering the dispute is “An Arbitration before an Arbitral Tribunal
constituted under Annex VII to the 1982 UN Convention on the Law of the Sea between the
Republic of the Philippines and the People’s Republic of China.”
The presiding arbitrator is Judge Thomas A. Mensah of Ghana, who was the first president of
the International Tribunal for the Law of the Sea. The other members of the court are Judge
Jean-Pierre Cot (France), Judge Rudiger Wolfrum (Germany), Prof. Alfred Soons
(Netherlands), and Judge Stanislaw Pawlak (Poland). All are distinguished scholars and jurists
with extensive experience particularly in maritime law.
***
In its Memorial submitted to the PCA, the Philippines requested action on 15 points; not all
were acted upon.
Some of the findings in the dispositif portion of the South China Sea Arbitration Award of July
12, 2016, are as follows:
• China’s nonappearance in the proceedings does not deprive the tribunal of jurisdiction.
• The Philippines’ act of initiating this arbitration did not constitute an abuse of process.
• There is no indispensable third party whose absence deprives the tribunal of jurisdiction.
Among the more significant declarations in the award:
On China’s historic claims and the so-called “nine-dash line” that encompasses practically 80
percent of the South China Sea, the tribunal declared that China’s claim to historic rights in the
South China Sea is “contrary to the Convention (Unclos), and without lawful effect.” It further
declared that “the Convention superseded any historical rights or jurisdiction.”

On Mischief Reef and the Second Thomas Shoal (Ayungin Shoal where our Marines are
stationed on the BRP Sierra Madre), the tribunal declared that they are within the exclusive
economic zone (EEZ) and continental shelf of the Philippines.
On Scarborough Shoal (Panatag Shoal, which is a fishing ground of our people in Zambales
and Pangasinan), the tribunal found that it “has been a traditional fishing ground for fishermen
of many nationalities and declares that China has unlawfully prevented fishermen from the
Philippines from engaging in traditional fishing at Scarborough Shoal.”
On the Reed Bank, the tribunal declared that China, through the operation of its marine
surveillance, breached its obligations under Article 77 of the Convention with respect to the
Philippine sovereign rights over nonliving resources of its continental shelf in the area of Reed
Bank.
On the protection and preservation of the marine environment in the South China Sea, the
tribunal found that fishermen from Chinese vessels have engaged in the harvesting of
endangered species on a significant scale; have engaged in the harvesting of giant clams in a
manner destructive of the coral reef ecosystem.
On China’s construction of artificial islands, installation, and structures at Mischief Reef, the
tribunal declared that this was done without the authorization of the Philippines.
***
With all these findings and declarations in our favor, should we rejoice and express feelings of
joy and excitement, or should we exercise “restraint and sobriety” as called for by the
government? 
In a recent TV talk show hosted by Karen Davila, Dindo Manhit, president of a local think tank
named after former foreign secretary Albert del Rosario, and former congressman Roilo Golez,
expressed sadness and disappointment that there was no outpouring of joy and happiness
over the South China Sea decision. Manhit singled out an official of the Department of Foreign
Affairs for his sad demeanor in announcing the court verdict, while Golez mentioned that when
Portugal won the European Cup, the entire nation was ecstatic over the victory, with
celebrations taking place all over the country. He added “that was just a football game, and
here we had won in a case involving our natural resources and territorial rights.”
This fight is not yet over. For one thing, China has always declared from the very beginning
that it would not honor whatever are the rulings of the court. And so our fishermen are still
being bullied and kept away from their traditional fishing grounds. China is not going to
dismantle its installations and structures on Mischief Reef, and we are uncertain about
proceeding with explorations at the Reed Bank.
So, what must we do? We need to talk with the Chinese. We have the PCA rulings to support
us and with help from the international community in the form of world opinion, we might be
able to resolve some of the issues that confront us, not all, just some. There is no such thing
as the perfect solution.
Finally, a word of gratitude to former president Noynoy Aquino, former secretary Albert del
Rosario, Justices Antonio Carpio and Francis Jardeleza, and former solicitor general Florin
Hilbay, and many other people, for their efforts on behalf of the nation at The Hague.

19. The SCS Arbitral Award and Julian Felipe Reef. Loja Bagares. PDI, April 21, 2021. 
The Arbitral Award did not declare that the waters of Julian Felipe Reef (JRF) are part of the
Philippines’ exclusive economic zone (EEZ).
That is not necessarily a bad thing.
The Award states that the Philippine claim to EEZ covers only the waters “within 200M of the
Philippine coast, but beyond 12M from any high-tide feature within the South China Sea.” High-tide
elevations (HTEs) include rocks that have a territorial sea only. The Award declared Sin Cowe
Island, McKennan Reef, and Pag-Asa as rocks. Though disputed, Sin Cowe is occupied by
Vietnam; McKennan, by China; and Pag-Asa, by the Philippines.
The Julian Felipe Reef is inside the territorial seas of Sin Cowe and McKennan, respectively. It
is outside the territorial sea of Pag-Asa. Thus, the waters of JFR are beyond the Philippine
claim to EEZ.
In its original claim, the Philippines asked the Arbitral Tribunal to declare all waters within 200
miles from the baselines, including those of JFR, as the Philippine EEZ.
However, in its final submission, it confined its claim to the waters “beyond 12M from any
[HTE].” This was a strategic sacrifice that served two purposes. First, the Philippines and
China had reserved maritime delimitation issues from arbitration or adjudication. The Tribunal
would have declined jurisdiction had the Philippines maintained its original claim to the EEZ
that overlaps with the territorial sea of any disputed feature. Second, the territorial sea is in the
same category as land territory, for it is subject to the full sovereignty and plenary authority of
the coastal state. In contrast, the EEZ is not territory and is subject to merely the economic
rights and functional jurisdiction of the coastal state. All constitutional, civil, and criminal laws
apply to the former but not to the latter. Consequently, had the Philippines maintained its
original claim that all the waters within 200 miles are EEZ, it would have downgraded the
territorial waters of Pag-Asa and other features that it occupies or claims. It would have shed
off territory, just as it shed off territory in 2009 when it surrendered the territorial sea enclosed
by the Treaty of Paris in exchange for the EEZ.
