By Adolfo Quizon Paglinawan
Part One: Our Confused Foreign Policy
Insofar as the United Nations Convention of the Laws of the Seas or the 2016 Award of the Permanent Court of Arbitration, or both, guess which of these possibilities apply to Defense (DND) Officer-In-Charge Carlito Galvez Jr. –
1. The former chief of staff of the Armed Forces of the Philippines has not read the complete documents.
2. He has read one or both, but cannot understand the documents.
3. He has read one or both, but is in denial of its true import and implications.
4. He is under instructions from the Americans to cherry-pick the substantives that will only benefit himself, the United States and its allies.
This is because, in my honest opinion (IMHO), he has deteriorated into becoming a geopolitical karaokist coughing-out purely American propaganda encouraging foreign defense ministers, officials, and diplomats to support the 2016 Permanent Court of Arbitration (PCA) ruling which rejected China’s expansive claims in the South China Sea.
Actually, it sounded like his speech was written by the US Embassy in Manila Bay, or their subaltern thinktank Stratbase Albert del Rosario Institute, an adjunct of the Center for Strategic and International Studies based in Washington DC, aping the positions of United Kingdom Secretary of State for Defense Ben Wallace and Canadian Minister of National Defense Anita Anand on the topic “Building a Stable and Balanced Asia-Pacific” during the International Institute for Strategic Studies Shangri-La Dialogue (SLD) held recently in Singapore.
In his statement, Galvez pointed out the role of international law as the “greatest equalizer” among states, but made his first error contradicting himself when he called the PCA as a “compulsory dispute settlement mechanism” of the UNCLOS.
That arbitration was not an UNCLOS compulsory proceeding but a private arbitration filed by the Philippines, and in which China did not participate. By that alone, it already violated first customary international law, which is over and above UNCLOS, and second, commonsense that dictates voluntary arbitrations must essentially have at least two parties to begin with.
The United Nations has already clarified it has nothing to do with the Permanent Court of Arbitration (PCA), which set up a tribunal that handled the South China Sea arbitration case the Philippines filed unilaterally in 2013. Asked about the Arbitral Tribunal’s case’s ruling on July 12, 2016, Stephane Dujarric, spokesman for UN Secretary-General Ban Ki-moon said “The UN doesn’t have a position on the legal and procedural merits” of the South China Sea arbitration case.
Besides, both China and the Philippines acting separately, opted-out of the compulsory provisions of UNCLOS, after signing, after ratification and anytime within the prescribed period allowed by the treaty for signatories to harmonize their municipal or domestic laws with the Convention. Both China and the Philippines formally manifested and declared to the UN, “bilateral negotiation” as their procedure of choice in the settlement of disputes.
The Philippines, also agreed in its Joint Communique of June 9, 1975 establishing diplomatic relations with China, to employ bilateral negotiations as their procedure of choice in the settlement of disputes between their two countries.
When the Philippines, therefore, filed the arbitration case, it was already bullying China, by framing and imposing a conduct not erstwhile acceptable to both parties. To emphasize at the risk of redundancy, in bilateral negotiations, both parties agree on whatever outcome arises thereby precluding the involvement of a third-party referee.
This reduces Galvez’s call in the Singapore dialogue “upholding the primacy of the rule-of-law and the continued pursuit of dialogue and multilateralism” to absurdity.
From the start, it was the Philippines that violated the rule of law being the pre-agreed bilateral process between the Philippines and China. As only the Philippines participated, there was no dialogue. The matter of multilateralism is also superfluous because by its very filing solo with the PCA, the Philippines was acting unilaterally.
Galvez was also guilty of diarrhea of the mouth when he said the 2016 ruling “will preserve the global order at sea and uphold the universally recognized principles of international law.”
By the widest stretch of my imagination, how can a unilateral act of one country imposed on another, arrive at global order at sea? On the contrary, unilateralism engenders conflict and confusion. In fact, as the defense officer-in-charge himself admits “strains on the security environment in the region” has already increased.
UNCLOS is a treaty, that Galvez carelessly confuses with customary international law which represents what he parenthesized as universally-recognized principles of international law. When there is a conflict between UNCLOS and customary international law, the latter prevails.
The whole architecture of the PCA tribunal, and its references to UNCLOS that only took in effect in 1982, rests on its letter that China’s nine-dash claim over the South China Sea has no legal basis.
But that tribunal ruling was under the legalese in terms of maritime entitlement peculiar to sovereign rights within an Exclusive Economic Zone.
China, however, does not claim the nine-dash line as an EEZ but as territorial sea, a subject that invokes a more superior claim of “sovereignty” or ownership over the Philippines claim to an EEZ.
This is sovereignty 101 for Galvez.
EEZs cannot not protrude territorial seas. In EEZs, a coastal state only enjoys sovereign rights, or maritime entitlements for the use to what is under the water.
Ipso facto, the surface of the water remains to be international waters.
There, if only to drive home an important distinction, coastal states do not “own” its 200 nautical miles EEZ.
So what can a coastal state own? A coastal State exercises sovereignty over its territorial sea, the airspace above it, and the seabed and subsoil beneath it.
UNCLOS, itself provides, that it does not govern territorial sovereignty disputes over land or land features in the oceans and seas. Territorial sovereignty disputes over land or land features – that is, islands, reefs and rocks above water at high tide – are governed by the rules and principles of general international law.
According to the letter of UNCLOS, a coastal State may claim a territorial sea that extends seaward up to 12 nautical miles (nm) from its baselines. The coastal State exercises sovereignty over its territorial sea, the airspace above it, and the seabed and subsoil beneath it.
The issue unique to China is that its nine-dash line exceeds that 12 nm, so where lies the solution to this apparent contradiction?
