Sen. Francis Tolentino —Senate PRIB
MANILA, Philippines — The Philippines may file another case against China if it implements its new policy of detaining for up to 60 days without trial foreigners, particularly Filipinos, crossing waters it claims are under its jurisdiction, two senators said on Sunday.
“Should Beijing dare push through with this illegitimate regulation, the Philippines’ hand may be forced to sue them again in the Hague Tribunal,” Sen. Risa Hontiveros said in a statement, referring to the Permanent Court of Arbitration which ruled in 2016 that China’s “nine-dash-line” claims to almost the entire South China Sea were invalid.
Sen. Francis Tolentino expressed the same idea in an interview with radio dzBB, saying the government could file a new case against China before the International Tribunal for the Law of the Sea (Itlos) or the International Court of Justice (ICJ).
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“It’s clear in the Unclos (United Nations Convention on the Law of the Sea) that what China is doing is wrong. This is subject to another case. We can file a case before the Itlos or ICJ,” he said.
Under Beijing’s new policy, which will take effect on June 15, the China Coast Guard (CCG) has been authorized to detain “foreigners suspected of violating entry and exit control” in “waters under the jurisdiction of our country.”
‘Rogue nation’
Hontiveros said China’s new policy “only affirms her emerging reputation as a rogue nation.”
Citing the advice of former Supreme Court Senior Associate Justice Antonio Carpio, she said that in the meantime, the government must now urge allies such as the United States, Japan, Australia, France and other like-minded nations to oppose the “flagrant violation of international law by joining patrols within the Philippines’ exclusive economic zone.”
“China better abrogate this shameless policy. China better stop inciting violence in our waters. China better leave the West Philippine Sea alone,” Hontiveros said, noting that the civilian mission organized by the “Atin Ito” Coalition last week “clearly hit a nerve for China.”
“But instead of responding like a dignified country, she resorts to this tyrannical tactic that will only escalate tensions even further,” she said.
Last week, the Atin Ito Coalition led a convoy of fishing boats to distribute food and fuel to fishermen in the West Philippine Sea and in waters close to Panatag (Scarborough) Shoal.
‘We are the coastal state’
Tolentino stressed that Beijing’s new regulation violated international maritime laws.
“If that happens, there are provisions in Unclos, particularly Article 73, that clearly state the coastal state can impose penalties for violation of fisheries laws and regulations in the exclusive economic zone (EEZ), and may not include imprisonment,” he explained.
“Where [are] China’s maritime boundaries? Their border is only 12 nautical miles from the land mass of Hainan. That’s very far from Scarborough Shoal or Bajo de Masinloc. They cannot be considered the coastal state,” Tolentino said.
“We are the coastal state because it’s nearest to our EEZ. And as such, we should be the one implementing the laws related to immigration, customs, environment, fisheries. [China] has a reversed view [of the matter]… it’s very clear that we are the coastal state,” he added.
Tolentino earlier sponsored Senate Bill No. 2665, or the Philippine Archipelagic Sea Lanes Act, which proposes establishing a system of archipelagic sea lanes in Philippine waters.
Carpio, who has been vocal about the country’s fight to maintain sovereignty over its territorial waters, told the Inquirer on Saturday that Beijing’s new policy violated Unclos and the UN Charter.
He said that under Unclos, no state could “subject the high seas to its sovereignty,” while the UN Charter prohibited the “threat or use of force” to resolve territorial disputes among claimant countries.
Through the new China policy, Carpio observed that the CCG can detain and expel foreign vessels that enter the EEZs of the Philippines, Vietnam, Malaysia, Brunei and Indonesia, which also claim parts of the South China Sea.
‘No jurisdiction’
“Under Unclos, only the coastal state has sovereign rights and jurisdiction over its own EEZ,” he said, adding that China has no jurisdiction over the EEZs of other countries.
According to Carpio, China cannot arbitrarily set its sea borders, as these must conform with international laws, particularly Unclos.
Sea borders, he said, must be established within a country’s 22-kilometer territorial sea and EEZ, which should be measured from baselines along its coast.
In China’s case, the baseline should be “from the mainland or a habitable island,” Carpio added, noting that its sea borders should be measured from Hainan, its only habitable island.
Beijing has refused to recognize the 2016 arbitral ruling that said there was no legal basis for it to claim “historic rights to resources within the sea areas falling within the ‘nine-dash line.’”
‘Final, indisputable’
The Hague-based tribunal added that China had violated the Philippines’ sovereign rights by interfering with its fishing and petroleum exploration, constructing artificial islands, and failing to prevent Chinese fishermen from fishing within the country’s EEZ.
The Philippines first instituted arbitral proceedings against Beijing on Jan. 22, 2013, following a tense standoff at Panatag.
In May 2022, newly elected President Ferdinand Marcos Jr. stated that he would uphold the landmark decision and not let China trample on the country’s maritime rights.
Chinese Foreign Ministry spokesperson Wang Wenbin said in July of that same year that the arbitral ruling violated international law, including Unclos, making it “illegal, null and void.”
He added that they were “upholding international law” by neither upholding nor recognizing the ruling. He warned that they would address attempts to infringe on their sovereignty, rights and interests in accordance with the law.
Wang’s reaction came after the Philippines while marking the sixth anniversary of the 2016 ruling, said it was “final” and “indisputable.”
In July 2023, the Chinese Embassy in the Philippines accused the United States of being the “mastermind” behind the arbitration while forcing China to accept the ruling.
In March this year, amid China’s persistent hostile behavior in the West Philippine Sea, including its water cannon attacks on Filipino vessels conducting resupply missions, the Department of Foreign Affairs reiterated that the arbitral award was “final and binding.” —with a report from Inquirer Research.