In other words, the Philippines made a sacrifice for rule of law in the SCS. It paid off. The
Tribunal assumed jurisdiction and struck down China’s nine-dash lines.
At the same time, the Tribunal virtually nullified Presidential Decree No. 1596 when it declared
that all straight baselines enclosing the Spratly Islands violate Article 7 and Article 47 of
Unclos. Thus, the baselines under PD 1596 enclosing the Kalayaan Island Group (KIG) are no
more. Like China, the Philippines must comply with this ruling. Consequently, the waters of
JFR cannot be said to be part of the KIG.
What, then, is the status of the Chinese vessels in the waters of Julian Felipe Reef? If these
are military or state vessels for noncommercial purpose, they enjoy sovereign immunity, more
so while within the territorial sea of McKennan (Ara Libertad Case).
The Philippines has no EEZ jurisdiction over them. If these are commercial vessels, their
presence and economic activities within the territorial sea of McKennan are not subject to
Philippine EEZ jurisdiction. To be sure, the Philippine must protest the presence of these
vessels to preserve its territorial claims to McKennan and Sin Cowe and the waters of JFR.
However, the UN Charter proscribes the use of aggression, except in self-defense.
The moment these commercial vessels stray beyond the territorial sea of McKennan/Sin Cowe and
into the Philippine EEZ, their economic activities become subject to Philippine jurisdiction. If the
vessels are not engaging in economic activities while within the Philippine EEZ, their presence
could fall under freedom of navigation. However, the Philippines can pursue a complaint with the
International Maritime Organization for violation of regulations on safety of navigation.

20. Ph Arbitral win. What is to be done. Loja/ Bagares. PDI, May 29, 2021. 

We borrow a famous question asked in 1902 by Vladimir Ilyich Ulyanov in a work of classic Marxist
polemics to consider how to make the most out of the gains we won in our South China Sea (SCS)
arbitral proceedings against China.
Weeks before the fifth anniversary of our triumph against China in the 2016 SCS arbitral
proceedings, we remain lost at sea.
Even the Supreme Court appears confused about the status of the Kalayaan Island Group (KIG)
under the Arbitral Award. In Republic v. Palawan (January 2020), it reinstated the straight lines
enclosing the KIG as an archipelago under the 1978 Presidential Decree No. 1596, despite the
Arbitral Award saying such archipelago contradicts the UN Convention on the Law of the Sea
(Unclos).
With the Arbitral Award eviscerating PD 1596, we are left with Republic Act No. 9522 enclaving the
KIG as a regime of islands. Unfortunately, neither law named the features in the KIG. RA 9522 did
not identify which of the three regimes under Article 121 of Unclos applies to which of the features
in the KIG. Yet, it is basic international law that a territorial claim must pertain to a defined piece of
land (or rock) and that a maritime claim must emanate from such territory. The Arbitral Award said
as much when it reduced the claims of the competing states to the granular size of individual rocks
and their individual territorial seas (TS).
So, where Lenin (Ulyanov) argued for a vanguard party to advance the revolution, we say that it is
imperative that we pass a law naming and defining the baselines of each rock, reiterating our claim
to all of them and their respective TS, and developing those that we already occupy.
We can use normal baselines to delineate the TS of each rock, and even straight baselines drawn
from low-tide elevations (LTEs) inside the TS (Nicaragua v. Columbia, 1986; and Qatar v Bahrain,
1995). The National Mapping and Resource Information Authority should immediately do the
technical groundwork.
There are four urgent reasons for this.Firstly, figure 4.2 attached by our lawyers to the Philippine
Memorial in the SCS arbitral proceedings shows in stark details the national security implications of
the SCS Arbitral Award.
It depicts the various rocks and LTEs found inside our exclusive economic zone (EEZ) and the TS
of each rock. The TS pushes against our EEZ (thus, the Julian Felipe Reef problem).Pockets of
rocks with their respective TS now mark our EEZ, projecting their own airspace over which full
sovereignty is also exercised. This is an aspect of our KIG claims that we have ignored for far too
long, thereby giving China the opportunity to dictate the air defense identification zone in the area.
Secondly, amending RA 9522 to reflect our victory in the Arbitral Award is a peaceful and
sovereign act to enforce our claims (Island of Palmas arbitration, 1928). This is particularly urgent
in Bajo de Masinloc, because the Arbitral Award declared its TS as subject to common fishing
among Chinese, Vietnamese, and Filipino fishermen. Such common fishing regime should not be
allowed to spill over into our EEZ.
Thirdly, baselines are a precondition for our unhampered enjoyment of sovereign rights in the
waters within our EEZ but beyond the TS of contested rocks. China benefits from our
procrastination over the definition of new baselines pursuant to the Arbitral Award, because the TS
of these contested rocks have remained indistinguishable from our uncontested EEZ.
Finally, the new baselines will enable our Coast Guard and Navy to designate zones of maritime
law enforcement and security, and calibrate the appropriate level of force to use in each zone.
In other words, we must draw a line under PD 1596 and move on with a new law memorializing our
real gains in the Arbitral Award.
21, Extracting WPS resources beyond the arbitral award. Panganiban. PDI, August 18,
2019. 
Just after our people were getting united in our goals and methods of asserting our rights in the
West Philippine Sea (WPS), and after President Duterte publicly promised he would take up the
arbitral award with President Xi Jinping, Chinese Ambassador Zhao Jianhua strongly reiterated
China’s rejection of the award, firmly saying that China “will not accept it…”
Though it may want to retain our friendship, the People’s Republic, I think, will not budge. Why?
