Part One: Building National Security on Realpolitik not Megaphonics
Under what rock have you been hiding, Mr. Teodoro?
You had 13 years of respite from public service since you were Secretary of National Defense under President Gloria Arroyo, but you sounded like you already acquired dementia.
I have always thought you made informed decisions, but this time you allowed yourself to ingest Charlie Galvez’ bigoted briefings instead of doing independent prep-works for your reappointment to Camp Aguinaldo.
What was this garble you said on your debut?
“As a stronger country, it has the bigger obligation to be magnanimous and show trust, and to earn the trust of the Filipino people, by conforming its activities to recognize norms of international law, which in our case is UNCLOS (United Nations Convention on the Law of the Sea).”
Allow me to subject your doublespeak to a content analysis for the benefit of the Filipino people.
First your assumption that to conform to international law one has to submit to UNCLOS, is quite a quagmire. You may have to seek clinics on the distinction of customary international law and treaty law.
Customary international law refers to legal obligations arising from established, general and consistent practices of states, as opposed to obligations arising from formal written conventions and treaties. On the other hand, treaty law binds only those states which have signed their consent to be bound by them, followed usually by ratification.
It may be argued that China and the Philippines both signed and ratified UNCLOS. While that may be true, UNCLOS just like any treaty, is not a dead-end instrument.
Treaties allow its signatory states, to (1) harmonize its letter and intent, with the signatory’s respective internal, municipal or domestic laws, to (2) disclose and declare, upon signing, during and after ratification, or for a reasonable prescriptive period, any contradictions and disavowals that arise, and to (3) propose appropriate alternative solutions unique to the signatory state.
China declared it was opting-out of UNCLOS compulsory arbitration clauses, in favor of bilateral negotiations. What is often not mentioned is that the Philippines, for different reasons and acting separately, also opted-out to favor bilateral negotiations.
On top of this, in the joint communique the Philippines signed with China in 1975 establishing diplomatic relations, the modus agreed upon by both countries in resolving disputes is bilateral negotiations.
In contradiction you added, “We’re talking about the arbitral award. It has already been stated by our two past presidents that our rights and our territory are defined by UNCLOS, and it has been stated too that this cannot be fritted away or bargained away by passages of administration or passage of time.”
What a mess, Mr. Teodoro, regardless of what those two presidents said, UNCLOS does not define territories, and rights under UNCLOS can be conflicted, and even be superseded.
Besides, the arbitration you are asserting as compulsory isn’t compulsory because if it were, it should have been convened under the International Tribunal for the Laws of the Seas (ITLOS), and not the Permanent Court of Arbitration.
In truth, it was a private and voluntary arbitration which falls not under UNCLOS but under general UN guidelines.
These facts and nuances show China is in conformity with UNCLOS-required exclusions, and categorically explain why it did not participate in the arbitration the Philippines registered with the Permanent Court of Arbitration on January 22, 2013.
Mr. Teodoro, please note that by resorting to arbitration, “voluntary” as it was although American geopolitical karaokists make it appear “compulsory”, the Philippines violated the agreed protocol of resolution as declared by both countries to the UN, and to each other, as being bilateral negotiation.
This is why Stephane Dujarric, spokesman for the UN secretary-general Ban Ki-Moon, when asked three years later when the PCA issued its “award”, said the UN 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 specifically clarifying that, “The UN doesn’t have a position on the legal and procedural merits” of case.
Using the PCA arbitral award therefore as any basis for what the Americans call “rules-based order” is flawed, for how can an arbitration be unilateral?
Even Common sense dictates it takes two to tango. An arbitration, to be legitimate, must involve at least two parties, with a set of jurors acts as referee and comes out with a ruling.
Your statement that “the arbitral tribunal is an impartial and independent body” is not only a fallacy but a lie. Not only was it not impartial, it was onerous. By insisting China participate against its will, the Philippines was expressly bullying China.
So, enough of these lawfare tactics that muddle the issues!
Apples and Oranges
Mr. Teodoro, the second thing you must know as a matter of fact is that the Chinese and the Philippine claims are not on the same footing.
The Philippine claim is on the basis of sovereign rights for use of an exclusive economic zone under UNCLOS, a treaty law. China’s claim is on the basis of sovereignty, or ownership on the basic of its historic legal rights established by customary international law.
Your arbitral tribunal’s ruling that the nine-dash line has “no legal basis” is based on only UNCLOS.
- UNCLOS has no power and authority to demarcate territorial land and sea, as sovereignty is a subject of customary international law.
- UNCLOS has the power and authority to award sovereignty rights and maritime entitlements for exclusive economic zones, but these entitlements cannot protrude sovereign land and territorial sea of another state.
- According to its own limitations, UNCLOS acknowledges only 12 nautical miles of territorial sea from a coastal state’s sovereign land.
- UNCLOs was adopted in 1982 and became effective in 1994.
