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World | National

Carpio: Saying PH can't stop China from building in Panatag pushes China more

SC Senior Associate Justice Antonio Carpio: Philippine President can do five things to help boost country's position in defending its rights to disputed territory, and last but not the least is this: "avoid any act, statement, or declaration that expressly or impliedly waives Philippine sovereignty to any Philippine territory in the West Philippine Sea."
The online news portal of TV5

MANILA - Supreme Court Senior Associate Justice Antonio Carpio took a dig Monday at President Rodrigo Duterte for saying he could not stop China from building on the disputed Scarborough Shoal also known as Panatag Shoal because it was too powerful. 

"The President is the Commander-in-Chief of the Armed Forces, which are expressly tasked by the Constitution to defend the national territory. Under RA No. 9522, Scarborough Shoal is part of Philippine national territory... Any statement that the Philippines cannot stop China from building on Scarborough Shoal actually encourages China to build on Scarborough Shoal," Carpio wrote in a statement.

He listed the powers of the commander-in-chief, and alluded to Sunday's pre-departure remarks by the President that even if China has announced it would soon build structures on Scarborough shoal - off the western side of Luzon - there was nothing he could do to stop Beijing.

It was reported earlier that the mayor of China's Sansha City said the Asian giant - which continues to defy a July 2016 ruling by a UN arbitral tribunal favoring Manila - would set up an environmental monitoring station on Scarborough Shoal.

Sought for comment, Duterte told journalists before departing for Myanmar, "We cannot stop China from doing (these) things."

"What do you want me to do? Declare war against China? I can't. We will lose all our military and policemen tomorrow and we (will be) a destroyed nation," he added.

Duterte said he would tell the Chinese: "Just keep it (the waters) open and do not interfere with our coast guard."

Carpio on Monday listed five things Duterte can do to "fulfill his constitutional duty" given that "the Philippines is no match to China militarily".

First - and the least Duterte can do according to Carpio - is to "file a strong formal protest against the Chinese building activity".  

Carpio explained that the Vietnamese did this recently when China sent cruise tours to the disputed Paracel Islands.

Second, Duterte can "send the Philippine Navy to patrol Scarborough Shoal". Should the Chinese attack, Duterte can "invoke the Philippine-US Mutual Defense Treaty, which covers any armed attack on Philippine navy vessels operating in the South China Sea". 

Third, Duterte can "ask the United States to declare that Scarborough Shoal is part of Philippine territory for purposes of the Phil-US Mutual Defense Treaty".

To back this up, Carpio's source - The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea - says that from the 1960s to the 1980s, American and Philippine militaries used Scarborough Shoal "as an impact range for their warplanes and warships". American and Philippine authorities then issued Notices to Mariners worldwide when they would hold "bombing runs or gunnery exercises". 

"Not a single country registered any protest to these military activities," the source said.

Fourth, Duterte can "accept the standing U.S. offer to hold joint naval patrols in the South China Sea," which will "demonstrate joint Philippine and U.S. determination to prevent China from building on Scarborough Shoal".

Finally, Duterte can "avoid any act, statement, or declaration that expressly or impliedly waives Philippine sovereignty to any Philippine territory in the West Philippine Sea."

China has freedom of navigation in Benham Rise

Carpio also issued a statement on Benham Rise, an undersea land mass east of Luzon which the Philippines has an undisputed claim to. 

Early this month, Defense Secretary Delfin Lorenzana said Chinese ships had been spotted in the area, citing reports that China may be scouting for sites to park its submarines in.

To the issue, Duterte had replied, "So what if they stop there? They admit it is within the territory of the Philippines. That does not satisfy you?".

Carpio explained that Benham Rise was not part of Philippine national territory under international law, and therefore the country did not have sovereignty over it.

He stressed, however, that the country did have sovereign rights - which was "less than sovereignty, but exclusive and superior to the rights of all other states" - over Benham Rise.

Under the United Nations Convention on the Law of the Sea (UNCLOS), the Philippines had the "sovereign right to explore and exploit the oil, gas, and other mineral resources... (and) the sedentary species such as abalone, clams, and oysters" in Benham Rise.

He noted that China had the right to look for submarine passages and parking spaces, as this was "part of freedom of navigation".

China, as well as other states, also had the right to conduct the following in Benham Rise: "fishery research because the fish in the Extended Continental Shelf (ECS) belongs to mankind; surveys on water salinity and water currents because the water column in the ECS belongs to mankind; and depth soundings for navigational purposes because there is freedom of navigation in the ECS".

If the Chinese vessels spotted in Benham Rise "were conducting seismic surveys to look for oil, gas, and minerals", however, they would be violating the UNCLOS. Therefore, said Carpio, the question about whether the country had indeed been doing that must be asked.