Because an acceptance of the award would mean that it accedes to (1) freedom of navigation in
the South China Sea (SCS) and allow the warships and warplanes of America and other powers to
roam freely therein, (2) dismantle and abandon its reclamations, constructions and installations in
the SCS, and (3) give up its claimed “historic rights” over almost the entire SCS, rights that are
assiduously taught in Chinese schools to be essential parts of its heritage.
However, I believe that out of the close rapport between Presidents Duterte and Xi, China may
allow us to exploit, develop, extract and enjoy the natural gas, petroleum and oil in the bowels of
the WPS without invoking the China-abhorred arbitral award. Why?
In my column on April 23, 2017, I wrote that, after decades of negotiations, the Philippines was
recognized as an integrated “archipelagic state” entitled to the 12-nautical-mile (NM) territorial sea,
24 NM contiguous zone (CZ), 200 NW exclusive economic zone (EEZ) and 350 NM extended
continental shelf (ECS).
To confirm our entitlement to these maritime rights, we were obligated by the Law of the Sea
Convention (LOSC), which was approved by the United Nations (UN) on April 30, 1982 and
became effective on Nov. 16, 1994, to establish via a domestic law the baselines from which these
rights would be measured.
Accordingly, Congress enacted Republic Act No. 9522 on March 10, 2009 (1) defining the
baselines of our archipelago from its northernmost point to its southernmost part, including therein
the Spratlys and Scarborough, and (2) declaring the Philippines’ sovereignty and jurisdiction over
them. A month later, on April 13, 2009, China promptly sent a “Note” to the UN Secretary General
taking “exceptions” to RA 9522, alleging that this law “illegally claims” the Spratlys and
Scarborough which “have been part of the territory of China since the ancient time.”
Significantly, China’s exceptions to RA 9522 were limited only to our declaration of sovereignty and
jurisdiction over the Spratlys and Scarborough, not to our sovereign rights recognized by the LOSC
in our TS, CZ, EEZ and ECS (collectively known as the WPS). Since it did not contest such
sovereign rights, which include the rights to explore, extract, develop and enjoy the natural
resources therein, China may be deemed to have impliedly accepted them.
Consequently, I believe that even without the arbitral award, President Duterte could simply invoke
the above facts to President Xi, who may just confirm or pass sub silentio China’s implied
recognition of our maritime entitlements under LOSC and allow us to harvest the natural resources,
including the fish, in the WPS.
In this manner, the Philippines may be able to extract and enjoy this sea wealth through the
constitutionally allowed modes of “co-production, joint venture, production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens.” Or the President may also opt to use the more flexible “financial and technical
assistance agreements” with foreign-owned corporations, over which the Supreme Court, in La
Bugal-B’laan v. Ramos (Dec 1, 2004), gave the President wide discretion to negotiate
Indeed, even without invoking the arbitral award, we should be able to enjoy the valuable treasures
of the WPS before modern science and technology render them valueless with discoveries of
green substitutes for minerals, petroleum and other mineral oils. How about the Spratlys, especially
Pag-asa Island which we occupy and want to develop further, and Scarborough, which China
occupies but has desisted from reclaiming and developing? Ah, I will leave them to the negotiating
skills of President Duterte when he meets President Xi later this month.

22. Humility in Victory. Panganiban. PDI, July 10, 2016.  

On the crest of an expected Philippine victory in the arbitration case filed by the Philippines
against China over the South China Sea, I agree with President Duterte that we must not
“taunt [China] or flaunt” our triumph.
Preserve Chinese friendship. After all, the Philippines and China enjoy a long history of
friendship as well as excellent diplomatic, political and trade relations. This dispute is just one
aspect of such a long relationship. Humility in victory is the better course as we continue to
engage our big neighbor in friendly dialogue. We should not, after our victory, rule out bilateral
negotiation, as China has always wanted.
China opted not to participate in the proceedings and the Philippines was allowed by the
Arbitration Tribunal to present its case ex-parte. However, in various “diplomatic Notes
Verbale,” position papers, media announcements and letters to members of the Tribunal,
China has repeatedly argued that the Tribunal has no jurisdiction and that, consequently, it
would not abide by any decision issued.
In an earlier 151-page “Award” or ruling, dated Oct. 29, 2015, the Tribunal already held that,
contrary to these arguments, it has jurisdiction to hear and decide the case notwithstanding
China’s absence or default. In fact, the Tribunal formally announced that it would issue its
decision on the merit this Tuesday.
Despite China’s absence, the Tribunal said it would copy China with all communications,
arguments and documents in the case, give it notice of all hearings, grant it adequate time to
respond to or comment on the pleadings filed by the Philippines (if it so desires), and remain
open to China’s participation at any stage of the proceedings.
Extent of victory. In its “Memorial” (or final written arguments), the Philippines prayed for 15
“submissions” or reliefs. Although a victory is generally conceded in our favor, we do not know,
at this point, how many of these 15 would be granted by the Tribunal.
In an earlier column (11/8/15), I summarized these 15 submissions into three basic claims:
First, the Philippines “seeks declarations that the Parties’ respective rights and obligations in
regard to the waters, seabed, and maritime features of the South China Sea are governed by
Unclos (United Nations Convention on the Law of the Sea) and that China’s claims based on
‘historic rights’ encompassed within its so-called ‘nine-dash line’ are inconsistent with the
Convention and therefore invalid.”
Second, it “seeks determination as to whether, under the Convention, certain maritime features
claimed by both China and the Philippines are properly characterized as islands, rocks, low
tide elevations, or submerged banks.”
Consequently, if these are “islands,” they could generate an exclusive economic zone (EEZ) or
entitlement to a continental shelf extending as far as 200 nautical miles. If, however, these are
“rocks,” they could generate a territorial sea no greater than 12 nautical miles. If they are
neither islands nor rocks, but merely low-tide elevations or submerged banks, they would be
incapable of generating any such entitlements. No amount of artificial reclamation work can
change the status of such features.
