Duterte’s claim that 2016 Arbitral ruling does not bind China is ‘totally false’ — Carpio

Published July 28, 2021, 6:59 PM

by Roy Mabasa

Former Supreme Court Associate Justice Antonio Carpio on Wednesday branded as “totally false” the statement made by President Duterte that the 2016 Arbitral ruling does not bind China because it never took part in the arbitration proceedings.

Carpio made his rebuttal to the President’s statement at the post-SONA media forum of 1Sambayan. Carpio, along with former Ombudsman Conchita Carpio-Morales and former Foreign Affairs Secretary Albert Del Rosario are co-convenors of 1Sambayan.

The former High Court magistrate said the President uttered “beautiful words” when he repeated in his last SONA the statement he made before the United Nations General Assembly (UNGA) last year that “the arbitral award is now part of international law beyond compromise and beyond the reach of passing governments to dilute, diminish or abandon.”

Carpio, however, took exception to the President’s succeeding adlib at his SONA.

“This is what he said, ‘What will I do with the document that does not bind China because they were never part of the arbitration. There was no really arbitration at all because it was only the Philippine side that was heard.’ This is totally false,” the former SC senior associate justice pointed out.

Contrary to Duterte’s statement, Carpio said China was given all the opportunity by the arbitral tribunal to present its side, adding that China even submitted its position paper while saying that they are not participating in the arbitration.

During proceedings conducted by the Permanent Court of Arbitration in The Hague, Carpio said China was given copies of the transcripts of every hearing but refused.

Duterte, he added, only repeated the position of China that the arbitral award is void because it did not take part in the arbitration.

“President Duterte has remained faithful to the Chinese propaganda line that the arbitral award is a mere scrap of paper because China never participated in the arbitration. China and President Duterte are grossly mistaken,” Carpio said.

He argued that when China ratified the United Nations Convention on the Law of the Sea (UNCLOS) in 1996, it not only gave its consent in advance like any other state party to UNCLOS but also agreed that it will submit itself to arbitration.

When China ratified the UN document, Carpio said China agreed to abide by the UNCLOS rule which states, “Absence of a party or failure of a party to defend its case shall not constitute a part to the proceedings.”

The former justice stressed that China cannot complain because it is very clear in the UNCLOS rules that if we do not appear, the arbitration will continue, and “China agreed to this.”

“The jurisdiction of an UNCLOS Tribunal is conferred by law and not by the state parties. The jurisdiction of the arbitral tribunal in the South China Sea arbitration was conferred by UNCLOS, which is the law among all states that ratified UNCLOS. As state party that is sued under UNCLOS can’t oust the Tribunal from its jurisdiction by refusing to appear in the case,” Carpio further explained.

While the UNCLOS is very clear on its rules, Carpio lamented that Duterte has chosen to accept the Chinese position against the Philippine position on the validity of the arbitration.