Even if the Philippines gets a favorable decision from the international tribunal on its overlapping claims with China in the South China Sea, don't expect the country to immediately gain the territories now already controlled by the Asian giant, international law expert and Senior Associate Justice Antonio Carpio said on Thursday night.
In an interview on "State of the Nation with Jessica Soho," Carpio said that a ruling by the International Tribunal on the Law of the Sea against China's historical claim and its unilateral nine-dad-line theory will just be the first step in the Philippines' bid to gain control over its stake based on the United Nations Conventions on the Laws of the Sea.
"It will take time. We should look at this as a long-term struggle, even an inter-generational struggle," said Carpio, who has been lecturing on the South China Sea dispute in the Philippines and abroad.
He said that if the ITLOS rules in favor of the Philippines, the country must then go "to the world community" by sponsoring a resolution at the UN General Assembly urging China to follow international law.
"I think if we will win, the majority of the nations of the world will support us in that resolution. And we will do this every year until China complies," Carpio said.
Nicaragua v. United States
"This generation will get the ruling. The next generation will convince the world [to support us], and maybe the generation after that will convince China. But we should not expect instant gratification here if we win this ruling," he added.
The Philippines' military is believed to be one of the least equipped in the world and is seen as no match to that of China.
The Philippines' military is believed to be one of the least equipped in the world and is seen as no match to that of China.
Carpio cited the case of the Republic of Nicaragua v. the United States of America, where the US was sued for supporting a rebellion and for deploying mines in the country's harbors.
In 1986, the International Court of Justice decided in favor of Nicaragua in the aspect of the US mining the harbors and said the US should pay damages.
Carpio pointed out that the US, like China in the arbitration case in the West Philippine Sea, refused to participate in the proceedings.
It took five resolutions, which the US vetoed, until the UN General Assembly passed one urging the US to follow the ruling and pay damages.
Although the US still refused to pay, it eventually gave Nicaragua half a billion dollars in aid in 1992 after a repeal of a Nicaraguan law requiring the government to seek compensation over the ICJ ruling, Carpio said.
"So, there was compliance in the end," he said.
Carpio added that compliance with the rulings of international tribunals like ICJ and ITLOS is at 97 percent, although getting compliance is a matter of time.
Protecting resources in the West Philippine Sea
He said that even if China ignores the ITLOS ruling, there are ways to protect resources like fuel deposits believed to be in the area. The Philippines can, he said, sue Chinese companies that drill in the West Philippine Sea as long as ITLOS has already decided in favor of the country.
"The most important thing is to get the ruling," he said.
The Philippines has insisted on using diplomacy and a rules-based approach to the South China Sea dispute, including resorting to arbitration by the international tribunal. It has also been urging the Association of South East Asian Nations to adopt a binding code of conduct in the South China Sea.
Hua Chunying, Chinese foreign ministry spokeswoman, told media during a daily briefing in Beijing on Thursday that "China does not accept and will not participate in the Philippines' arbitration case on the South China Sea issue. This position is very clear."
Hua added: "We believe that the Philippines' case is actually a political provocation in the guise of the law that seeks to deny China's national sovereignty and maritime rights in the South China Sea."
Senators Ferdinand Marcos Jr. and Francis Escudero have urged bilateral talks with China to resolve the maritime dispute.
But Carpio cautions that while an amicable settlement between the Philippines and China will be a good development, talks now might become a stumbling block for the Philippines' case at the arbitration court.
"Under UNCLOS, before you file an arbitration case, there must be negotiations in good faith," he said, and countries can only approach the court if the negotiations prove fruitless.
He said that bilateral talks now might bolster China's argument that the arbitration case is premature because negotiations are already going on.
"Since 1995, we have been holding negotiations for years. Everytime we sit down, they say there is nothing to discuss," Carpio said.
He said parties must make clear that any bilateral talks at this point are considered "post-negotiations" so they will not affect the arbitration case.
He said parties must make clear that any bilateral talks at this point are considered "post-negotiations" so they will not affect the arbitration case.
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