Third, it “seeks declarations that China has violated the Convention by interfering with the
exercise of the Philippines’ sovereign rights and freedoms under the Convention and through
constructions and fishing activities that have harmed the marine environment.”
Benefits from decision. A grant in full by the Tribunal of the first set of submissions would mean
the invalidation of the nine-dash line, undoubtedly a big embarrassment and legal setback for
China. Under this “line,” China claims sovereignty and jurisdiction over almost all of the vast
South China Sea.
Consequently, a Philippine victory on these submissions will mean freedom of navigation for all
countries. Thus, the navy and air force of the United States, Australia, Japan and the other big
powers could continue to sail or fly freely in and above this huge body of water.
The second set of submissions is very important to us, although it may not be as important to
other countries. Our victory would mean that we could freely explore, develop, extract and
utilize the marine and natural resources, particularly oil and gas deposits, in the EEZ of 200
nautical miles outward from the coastlines of the Philippines and would, as a necessary
consequence, legally bar China from asserting any authority over these mineral and gas
resources.
One problem in this regard is Itu Aba (called Taiping Island by China), which is about one-half
square kilometer (about 46 hectares) of soil formation lying a little over 200 nautical miles off
the coast of Palawan and occupied by Taiwanese soldiers. If this is ruled to be an “island,”
then it could generate its own EEZ that will overlap with our Palawan EEZ.
Since we recognize only one China, then the Taiwanese occupation is deemed to be that of
China. Despite its small size, Itu Aba could generate a huge EEZ extending very close to
Palawan, an EEZ that China could exploit with the protection of its navy.
Finally, a victory on the third set of submissions would mean that China can no longer legally
use its naval vessels to chase our fishermen, or ruin the reefs and ecological structures in our
EEZ.
Note that the Philippines did not ask for, and the Tribunal will not grant, any sovereign or
ownership rights over any land mass. Reason: The Tribunal’s jurisdiction is limited only to
maritime rights recognized under the Unclos.
23. Joint Exploration in the WPS. Panganiban.PDI, March 11. 2018. 
To avoid problems with China in extracting the natural resources of the Philippines in the West
Philippine Sea, Secretary Harry Roque Jr., proposed “joint exploration agreements” with Chinese-
owned companies, as had been done by Vietnam and Brunei, saying these agreements have been
upheld in La Bugal-B’laan vs Ramos (Dec. 1, 2004).
Control by the state. Au contraire, Acting Chief Justice (ACJ) Antonio T. Carpio opined in an
interview that La Bugal referred only to land extractions, not to those in water. He added that any
deal with Chinese companies involving our country’s exclusive economic zones, like the Recto
Bank, would be unconstitutional unless these companies recognize Philippine sovereignty.
To be sure, the 246-page La Bugal, passed 10-4 with one abstention, held that all natural
resources are owned by the state and their “exploration, development and utilization” (EDU) may
be undertaken by the state itself or through 1) coproduction, 2) joint venture, or 3) production-
sharing agreements with corporations owned at least 60 percent by Filipino citizens.
Additionally, the President may enter into financial and technical assistance agreements (FTAAs)
with foreign-owned companies for the “large-scale” EDU of our “minerals, petroleum and other
mineral oils.” Within 30 days, he “shall notify Congress” of every such contract.
FTAAs, the Court said, must always be subject to the “full control” of the state. “Full control” is
similar to “that exercised by the board of directors of a private corporation; the performance of
managerial, operational, financial, marketing and other functions may be delegated to subordinate
officials or given to contractual entities, but the board retains full residual control of the business.”
Though La Bugal involved minerals located on land, nowhere can we find a statement limiting the
ruling only to terrestrial minerals. Neither did it say that the President can enter into “joint
exploration agreements” with foreign entities.
But, as the ponente of La Bugal, I think ACJ Carpio is right in stressing that “full control” must
always remain with the Philippines. Nonetheless, Roque would also be correct if he can show that
his proposed “joint exploration agreements” really refer to and will be treated as FTAAs. Then, they
could be covered by La Bugal and the President (and not anyone else) can enter into FTAAs even
with 100-percent Chinese companies to explore, develop and utilize the minerals and petroleum in
the WPS.
Understood in this context, Carpio’s and Roque’s positions are not irreconcilable.
Law scholars. ACJ Carpio will be the guest of honor and speaker at Ateneo de Manila in Rockwell,
Makati, on March 23 when the Foundation for Liberty and Prosperity and the Tan Yan Kee
Foundation Inc. (TYKF), with the cooperation of the Philippine Association of Law Schools (PALS)
award 21 law scholarships to:
Third year — Leo Francis Abot (Ateneo de Manila), John Anthony Almerino (U of San Carlos),
Arvin Paolo Cortez (Ateneo de Manila), Mikael Gabrielle Ilao (U of  Cordilleras), Kenneth Glenn
Manuel (UST), King Anthony Perez (U of Cebu), Josiah David Quising (FEU), Jun Dexter Rojas
(Polytechnic U), Julienne Therese Salvacion (San Beda Manila) and Ma. Vida Malaya Villarico
(Polytechnic U).
Fourth year — Karina Mae Badua (UST), Sean James Borja (Ateneo de Manila), Kaycelle Anne
Castillo (FEU), Ervin Fredrick Dy (UP), Rexlyn Anne Evora (Polytechnic U), Katrina Monica Gaw
(Ateneo de Manila), Summerson Macasarte (St. Thomas More), Nigel Carmelo Reago (De La Salle
U), Jose Angelo Tiglao (De La Salle U), Althea Vergara (U of San Carlos) and Vanessa Gloria
Vergara (Ateneo de Manila).
P200,000 scholarships. Each of them will get a scholarship grant of P200,000 divided into P80,000
for monthly stipends, P20,000 for books and a maximum of P100,000 for tuition, plus a certificate
of recognition.

