VERA FILES FACT CHECK: Marcoleta makes two inaccurate claims on former SC justice Carpio, West PH Sea arbitral award

House Deputy Speaker Rodante Marcoleta claimed that former Supreme Court (SC) associate justice Antonio Carpio filed a case against Chinese President Xi Jinping before the International Court of Justice (ICJ) in March 2019. This is false.

Marcoleta, a SAGIP party-list representative, also made a misleading claim when he said the Philippines “got no remedy” from the 2016 South China Sea arbitral award at the Permanent Court of Arbitration (PCA).

STATEMENT

In the Aug. 7 episode of his talk show with AnaKalusugan Rep. Michael “Mike” Defensor produced by SMNI News Channel, Marcoleta asked why Facebook (FB) does not “block” information coming from the political opposition related to the West Philippine Sea dispute.

He then said:

Halimbawa, si Justice Carpio. Maraming hindi nakakaalam … nung 2019 ay gumawa ‘yan ng communication, isinubmit niya sa International Court of … Justice. [...] [I]sinumbong niya ang China, si President Xi Jinping na gumawa ng krimen against humanity sapagkat ang teritoryo daw ay na-violate sa South China Sea. “

(For example, Justice Carpio. Many people do not know … that in 2019, he made a communication and submitted it to the International Court of ... Justice. He complained about China — [he said] President Xi Jinping committed a crime against humanity because [our] territory in the South China Sea was supposedly violated.)

Source: AnaKalusugan Partylist Cong. Mike Defensor Official Facebook Page, Point Of Order | August 07, 2021, Aug. 7, 2021, watch from 35:19 to 36:51

Marcoleta added:

[P]inipilit nila (opposition) na ipamukha sa ating pangulo na hindi niya nae-execute ang ipinanalo natin sa arbitral award samantalang hindi nila sinasabi na wala tayong ipinanalo … Wala tayong award na nakuha, walang remedyong nakuha kung ang pag-uusapan ay ang pagbabawal sa Tsina sa mga aktibidad na ginagawa niya sa South China Sea.”

(They insist that the president is not executing our victory from the arbitral award, but they are not saying that we did not win anything … We did not receive any award, we did not get any remedy if we’re going to talk about prohibiting China’s activities in the South China Sea.)

Source: watch from 38:14 to 38:45

The two lawmakers questioned FB’s supposed “censorship” when the technology platform blocked Defensor’s FB page for violating its community standards. (See VERA FILES FACT CHECK: Marcoleta, Defensor insist on unproven claim that Ivermectin protects and treats COVID-19)

FACT

Former ombudsman Conchita Carpio-Morales and former Foreign Affairs secretary Albert del Rosario, not Carpio, filed a case on March 15, 2019 at the International Criminal Court (ICC), not the ICJ, for alleged crimes against humanity committed by Chinese officials, including Xi.

In an Aug. 15 email to VERA Files Fact Check, Carpio said:

“The ‘communication’ to the ICC that President Xi and his high government officials committed a crime against humanity with respect to the destruction to the marine environment in the West Philippine Sea was filed earlier by former Sec. del Rosario and former Ombudswoman Carpio Morales.”

Source: Personal communication (email), The “communication”..., Aug. 15, 2021

No official records or news reports show that Carpio, who was still an associate justice at the time, filed a complaint against China or Xi before the ICJ, or that he filed the communication with Carpio-Morales and Del Rosario at the ICC.

(See VERA FILES FACT CHECK: An Int’l court did NOT scold Carpio on WPS issue)

ICJ is the “principal” court of the United Nations (UN) that settles legal disputes between states, such as arbitral disputes, in accordance with international law. The ICC, on the other hand, was established by the Rome Statute and is an “independent judicial body distinct from the UN.” It presides over the “gravest” crimes of international concern, namely: crimes against humanity, crimes of aggression, war crimes, and genocide.

Information sent to both courts are kept “confidential” based on a review of their respective procedural rules (see ICJ, ICC).

Carpio retired from the high court in October 2019, seven months after the communication was filed at the ICC.

The ICC Office of the Prosecutor dismissed the communication, citing lack of jurisdiction over the matter partly because the alleged crimes “did not occur in the territory of the Philippines, but rather in areas outside of its territory,” specifically its exclusive economic zone (EEZ) and continental shelf. But it also noted the “possibility” for senders to submit “further information in light of new facts and evidence.”

(See VERA FILES FACT SHEET: ICC’s preliminary examination update on drug war, explained)

In September 2020, Del Rosario announced that Carpio had joined him and Carpio-Morales as counsel and that they would submit new information about the case to the court prosecutor.

On the 2016 arbitral award

As a party to the United Nations Convention on the Law of the Sea (UNCLOS), China is still bound by the 2016 arbitral ruling that deemed invalid its nine-dash line claim, which covers almost the entire South China Sea (SCS). (See VERA FILES FACT CHECK: Duterte is wrong; South China Sea arbitral award binds China, too)

The award also declared certain maritime features — such as the Recto (Reed) Bank and Panganiban (Mischief) Reef — within the Philippines’ EEZ and that China “had violated the Philippines’ sovereign rights” in the area by constructing artificial islands and failing to prevent Chinese fisherfolk from operating in the zone, among other activities.

An EEZ is an area “beyond and adjacent to the territorial sea” of a coastal country, such as the Philippines, as defined by the UNCLOS.

Under Article 58 of UNCLOS, a state (in this case, China) must “comply with the laws and regulations” that the coastal state (the Philippines) has adopted within its EEZ. (See VERA FILES FACT CHECK: Pro-Duterte blogger makes multiple inaccurate claims on West Philippine Sea, arbitral ruling)

On FB’s third-party fact checkers

In the course of Marcoleta’s remarks against FB, he implicitly claimed that the platform’s third-party fact checkers block pages, accounts, and groups for spreading misinformation. This is not true. (See VERA FILES FACT SHEET: Facebook’s third-party fact-checking program in PH explained)

Facebook has three third-party fact-checking partners in the Philippines: VERA Files Fact Check, Rappler, and AFP Philippines.


Sources

Permanent Court of Arbitration, About Us, Accessed Aug. 19, 2021

AnaKalusugan Partylist Cong. Mike Defensor Official Facebook Page, Point Of Order | August 07, 2021, Aug. 7, 2021

On the 2019 communication

On the arbitral award


(Guided by the code of principles of the International Fact-Checking Network at Poynter, VERA Files tracks the false claims, flip-flops, misleading statements of public officials and figures, and debunks them with factual evidence. Find out more about this initiative and our methodology.)

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