TO be honest, I find it a sad commentary on our Supreme Court as an institution that a person like Antonio Carpio, who served as justice there for 17 years and purportedly wrote important court decisions, continues to ignore the facts, and because of his pro-United States stance, chooses to fan the embers of anti-Chinese sentiment in the country.
He has been doing this by spreading lies about the decision on an arbitration case that the Philippines brought against China over our disputes in the South China Sea.
In a recent article in his favorite newspaper, Carpio insists that the arbitration panel ruled that Subi (Zamora) Reef is part of our sovereign territory. The Chinese have, since the turn of the century, claimed Subi Reef and have occupied it since 1988, and have reclaimed land to build massive installations on it right after the Philippines filed its arbitration suit against China in 2013. We claim it as one of the features of our Kalayaan Island Group, which President Marcos annexed into our territory in 1978.
Carpio struggled to extract this claim by pointing out in his article: “The tribunal categorically declared that Subi Reef is part of the territorial sea of Thitu Island, which is also known as Pag-asa Island, the largest island occupied by the Philippines in the Spratlys.”
He argued: “Paragraph 373 of the award declared…that ‘Subi Reef would fall within the territorial sea of Thitu as extended by basepoints on the low-tide elevations of the reefs to the west of the island’.”
Carpio was patently lying that the tribunal was “categorical” in declaring Subi as part of our territory. This is obvious in the modal verb the tribunal used: “would fall,” with that kind of verb expressing a hypothetical, even uncertain case.
The “would” was used to hypothesize that Subi, even if it’s just a low-tide elevation, could fall within the territorial sea of Thitu if the guidelines as stipulated in the UN Law of the Sea (Unclos) are followed in determining its territorial sea — whichever country is the rightful owner of Thitu. But neither China nor the Philippines has submitted to the Unclos its declarations determining the island’s territorial sea.
It is strange indeed that Carpio, who claims he wrote over 900 Supreme Court decisions, can’t see that this issue regarding Thitu is an obiter dictum, an “aside” that is not an essential part of a tribunal’s decision.
Carpio tries to pull a trick on his readers’ minds when he described Thitu as “Pag-asa Island, the largest island occupied by the Philippines,” and therefore Subi Reef is “within the Pag-asa Island’s territorial sea.” The tribunal of course didn’t even refer to it as Philippine-claimed or -occupied.
This goes to the core of Carpio’s colossal misreading — or deliberate misreading — of the tribunal’s ruling.
The tribunal did not rule and refused to rule on sovereignty claims by China and the Philippines on any disputed feature in the South China Sea. It did not rule on who owns Pag-asa Island, on the entire Kalayaan Island Group, not even on Scarborough Shoal, or what we have called for two centuries as Bajo de Masinloc, which is just 241 kilometers off Zambales. If it did not rule who owns Pag-asa, Carpio cannot claim that Subi Reef is part of our territory since it’s within the island’s territorial sea, according to the tribunal’s obiter dictum.
I have discussed this issue exhaustively in detail in two recent columns.* Suffice it here to quote verbatim two paragraphs of the tribunal’s own words on this issue — which strangely are invisible to Carpio’s eyes.
In the very first two pages of its award, the tribunal pointed out: “Unclos does not address the sovereignty of States over land territory. Accordingly, this Tribunal has not been asked to, and does not purport to, make any ruling as to which State enjoys sovereignty over any land territory in the South China Sea, in particular with respect to the disputes concerning sovereignty over the Spratly Islands or Scarborough Shoal. None of the Tribunal’s decisions in this Award are dependent on a finding of sovereignty, nor should anything in this Award be understood to imply a view with respect to questions of land sovereignty.”
The tribunal indeed repeated this important point several times in its award, for instance in page 296: “The Tribunal has not addressed — and will not address — the question of which State has sovereignty over Sandy Cay, Thitu, or Scarborough Shoal and would thus have an entitlement to the surrounding territorial sea.”
Carpio struggled to claim that Subi Reef is part of our territory to support former foreign secretary Albert del Rosario and his former colleague Conchita Carpio Morales’ rather inane suit filed in March 2019 at the International Criminal Court (ICC) charging China’s President Xi Jinping of “ordering the massive reclamation and island-building in the Spratlys that resulted in the destruction of several atoll reefs, including Mischief Reef and Subi Reef.” I was told that suit was Carpio’s brainchild and he even drafted the two former officials’ communications.
The ICC’s Office of the Prosecutor trashed Carpio’s project when it said on Dec. 5, 2019, that Xi cannot be prosecuted before the ICC because the crime charged was not committed within Philippine territory. Carpio claimed the prosecutor was wrong as it had overlooked that part of the tribunal’s decision that said that Subi Reef was part of Thitu’s territorial sea — which obviously was just an “aside,” an obiter dictum.
On Monday I’ll discuss why del Rosario and Morales’ allegations of the massive environmental damage caused by the massive installations that China built based on that part of the tribunal’s ruling that confirmed to the world that it was a tribunal biased against the Chinese. A preview: The report claiming environmental damage to the coral because of installations the Chinese built on the reefs they had occupied was done by three Western experts in 17 days, who didn’t see any part of the South China Sea, but was simply a review of “the literature” on the topic, mainly those on studies on coral reefs in Australia and Hawaii.
I don’t think del Rosario, Carpio and Morales even read the report, titled “Assessment of the potential environmental consequence of construction activities on seven reefs in the Spratly Islands in the South China Sea.”
Never mind del Rosario, who I am convinced really knows nothing about our territorial dispute with China. But two Supreme Court justices — Carpio and Morales — filing a suit against the head of a super-power, without even reading the evidence?
I have written many columns on our territorial dispute with China since our relationship with the Asian superpower, whether we like it or not, especially as the American empire is in decline, is the most important foreign policy in this era, which would have immense impact on our country’s economy. To go to the bottom of this issue has become urgent because the US has employed a massive propaganda campaign to demonize China, with the Yellow Cult, which has always been the American stooge, at the head of the mob against the superpower.
I challenge Carpio, academic Jay Batongbacal, the writers at that vainly named Albert del Rosario Institute for Strategic Studies that the former Yellow Foreign Affairs secretary has set up together with a US think-tank to fool the nation on our disputes with China, and those still cheering that huge blunder that was the arbitration suit against China, to rebut my arguments and data — for the sake of the nation. I hope Carpio can start this debate by responding directly to this column.
I will try to convince this newspaper’s publisher to run your pieces verbatim. If he doesn’t agree, I promise to use my column’s space to publish these, with the caveat that these are reasonably succinctly written to be accommodated in the spaces allotted to me.
* “Arbitral PH case vs China: A colossal deception,” Dec. 25, 2019 and “Sovereignty claims, not maritime entitlements,” Dec. 27, 2019.