24. Ways of harvesting our EEZ, Panganiban. PDI, Sept 1, 2019. 

As expected, Chinese President Xi Jinping rejected the arbitral award during his meeting with
President Duterte in Beijing on Aug. 29. However, the two leaders agreed to resolve the
controversy peacefully and diplomatically.
In continuing the negotiations, I believe that, as pointed out in my column on Aug. 18, we should
refer to the Chinese “Note,” dated April 13, 2009, addressed to the Secretary General of the United
Nations impliedly recognizing our entitlements in our exclusive economic zone (EEZ), and to the
Memorandum of Agreement (MoA) reached in November last year, in which China consented to a
60-40 sharing in our favor in the exploration, development and utilization (EDU) of the natural
resources buried in our EEZ.
A constitutional way to implement this 60-40 sharing was made two decades ago (way before the
arbitral award was issued) when the Philippines entered into a joint venture with a foreign
consortium led by Shell to extract natural gas from the Malampaya area some 50-80 kilometers
northwest of Palawan, well within our EEZ which measures 200 nautical miles (370 kilometers)
from our western baselines.
Under this joint venture, the foreign consortium advanced all expenses needed and undertook all
the risks of failure, but shared the fruits of success with 60 percent of the net revenues going to us
and the balance of 40 percent to the consortium.
The venture has produced enough natural gas to fuel about 30 percent of our country’s electric
power needs plus cash of nearly $800 million yearly, or a total of about $10 billion since it started
operations in 2001, aside from the 10-percent share the Philippine National Oil Company (PNOC)
gets as the only Filipino member of the consortium. This project could be replicated by a new
consortium to be led by a Chinese company.
Other than this Shell model, Chinese companies may invest in other ways allowed by the relevant
provisions of our Constitution which, for easy understanding, were stratified by La Bugal-B’laan v.
Ramos (Dec. 1, 2004), as follows:
1) All the natural resources in our country are owned by the Philippine state. Except for agricultural
land, natural resources cannot be alienated.
2) At all times, the EDU of our natural resources shall be under the full control and supervision of
the state.
3) Nonetheless, the state may undertake these EDU activities, either (a) directly and solely by
itself, or by (i) co-production, (ii) joint venture, or (iii) production-sharing agreements with Filipino
citizens or corporations in which at least 60 percent of the capital is owned by such citizens.
4) Small-scale utilization of our natural resources may be allowed by law in favor of Filipino citizens
only.
5) For the large-scale EDU of “minerals, petroleum and other mineral oils,” the President may
“enter into agreements with foreign-owned corporations involving either technical or financial
assistance” (FTAAs).
To sum up, the EDU of our natural resources may be undertaken by the state itself or in tandem
with Filipinos or Filipino corporations, except in two instances; first, small-scale utilization may be
allowed by law only to Filipinos; and second, the large-scale EDU of “minerals, petroleum and
other mineral oils” may be undertaken via FTAAs with foreign-owned corporations. The La Bugal-
B’laan decision, which I had the honor of writing for the Court, interpreted liberally, not literally, the
constitutional provisions on FTAAs, and gave the President wide discretion to attract foreign
investments and expertise in extracting our country’s hidden wealth to help save our people from
sheer hunger, deadly disease and grinding poverty.
This liberality is justified “given the nature and complexity of such agreements, the humongous
amounts of capital and financing required for large-scale mining operations, the complicated
technology needed, and the intricacies of international trade, coupled with the State’s need to
maintain flexibility in its dealings, in order to preserve and enhance the country’s competitiveness
in world markets.” To stress and to repeat, all these EDU activities are subject to the overarching
constitutional caveat that “full control and supervision” must always remain with the Philippines.
25. Duterte has no authority to set aside the arbitral ruling. Patricia Viray. Philstar, Sept
13, 2019. 
MANILA, Philippines — Under Philippine law, President Rodrigo Duterte does not have the
authority to "set aside" the July 2016 ruling issued by the Permanent Court of Arbitration,
Supreme Court Senior Associate Antonio Carpio said.
Earlier this week, Duterte said the Philippines would "ignore" the arbitral award covering the
country's exclusive economic zone in able to pursue "economic activity" in the area.
"However, even if the President has no authority under Philippine law to set aside the arbitral
ruling, the unilateral declaration by the President that he was 'setting aside' the arbitral ruling
could bind the Philippines under international law under the doctrine of unilateral declarations,"
Carpio said in a statement released Friday.
Carpio, part of the Philippine delegation in the arbitration against China, commended Foreign
Affairs Secretary Teodoro Locsin for clarifying the matter.
The senior magistrate warned that Duterte's unilateral declaration on setting aside the ruling
might bind the Philippines if China accepts it.
"We should be thankful to Secretary Locsin for his vigilance in preventing a waiver of our
sovereign rights under the arbitral ruling," Carpio said.
Carpio also recalled the previous statement of Duterte admitting that he does not have the
authority to give up or condece the country's sovereign rights in the West Philippine Sea.
President has prerogative on when to raise ruling
Despite not having the authority to set aside the arbitral award that favored the Philippines,
Duterte has the prerogative when to invoke the ruling.
"Thus, the president can temporarily 'put aside' the ruling and assert it at an appropriate future
time," the justice said.
While choosing to assert the ruling at a later time, the Philippines must still protest any act of
China that infringe the country's sovereign rights in the West Philippine Sea.
"Any acquiescence or implied consent can result in the loss of our sovereign rights under the
arbitral ruling. The Duterte administration, and the Filipino people, must always be vigilant to
avoid such asquiescence or implied consent," Carpio said.
Duterte said he brought up the arbitral ruling with Chinese President Xi Jinping during their
bilateral meeting in Beijing last month.
Xi, however, refused to "budge" and maintained China's position on the matter.
"You know, China is there. He holds the property under the claim of ownership. 'Yan ang sagot
niya. It is ours, we will not budge," Duterte said.

