Experts warn PCA ruling may become irrelevant with Duterte admin's inaction
Filipino legal luminaries warned on Tuesday that the Permanent Court of Arbitration's ruling favoring the Philippine claim in the South China Sea may become irrelevant with the Duterte administration's failure to insist on the award.
The warning came as the country marks the second year anniversary since the Hague-based United Nations Arbitral Tribunal came out with the award to the Philippines on July 12, invalidating the historic and sovereign claim of China in almost the entire South China Sea through its nine-dash line.
In a forum with the Foreign Correspondents Association of the Philippines, former Solicitor General Florin Hilbay raised concern there would come a time Philippine actions could be construed as a "waiver or estoppel."
"This is I think is China's strategy, which is to get a waiver or find basis in making it a waive for estoppel on the part of the Philippines," he said.
Under the law and jurisprudence, a waiver is a voluntary and intentional abandonment or relinquishment of a known right.
Estoppel arises when one, by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts.
The Supreme Court, in its decisions, held waiver and estoppel are frequently used as convertible terms.
"Once waiver came in, estoppel will come in," said Hilbay, who was the Philippine Solgen when the Aquino administration filed a petition before the PCA.
He said there is "legal and moral obligation for the government to enforce the (PCA) decision."
Jay Batongbacal, an associate professor at the University of the Philippines College of Law, said if the Duterte administration would not insist on the PCA ruling, the decision would "literally become a piece of paper."
He said the Philippines should be consistent that certain portions in the South China Sea, including the Scarborough Shoal, is within the Philippine exclusive economic zone.
In the case of Scarborough Shoal, Batongbacal challenged the government to secure a "written commitment" from China that it would not build a structure in the area, the same way that it constructed artificial islands in other parts of the South China Sea, including those within the Philippine EEZ.
He also underscored the need for the Philippines to reestablish its presence in the Scarborough Shoal, not only the presence of fishermen, but of the Philippine Coast Guard and Filipino scientists.
Dindo Manhit, president of Statbase ADR Institute, reiterated the call to the Duterte administration "to rethink their approach in dealing with China."
President Rodrigo Duterte has taken a softer stance with China and decided to put the PCA ruling on the back burner.
But he vowed to bring it up with China at the right time before his term ends. Celerina Monte/DMS