Jurist Doctor Ventures on Unchartered Waters to Comment on EDCA

 

By Adolfo Quizon Paglinawan

 

Father Ranhilio Callangan Aquino came out with this article in the Manila Times (March 27, 2023), entitled “EDCA: To be or not to be”, which I am reprinting in full.

But with all due respects, let me say that I have no comments on his first four paragraphs, to which he is entitled expressing his own personal opinion.

(Paragraphs 1 to 4) “HOLDING that the Enhanced Defense Cooperation Agreement (EDCA) was pursuant to the Visiting Forces Agreement (VFA) and the Mutual Defense Treaty (MDT) between the United States and the Philippines, the Supreme Court upheld the constitutionality of EDCA, maintaining that it was not EDCA that allowed foreign troops into the country but the Visiting Forces Agreement. This too was the subject of constitutional litigation, and the Supreme Court upheld its constitutionality.

“The VFA case was itself interesting because it squarely dealt with the issue that while for the Philippines, it was a treaty, for the US, it was an executive agreement. The Supreme Court, relying largely on the representation of the US government that it conducted most of its foreign affairs in executive agreements, ruled that for as long as the agreement “had the effect of a treaty” on the US, the requirements of the Philippine Constitution were met.

“It ruled that the EDCA was an executive agreement entered into by the president in implementation of existing treaties and statutes — and was therefore properly the subject of an executive agreement that called for no Senate concurrence.

“Since President Ferdinand Marcos Jr. has declared that he favors the implementation of the agreement, the next issue is deciding on where the military exercises take place and where the American troops are to temporarily make camp. Some local government officials have voiced misgivings, claiming that their constituents do not want to be caught between warring factions.”

But proceeding from there, Father Ranhilio introduced dissonance as he ventured on unchartered waters, that he obviously has no competence on. I will later cite why he is in deep error. Let us continue reading his inputs.

(Paragraphs 5 to the end of his article) “Of course, there is no war, neither is there an imminent threat of one. China, it should not be surprising, is vehemently against EDCA and has warned the Philippines against engaging in military exercises with the Americans, but it would be as detrimental to our sovereignty as a nation to buckle down because China has bared its fangs.

 “In fact, it has done so many times in the past, and for all the rhetoric and the bombast from our end following incursions of China into maritime zones in the West Philippine Sea over which the Philippines has sovereign rights, we have done very little to put China in its place. Perhaps we have decided that we cannot do it, and that is probably right — strategically.

“But that is the reason that aside from strategic action, there is normatively regulated action: action that arises from norms and is sanctioned by them. If the only kind of action there was strategic, then certainly it would be foolhardy for the Philippines to even attempt to stand in the way of a giant like China.

“But the moment we adopt this posture, then small, weak, powerless nations do not stand a chance against the bullying of the huge and the mighty — and that is certainly no world order that is a welcome proposition to any state, or to anyone, for that matter!

“That is what I have always insisted about the arbitral decision in the case between the Philippines and the People’s Republic of China. It transposes the exchange from the level of strategy to the level of normativity. It asks about the norms of conduct by which both parties must regulate their actions — and the pronouncement of the tribunal leaves no doubt that the rights are on our side, and that China has been — and remains — in violation of law.

“In blatant transgression of the tribunal’s judgment, it has converted features into military bastions and taken its firepower closer to the Philippines. Now, it tells us that we should not allow Americans to challenge her dominance over the troubled waters on our western seaboard? By what logic? By what law? And by what inanity should we, Filipinos, insist that China means well, and that it would not be in our interest to provoke her by joining with Americans in military exercises.

“No, America is not the lily-white hegemon with motives pure and intentions immutably fair. It has had its own share of shenanigans and double-dealing. But its sins are not the issue here.

“The point is whether it makes sense to desist from alliances with the United States in respect to this very limited field of defense preparedness and readiness at China’s bidding, the very country that has thumbed its nose at international law and our rights?

“Some local officials have reportedly profited from deals made with Chinese corporations over resources of the country within their respective constituencies. If so, then their opposition to EDCA and to military exercises in their localities is as unprincipled as their shady deals.

“It is not a question of canonizing one hegemon as good and the other as evil. No one is engaged in such childish characterizations. What we have to do with rather is the stark reality that China has fired water cannons at our fishing boats, shooed our fishermen away from the Scarborough Shoal, cordoned off reefs and features well within our exclusive economic zone and simply shoved aside a legally rendered judgment of a competent tribunal that had adjudicated on our rights over this section of the sea.