26. PRRD remarks on EEZ erroneous- Hilbay. Patricia Viray. Philstar, June 27, 2019.  

MANILA, Philippines — President Rodrigo Duterte's latest pronouncements on the country's
sovereignty and exclusive economic zone (EEZ) are erroneous, former Solicitor General Florin Hilbay
said.
Duterte claimed that no country in the world has sovereignty over its EEZ and the Philippine and
Chinese governments have agreed to allow fishermen from both countries to fish in the South China
Sea, part of which is the West Philippine Sea. "These statements are erroneous under international and
domestic law," Hilbay said in a statement.
Hilbay cited the 2016 ruling of a United Nations-backed tribunal, which invalidated Beijing's nine-dash
line claim over the South China Sea. Under Article 73 of the UN Convention on the Law of the Sea,
"The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage
the living resources in the exclusive economic zone, take such measures, including boarding,
inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws
and regulations adopted by it in conformity with this Convention."
The 2016 ruling of the arbitral tribunal also indicated that the Philippines does not share any
"overlapping entitlements" with China over Recto Bank, wherein a Chinese trawler rammed a Filipino
fishing boat. Duterte called the incident near Recto Bank a "small maritime accident." Hilbay stressed
that Recto Bank is within Philippine EEZ, where Filipinos can exercise rights to the exclusion of others.
The Philippines' rights over its EEZ are also consistent with the Constitution and fisheries laws,
according to the former solicitor general.
"Under Rep. Act 8550, as amended by R.A. 10654: It shall be unlawful for any foreign person,
corporation or entity to fih or operate any fishing vessel in Philippine waters," Hilbay said.
"The entry of any foreign fishing vessel in Philippine waters shall constitute a prima facie presumption
that the vessel is engaged in fishing in Philippine waters," he added. While investigations into the Reed
Bank collision are ongoing, presidential spokesperson Salvador Panelo said it was unsure if the
Chinese vessel was in the area to fish or was just passing through.
The Chinese Embassy itself earlier admitted that fishing boat Yuemaobinyu 42212 was engaged in a
"light purse seine operation" and was berthed at the vicinity of Recto Bank on June 9.
Duterte is obligated to protect Philippine waters both in the territorial sea and the EEZ as mandated in
the constitution, Hilbay said.
The 1987 Constitution states that the national territory is comprised of "the Philippine archipelago, with
all the islands and waters embraced therein, and all other territories over which the Philippines has
sovereignty or jurisdiction."
RA 8550 or the Philippine Fisheries Code of 1998 defines "Philippine waters" as "waters including other
waters over which the Philippines has sovereignty and jurisdiction, and the country's 200-nautical mile
Exclusive Economic Zone and continental shelf." Whether in areas where the Philippines has
sovereignty such as the territorial sea or sovereign rights over the EEZ, Duterte is constitutionally
mandated to enforce these rights, Hilbay said.
"Acts of the President inconsistent with these obligations are a culpable violation of the Constitution and
a betrayal of the public trust," the former solicitor general said. Former Foreign Affairs Secretary Albert
del Rosario, meanwhile, said Duterte's position on allowing Chinese fishermen in Philippine EEZ
worsens the situation in the West Philippine Sea. The former top diplomat warned that this would
embolden Chinese fishermen in trawling within Philippine waters.
Del Rosario added that this could also be a basis for impeachment as the president, as well as the
military, are obligated to secure national territory, which covers the EEZ.
"To violate that is really a basis for impeachment of the president. He can be impeached," Del Rosario
told ANC's "Headstart."
Section 2, Article XII of the Constituion states that, "The State shall protect the nation’s marine wealth in
its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens."

27. What every Juan should know about the WPS. Sarah Soliven de Guzman.Philstar,
February 1, 2021. 
What should we do when another country claims our land? Should we keep mum about it?
Allow them to use it? Or should we stand up and fight for our right?
Jennifer Lopez during the US presidential inauguration sang, “This land is my land, this land is
your land... This land was made for you and me.” The song written by Woodie Guthrie has
always been sang to inspire and stir up fervor for love of country. Our countrymen must never
lose hope and continue to fight for what is right.
It is unfortunate that this administration has clearly been playing games with us. At first during
his presidential campaign and during his first few months in office, Duterte promised to raise
the Philipine flag in the Kalayaan Islands on June 12. Everyone was happily awaiting the
moment which never happened. Instead he went to China and got huge loans amounting to
billions of dollars for infrastructure projects. This act seems to have opened China’s soft
‘economic’ invasion to our shores. A few months later, we had Chinese workers in the country
and then, we witnessed a much more aggressive stand on our Kalayaan Islands. Sanamagan!
This is the eighth year from the filing of the South China Sea arbitration by the Philippines
against China and if we don’t continue to hold on to the truth and stand our ground, we will
lose our precious land.
China has been constructing structures in the West Philippine Sea just to show that the islands
belong to them. But how can we prove that the islands belong to us? We need to understand
very well what is the extent of Philippine territory so that we can protect our rights on the West
Philippine Sea.
There are important decisions on constitutional law. This decision, according to former
Associate Justice Antonio T. Carpio, upholds the constitutionality of the archipelagic base
lines. Let us find out some truths about the issue according to Justice Carpio, who has led us
to the truth and who has continued to fight for our rights.
The West Philippine Sea (WPS) is part of the Philippine territory lying within the South China
Sea. The WPS is the Exclusive Economic Zone (EEZ) of the Philippines. Panatag
(Scarborough) Shoal, Kalayaan Island Group and parts of Spratly Islands lie within the WPS.
The Philippines was the first to claim the West Philippine Sea in early 18th century. It can be
seen in a map made in 1734 by Fr. Pedro Murillo Velarde, a Jesuit priest. The map shows that
the Panacot Shoal before it became the Scarborough Shoal belongs to the Philippines. Aside
from this, it can also be seen in the map that the Philippines has identified Los Bajos de
Paragua, now called the Spratly islands, as part of the Philippine territory a long time ago.