What confuses many, is that left to the letter of UNCLOS, and granting just for the sake of argument that the PCA tribunal organized by the Philippines was perfected, China’s nine-dash line has no legal basis.
But that sweeping conclusion altogether dismisses the fact that UNCLOS only became effective in 1982, and all of its legal claim is imbedded in history, not just of China but the whole world.
Hence the phrase, China’s historic and legal rights.
Isn’t it curious that the party that makes the most bone out of this controversy, the United Sates, is not even a member of UNCLOS?
For the United States and demagogues who believe that they have yanked out the nine-dash line, ops let us not rush to a sweeping conclusion, as obviously we cannot resolve this issue under UNCLOS or an imperfect PCA ruling.
The matter must be elevated to the International Court of Justice, for interpretation, as it belongs to the province of customary international law way beyond UNCLOS and predating it not just by centuries but millennia.
Yet that has been mooted and academic by the reality that arguendo, they get a favorable ruling from the ICJ dismissing the nine-dash line, China and most probably Russia, acting as permanent members of the UN Security Council, can always veto its enforcement.
This is why China has been enforcing its presence within the nine-dash line, even at times aggressively, because in customary international law according to Australian expert Carl Thayer, proof of ownership means the actual occupation, sustained administration, effective control and if necessary, defense of a given territory.
Galvez and the Americans will not tell you that China is merely asserting its sovereignty when they challenge ships or aircrafts of other flags passing the South China Seas.
Their $500-million disinformation strategy, provided by a recent America Competes Act, would call any enforcement by China, “bullying”, using the pyrrhic “Philippine victory at the 2016 PCA award” as sole basis, but they will never risk telling you any further – as they might expose the devil that is in the details.
That said, China will do what it believes to be in its national interest, and continuing to enforce its will through active presence in the South China Seas.
For its part, the Americans have already convinced the President Bongbong Marcos Jr. to augment their bases in the Philippines from five to nine under the Enhanced Defense Cooperation Agreement, so that the US can preposition troops, military hardware including ships, aircrafts, armaments and supplies there in anticipation of war with China.
At first Galvez tried to sugar-coat US presence in Philippine soil as part of what he called “human assistance and disaster relief” (HADR). But it did not take long for his line to turn ridiculous when the American started demonstrating the use of High Mobility Artillery Rocket System (HIMARS) in some of the bases.
The prepositioning of US arms aimed at China became more obvious, as the Americans chose locations where airstrips could be improved or built for their F-22 Raptors and F35 Lightnings.
Obviously embarrassing the Armed Forces of the Philippines with his previous lie, the defense officer-in-charge changed his talking points from HADR to “deterrence”.
The Marcos government made its obnoxious plan clearer when it announced that it was organizing joint SCS patrols with the US, Japan and Australia, synchronizing the language closer to the Philippines soft-entry into the US Indo-Pacific geopolitical strategy.
This is significant because in the joint statement of the US Secretary of Defense Lloyd James Austin and President Marcos Jr., United States and the Philippines’ reaffirmed “their ‘ironclad’ alliance commitments under the 1951 Mutual Defense Treaty (MDT) and their shared resolve to defend against armed attacks on their aircraft, public vessels, and armed forces – to include their respective Coast Guards – in the Pacific, including anywhere in the South China Sea.”
This is curious because the MDT does not cover the South China Seas, but only longitudes and latitudes defined by the 1898 Treaty of Paris and the 1900 Treaty of Washington, as defined by Republic Act 9522, our 2009 baselines law.
Outside of this area, the proposed joint patrols, just like our present Philippine Coast Guard, would be lost at sea.
These joint patrols are being proposed by American warmongers so it would be convenient for the United States to stage another of its “rules-based” justification to spark a war inventing an incident as it did in the sinking of the battleship Maine on February 15, 1898 in the Havana harbor of Cuba, leading to a US naval blockade of Cuba and a declaration of war against Spain.
This is the country that spooked the world claiming Saddam Hussein had weapons of mass destruction (WMD) in Iraq, the same country that claimed the Talibans were hiding Osama Bin Laden in Afghanistan, the same country that abandoned the Vietnamese and left Korea in a state of armistice ending three years of hot war from 1950 to 1953, but has not established peace establishing the reality of two Koreas, the north and the south.
Let us not lose sight that we are dealing here with a dangerous hegemon that is still engaged in the present war in Ukraine after spending $8-trillion of its taxpayers money for the past 22 years to stage war around the world all, of which it has lost.
In 2021, this amount was only $6.4 trillion spent in wars and military operations in 85 countries, killing 801,000 people including 335,000 civilians and caused 37 million people to become refugees.
During its 240 years of history, there were only 16 years when the US was not at war. It initiated 201 of the 248 or 81% of the armed conflicts in the world from the end of World War II up to 2001, dropping 326,000 bombs and missiles on other countries, an equivalent of 40 per day.
Galvez’ narrow understanding of UNCLOS, his twisted perception of the PCA ruling and his theory of deterrence sucks, because in this case, China is not our enemy and as we speak China is not a war with any country.
In fact, on June 8, 2023, President Marcos Jr, will lead in honoring the third Awards for Promoting Philippine-China Understanding by keynoting the event at the Manila Hotel.
Under his first year in office, however, our foreign policy has been generally confused and conflicted which reminds me that in the movie Heneral (Antonio) Luna, the great Filipino warrior and hero, exclaimed, “May mas malaki tayong kalaban kaysa mga Amerikano–ang ating sarili.”
(We have a bigger enemy than the Americans – ourselves.)
To be continued. Next – China’s legal and historical claim and how we became a poor loser in the 2016 PCA awards.