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We celebrate this week the 10th anniversary of the landmark July 12, 2016 Arbitral Award which gave the Philippines a sweeping victory in defending its sovereign rights in the West Philippine Sea against China.
There are two core issues decided in the July 12, 2016 Arbitral Award. First, China’s 9, now 10-dash line cannot claim waters or maritime resources in the South China Sea. Claims to historic rights beyond the territorial sea have been extinguished by the 1982 UN Convention on the Law of the Sea (UNCLOS). States can only claim, beyond the territorial sea, waters and resources based on the provisions of UNCLOS.
Second, an island above water at high tide is entitled to a 200 nautical mile (NM) Exclusive Economic Zone (EEZ) only if the island can sustain, at a proper standard, a stable community of people based on the natural resources of the island. Desalination plants or imported garden soil do not count. None of the islands in the Spratlys is habitable based on these criteria and thus none of these islands is entitled to a 200-NM EEZ.
Consequently, there are no overlapping EEZs between the Philippines and China even assuming, for the sake of argument, that China has a valid claim, which it does not, to the Spratlys. The Philippines has a 200-NM EEZ in the West Philippine Sea unimpaired by China’s 10-dash line. Therefore, there are high seas between the EEZs of the Philippines and China. The 200-NM EEZ of the Philippines in the West Philippine Sea excludes high-tide features and territorial seas within this 200-NM EEZ.
The Arbitral Award is final and binding between the Philippines and China. It can no longer be amended, reversed or nullified UNLESS the Philippines subsequently, because of gross ignorance of the law or gross negligence, abandons the Arbitral Award or accepts China’s 10-dash line claim.
In 2017, when then-president Rodrigo Duterte arrived in Davao City from Brunei, he publicly declared that he was “setting aside” the Arbitral Award. In law, to set aside is to reverse or abandon. I immediately called up then-foreign secretary Enrique Manalo to warn him that this pronouncement of Duterte constituted a unilateral declaration binding on the Philippines once China accepted the pronouncement.
I recommended that the Department of Foreign Affairs (DFA) immediately correct this pronouncement and clarify that what the President meant was that he was “putting aside” the Arbitral Award to raise it at the appropriate time in the future, not “setting aside” the Arbitral Award to abandon it. Thankfully, the DFA immediately clarified Duterte’s pronouncement, a few hours before China issued a statement welcoming and accepting Duterte’s pronouncement.
Of course, then-president Duterte continued to blabber publicly that he would ignore the Arbitral Award. I had to publicly explain the legal significance of Duterte’s statements, and this is how the Philippine Star reported my explanation in its September 15, 2019 issue:
Thus, “the president can temporarily ‘put aside’ the ruling and assert it at an appropriate future time,” the justice said.
While choosing to assert the ruling at a later time, the Philippines must still protest any act of China that infringes on the country’s sovereign rights in the West Philippine Sea.
“Any acquiescence or implied consent can result in the loss of our sovereign rights under the arbitral ruling. The Duterte administration, and the Filipino people, must always be vigilant to avoid such acquiescence or implied consent,” Carpio said.
Yes, we must forever remain vigilant in protecting our sovereign rights in the West Philippine Sea.
Last December 22, 2025, China ratified the High Seas Treaty, also known as the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement, which, as the title indicates, applies only to waters beyond national jurisdiction.
In its ratification, China included a formal declaration that there are no high seas in the South China Sea and thus the High Seas Treaty does not apply to the South China Sea. China claims that the waters within the 10-dash line are China’s jurisdictional waters and thus the High Seas Treaty does not apply to waters enclosed by China’s 10-dash line.
In short, China claims that its 10-dash line prevents the existence of any high seas in the South China Sea, as well as EEZs of other states, within the waters enclosed by the 10-dash line. Of course, geographically under UNCLOS, there are high seas in the South China Sea.
Under the Doctrine of Acquiescence in international law, unless the Philippines protests this Declaration of China within a reasonable period, the Philippines is deemed to have acquiesced to China’s claim that there are no high seas in the South China Sea.
There are serious adverse consequences to the Philippines for such acquiescence. First, Filipino fishermen can no longer fish in the high seas of the South China Sea. These high seas constitute at least one-fifth of the maritime area of the South China Sea.
Second, Philippine companies can no longer apply for permits to explore and exploit the mineral resources in the seabed of the South China Sea high seas because these mineral resources are within China’s national jurisdiction.
Third, China will claim that the Philippines’ subsequent acquiescence supersedes the July 12, 2016 Arbitral Award, which declared that China’s 10-dash line cannot claim waters or resources within Philippine EEZ. This will provide China with a new argument that other states should withhold their support for the July 12, 2016 Arbitral Award until this new supervening event is properly addressed. This argument is China’s new lawfare to nullify the July 12, 2016 Arbitral Award.
To prevent these prejudicial consequences, the Philippines should simply protest China’s Declaration that the High Seas Treaty does not apply to the South China Sea. It does not cost the Philippines anything to protest but it will cost the Philippines irreparably if it does not protest.
There is neither rhyme nor reason for not protesting. We have everything to gain and nothing to lose by protesting. Failure to protest will result in a self-inflicted irreparable harm to our national interest, while protesting will prevent such self-inflicted harm to our national interest.
So, let us protest forthwith, agad agad. – Rappler.com
*Justice Carpio is a retired senior associate justice of the Supreme Court.