Why does China say that the islands in the WPS belong to them? The Chinese believe that
they have a historical right to own the WPS. They say that since the time of the dynasties in
China, 2000 years ago, South China Sea together with the WPS already belong to them.
China started their claim on the WPS in 1947. The Chinese government brought out the map
that shows a U-shape, 9-dash line. All the islands and the natural resources that are part of the
WPS is within their 9-dash line.
How did the WPS issue become a big one? In 1982, the UN Convention on the Law of the Sea
or UNCLOS was created among the countries who signed it. Together with this is having
Exclusive Economic Zone or EEZ. According to the agreement, every country has exclusive
rights to the sea and the natural resources within 200 nautical miles from the nearest
seashore. China did not respect the agreement of the UNCLOS. So, from 1995 to the present
time, China continues to occupy the islands and claim the natural resources in the WPS. In the
past years, they have built large structures in Panganiban (Mischief) Reef and worse, have not
allowed Filipino fishermen to fish.
In 2002, China together with the other ASEAN countries signed the Declaration on the
Conduct of Parties in the South China Sea (DOC), with the aim of resolving the issue on the
South China Sea, especially the WPS. Sadly, China continues to violate the agreement.
What happened to the arbitral tribunal that sided with the Philippines by saying that there is no
legal or historical basis on China’s claim of the South China Sea, particularly the WPS? Again,
China did not respect the decision. They continued to build airports, sea ports and military
bases at the Mischief Reef and Subi Reef. Their ships continue to fish in the WPS. By the way,
according to UNCLOS and the Arbitral Tribunal, it is only the Philippines who owns all the
fishes, oil, gas and other natural resources inside its EEZ. So, we must continue to protect our
own natural resources. Why?
What is our national interest in the WPS? First, the Kalayaan Island Group and the Bajo de
Masinloc are part of the WPS. Both are important for our national integrity and sovereignty.
Kalayaan is a municipality that was established in 1980 in the province of Palawan. Bajo de
Masinloc, on the other hand, is an island that is part of the Municipality of Masinloc in the
province of Zambales. Our islands in the Kalayaan serve as our protection against external
threats. We must remember that during World War II, one of the islands in the Kalayaan was
used by the Japanese when they invaded the Philippines. We must never let this happen
again!
Second, we are dependent on the WPS for our food and livelihood. This is rich in different
kinds of fish and serves as a marine sanctuary. As a matter of fact, 12 percent of the world’s
annual fish catch is from the South China Sea which includes the WPS. This is equivalent to
$21 billion. This is what supports the everyday living, food and livelihood of thousands of
Filipino fishermen.
Did you know that the WPS is rich in natural gas? According to research, billions of natural gas
can be found here, particularly at the Recto Bank. This is the reason why the WPS is important
to us. We depend on it to live and it answers our decade-old problem on electricity.
What are the reasons why we should fight for the WPS? First, it is stated in Article 56 of the
UNCLOS that the Philippines has the right to use the natural resources within our EEZ. It is
also stated in Article 60 that the Philippines has exclusive rights to build economic and
industrial structures on its EEZ. Second, it is stated in Article 12 of the Constitution that the
water resources in our EEZ need to be protected. The Philippines has the exclusive right and
freedom to use these and that the livelihood of our fishermen is a priority in its use. Third, after
the decision of the Arbitral Tribunal in The Hague, Netherlands, in favor of the Philippines, it is
made clear that there is no historical or legal bases for China to claim the WPS.
For more on the West Philippine Sea, watch on YouTube the six-episode presentation of Ang
Laban Ni Juan para sa West Philippine Sea – Mula sa isang naninindigan, patuloy na
lumalaban, at may higit na sapat na kaalaman, Justice Antonio T. Carpio (Visit Facebook and
YouTube Channel: The Institute for Maritime and Ocean Affairs, Inc.).
As a nation we must be informed; know our legal right and continue to fight for our right,
without question or doubt.

28. UN Court Rules. Pia Lee-Brago, Philstar, July 13, 2016. 

UN court rules: China violated Philippine rights The Philippine Star  July 13, 2016 | 12:00am
Highlights of ruling
• No legal basis for China to claim historic rights to a ‘nine-dash line’
• Panganiban (Mischief) Reef, Ayungin (Second Thomas) Shoal and Recto (Reed) Bank
form part of the Philippines’ exclusive economic zone and continental shelf
• Panatag (Scarborough Shoal) is a common traditional fishing ground; no country can
prevent others from fishing in the area; China violated traditional fishing rights of the
Philippines by preventing Filipinos from fishing in the shoal
• China violated the Philippines’ sovereign rights by constructing artificial islands,
interfering with Filipinos’ fishing and oil exploration, and failing to prevent Chinese
from fishing in the Philippine EEZ
• China’s island reclamation aggravated the dispute during arbitration and inflicted
irreparable harm on the marine environment
THE HAGUE – China has no historic title to nearly the entire South China Sea, a UN-backed
tribunal ruled yesterday, as it awarded the Philippines “sovereign rights” over three disputed
areas.
In a landmark unanimous ruling, the Permanent Court of Arbitration based in The Hague
awarded the Philippines sovereign rights over Panganiban or Mischief Reef, Ayungin or
Second Thomas Shoal and Recto or Reed Bank off Palawan.
The court did not award sovereign rights to the Philippines over Panatag or Scarborough
Shoal, which lies just over 120 nautical miles from Zambales. But the court said it was a
traditional fishing ground for several countries and neither China nor the Philippines had the
right to prevent anyone from fishing in the shoal.
China therefore violated Philippine rights when it barred Filipino fishermen from entering the
shoal, the court declared.
Noting that both the Philippines and China had ratified the United Nations Convention on the
Law of the Sea, on which the court ruling was based, the arbitral tribunal pointed out that
UNCLOS provides that the “award… shall be complied with by the parties to the dispute.”
China had refused to participate in the arbitration except to challenge its jurisdiction over the
maritime dispute. But the court ruled last year that it had jurisdiction over the case.