“And then there is the useful point made by Foucault that after the Treaty of Westphalia, balance of power has become a crucial consideration, and the painful, hurtful and disappointing events of late in this part of the world have warned us quite clearly I think about the deleteriousness of a lack of balance!”

Dear Father Ranhilio:

In the first place there was no arbitration.

An arbitration denotes at least two participants. China did not participate. Only the Philippines engaged in the proceedings, chose the jurors and paid for the entire process.

Research what Ambassador Rosario Manalo said about it.

https://www.un.org/depts/los/convention_agreements/convention_declarations.htm#:~:text=Article%20310%20of%20the%20Convention,the%20provisions%20of%20the%20Convention

The Permanent Court of Arbitration was not a court, nor was it permanent. It was a kangaroo exercise – its ruling was unilateral. It was not sanctioned by the United Nations; it was not in any way the compulsory arbitration provided for in UNCLOS, which China and the Philippines opted out of in its declarations upon signing and ratification to harmonize it with their respective municipal laws.

Now you want it applied to China? Truth is – You have not read or studied UNCLOS, the United Nations Convention on Laws of the Seas. You are shooting from your hips.

You have not also read or studied the Arbitral Ruling you are citing that denied the Kalayaan Group as a regime of islands, minimizing it to “mere rocks”.

Being an arbitration, as you say, its ruling only applies to the participating party. Especially its provision on the “nine-dash line”. If so, the Philippines is the only party that can enforce it. So can we enforce it? And if we cannot, we accuse China of “bullying”.

We have not even amended RA 9522 redefining our baselines according to our updated claim as in President Marcos’ Kalayaan Island Group and Noynoy Aquino’s “West Philippine Seas”. So what longitudes and latitudes are our Coast Guard ships using in patrolling the seas? You want China to take its proper place when without those legislated longitudes and latitudes, we are the ones lost at sea? And when China calls our attention, we accuse them of intruding into our space?

https://www.facebook.com/watch/?v=1336176580111703

https://www.pna.gov.ph/articles/1142887https://www.pna.gov.ph/articles/1142887

What space? Who authorized those delimitations?

Truth to tell, we have fallen into the American propaganda game. We even hired American lawyers to the tune of $7 million to argue our case in the trumped-up at the Hague when all they want is to declare the nine-dash line as “illegal”.

But nobody told the phantom tribunal the claims of China (PROC) were based on those lines that Taiwan (PRC) drew?

PROC’s claims are based on historical and legal facts that the 1951 Treaty of San Francisco ignored and failed to return territories that Japan invaded in the Second World War, including the entire South China Seas, and the Daoiyu (Senkaku) Islands to China (and the Kuril group to the Russians).

Our total expenditure for this fake arbitration was over a billion pesos of taxpayers money, spent just to kiss the American ass.

Again, read carefully the 2016 arbitral “ruling”, and find out for yourself that it even minimized the Kalayaan Island Group by declaring our claims there as not being a regime of islands but “mere rocks”, which in the letter of the UNCLOS, cannot generate an exclusive economic zone of 200 nautical miles.

Father Ranhilio, as a jurist doctor, please do your homework and stop spewing poison in your column.

 
<strong>Adolfo Quizon Paglinawan</strong>
Adolfo Quizon Paglinawan

is the anchor of Ang Maestro – the Unfinished Revolution at Radyo Pilipinas1, co-host of Opinyon Ngayon at Golden Nation Network Television, a political analyst, and author of books. His third book, The Poverty of Power will soon be off-the-press. It is a historiography of controversial issues of spanning 36 years leading to the Demise of the Edsa Revolution and the Rise of the Philippine Phoenix. Paglinawan’s past best sellers have been A Problem for Every Solution (2015), a characterization of factors affecting Philippine-China relations, and No Vaccine for a Virus called Racism (2020) a survey of international news attempting to tracing its origins. These important achievements earned for him to be named one of the 2021 international laureates for the Awards for the Promotion of Philippine-China Understanding. Ado, as he called for short, was a former press attaché and spokesman of the Philippine Embassy in Washington DC and the Philippines’ Permanent Mission to the United Nations in New York. Facebook

 

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