Ruling that Beijing’s so-called “nine-dash line” historic claim over nearly all of the South China
Sea has “no legal basis,” the tribunal also ruled that China violated Philippine sovereign rights
by constructing artificial islands and interfering with Filipino fishing activities.
China’s island reclamation also aggravated the maritime dispute and caused irreparable harm
to the marine environment, the tribunal ruled.
“The tribunal concluded that there was no legal basis for China to claim historic rights within
the sea areas falling within the ‘nine-dash line’,” The Hague-based Permanent Court of
Arbitration said in a statement.
Manila – which had lodged the suit against Beijing in 2013 – welcomed the ruling, with Foreign
Affairs Secretary Perfecto Yasay Jr. saying the decision “upholds international law, particularly
the 1982 UNCLOS.”
“In the meantime, we call on all those concerned to exercise restraint and sobriety,” he said.
China reacted furiously, saying it “does not accept and does not recognize” the decision.
Beijing had refused to participate in the case, saying the tribunal had “no jurisdiction” over the
issue.
Beijing claims most of the South China Sea, even waters approaching neighboring countries,
as its sovereign territory, basing its arguments on Chinese maps dating back to the 1940s
marked with a so-called nine-dash line.
But in its hard-hitting ruling, the PCA said Beijing “had no historic rights to resources in the
waters of the South China Sea” and that “such rights were extinguished to the extent they were
incompatible with the exclusive economic zones provided for in the Convention,” referring to
UNCLOS.
While “bad faith is not presumed” under the fundamental principle of international law, UNLOS
provides that “award… shall be complied with by the parties to the dispute,” it said.
“China had violated the Philippines’ sovereign rights in the exclusive economic zone by
interfering with Philippine fishing and petroleum exploration, by constructing artificial islands
and failing to prevent Chinese fishermen from fishing in the zone,” the PCA said.
The tribunal further ruled that the disputed Spratly islands “cannot generate maritime zones
collectively as unit” as claimed by China.
Yesterday’s judgment comes against the backdrop of frequent military brushes between China
and its Asian neighbors the Philippines, Vietnam, Malaysia, Brunei and Taiwan, which ring the
waters believed to hold untapped oil and gas reserves.
The tensions have also alarmed the US, which has key defense treaties with many regional
allies, and in a show of strength last week sent warships to patrol close to some of the reefs
and islands claimed by China.
President Duterte had said he was optimistic of a favorable ruling, but offered to hold
conciliatory talks with China and vowed he would not “taunt or flaunt” any favorable ruling.
Referring to the UNCLOS, Manila contended the nine-dash line had no basis under
international law and that Beijing had no “historic” claim to the waters.
Common fishing ground
The court also held that fishermen from the Philippines and China had traditional fishing rights
at the Scarborough (Panatag) Shoal and that China had interfered with these rights in
restricting access to the area.
The Chinese seized Panatag Shoal in 2012 after a standoff with the Philippine Navy which
tried to arrest Chinese poachers in the area.
It also held that Chinese law enforcement vessels “had unlawfully created a serious risk of
collision when they physically obstructed Philippine vessels.”
The tribunal also cited the “harm to the environment” caused by China’s large-scale
reclamation and island building activities in the South China Sea. Such construction activities,
the tribunal said, were “incompatible with the obligations of a state during dispute resolutions
proceedings,” citing China’s having inflicted “irreparable harm” to the marine environment, built
artificial island in Philippine waters and “destroyed evidence of natural condition of features in
the South China Sea” that were being disputed.
“China had caused severe harm to the coral reef environment and violated its obligation to
preserve and protect fragile ecosystems and the habitat of depleted, threatened or endangered
species,” the ruling read.
It added Chinese authorities were aware of the poaching activities of Chinese fishermen but
did not stop them.
The ruling also stated that Panganiban Reef, Ayungin Shoal and Recto Bank are submerged
at high tide and form part of the Philippines’ exclusive economic zone (EEZ). The tribunal said
it found “as a matter of fact” that China had interfered with a Philippine oil exploration at Recto
Bank.
But the tribunal said it lacked jurisdiction to consider the implications of a standoff between
Philippine marines and Chinese naval and law enforcement vessels at the Ayungin Shoal, as
such dispute involved military activities and therefore excluded from compulsory settlement.
The court also ruled that none of the Spratly Islands is capable of generating extended
maritime zones. It also held that the Spratly Islands cannot generate maritime zones
collectively as a unit.
“Having found that none of the features claimed by China was capable of generating an
exclusive economic zone, the Tribunal found that it could – without delimiting a boundary –
declare that certain sea areas are within the exclusive economic zone of the Philippines,
because those areas are not overlapped by any possible entitlement of China.”
In light of limitations on compulsory dispute settlement under UNCLOS, the tribunal has
emphasized that it does not rule on any question of sovereignty over land territory and does
not delimit any boundary between parties involved.
Throughout the proceedings, the tribunal said it has taken steps to “test the accuracy of the
Philippines’ claims,” including requesting further written submissions and thorough questioning
of its representatives.
China has also made clear through the publication of a position paper in December 2014 and
in other official statements that, in its view, the tribunal lacks jurisdiction in this matter.
The Philippines, under former foreign secretary Albert del Rosario, is the first country to bring
China to court and challenge Beijing’s expansive and excessive claims in the South China
Sea.
Sitting in the tribunal were H.A. Soons of the Netherlands and Judge Rüdiger Wolfrum of
Germany. Judge Thomas A. Mensah served as president of the tribunal. 
Principal Philippine counsel Paul Reichler debunked China’s historic rights claim and how
these purported historic rights, supposedly derived from UNCLOS, in fact do not exist under
the convention’s provisions.
29. The Final Arbitral Award, West Philippine Sea. July 2016. Justice
Antonio Carpio. 
30. Benham Rise/ Philippine Rise. Paterno Esmaquel II, Philstar, May 2, 2012.