On the other hand, note that
- Following UNCLOS protocol under Article 310 of the Convention, China had already made declarations, where UNCLOS contradicts its internal laws and its legal rights acquired through history.
- This acquisition, pertaining to the nine-dash line, had earlier than the effectivity of UNCLOS, become already become China’s territorial seas under customary international law.
- UNCLOS cannot have an ex-post facto effect on customary international law, as a specific law (treaty) can supersede a general law.
For the benefit of the readers, we are providing a brief historiography.
Sovereignty vs sovereign right
Sovereign right, is not ownership. UNCLOS itself defines this right as maritime entitlement to use and explore economic benefits from what is under water extending 200 nautical miles from the shores of a coastal state. It does not even include the surface of the sea, which continues to be international waters.
On the other hand, sovereignty includes the land and seas, including everything under it and the air space over it.
Protection of its sovereignty, in the spirit of active defense, is the raison d’etre behind China’s behavior in the South China Seas. You cannot shame China for “aggression” operating within what it considers its territorial waters.
Under customary law, sovereignty is the actual occupation, sustained administration and control over a given territory, and its defense when necessary.
You have to disabuse your President’s statement that the Philippines will not give up an inch of territory to China, referring to our claims in the South China Seas. But his word is empty unless Congress by legislation, precisely demarcates what is meant by “our” territory?
Being a former congressman, the best place you can start is updating our baselines law from its 2009 version, the Republic Act 9522, to make our intentions known.
China is not asking for us to give up anything, but to engage for the meantime that there is no permanent solution, into bilateral negotiations for a possible joint use of the resources involved.
No less than Deng Xiaoping spelled that out during President Arroyo’s term.
But the problem is what appears to be the Philippines official position is that we are denial that a dispute exists.
As a result, we boxed in China into game which we claim we won, but cannot enforce. In management, that calls for taking our strategies back to the drawing boards.
We cannot solve anything by being insensitive to accept where China is coming from. The cavalier attitude we conduct our presence in the South China Seas is consistent with the unilateralism we exhibited when we earlier baited China onto a voluntary arbitration process.
This is an attitude we inherited from our colonial master the Americans who practices “exceptionalism” as a superpower. Unwittingly, we hide under the perdition of this big brother mentality.
We even called it West Philippine Seas, despite the fact that we have presented no updated baselines to comply with UNCLOS standards.
Even granting for sake of argument that the arbitral award is valid, an arbitration process binds only the participating party, the Philippines. Worse, the award tasks it for its enforcement which is impossible because as President Rodrigo Duterte clarifies, “China is in possession of the territory” and if I may add – with much more the superior force.
Might is, indeed right.
To get therefore what we insist on getting from China, as evidenced by our behavior in the South China Seas, we have to war with and win over China, something that our implicit godfather the United States cannot even do.
During Duterte’s watch, however, a breath of fresh air came and following an accident involving a Chinese trawler and a Philippine fishing boat, as a bilateral mechanism addressing maritime disputes was setup between the Department of Foreign Affairs and the Chinese Embassy.
The bilateral mechanism clarified that our fishermen are allowed access in traditional fishing grounds, but both our Coast Guard and Navy should observe a protocol of pre-informing their Chinese counterparts of their intended activities when entering the disputed areas.
But we Filipinos prefer to bully China and afterwards cry about it in mainstream media rather than give that mechanism a chance.
How do we expect the Chinese to react when a vessel not of their flag inserts itself into their watch? Would not a surprise or an unannounced presence be easily misconstrued as an attack? Would not a simple advance information and request for cooperation go a long way?
Are we doing our share in avoiding situations of conflict with China? Or is our motive precisely to provoke China and create a situation?
Those who believe in 2016 arbitral ruling ought to know, that it abolish the baselines of the regime of islands demarcated by Marcos Sr.’s PD 1599 accompanying PD1596 creating the Kalayaan Island Group. It ruled the polygon as violative of UNCLOS.
What we therefore now claim are mere rocks, including Pagasa or Thitu Island, capable of generating only 12 nautical miles of territorial sea, but incapable of generating 200 EEZ. These are eight islets (four of which are cays) and three reefs, with an aggregate land area of approximately 79 hectares.
It is urgent that we dispassionately negotiate especially with the Chinese and the Vietnamese who have claims around us for overlaps and right of way, in order to access those 11 locations. Without a clear mutual understanding with our neighbors, our navy and coast guard would be lost at sea.
Determining factor for national interest
But Mr. Teodoro, you are correct when you injected sobriety into the discourse, “Relations between (our) two countries are not mono-dimensional; there are other relationships that we need to build up. China is a big market for this country and we realize that.”
That gives some gravitas to your impressive biodata, especially being a Harvardian – the time is opportune because China considers our maritime issues of least significance and do not embody the whole gamut of our bilateral relations.
You are therefore correct that the area must be “deconflicted”, especially if I may say from warmongers, racists, hawks and provocateurs, beginning from the Philippine Coast Guard and your subordinates in the Philippine Navy.
The reason sends a green laser to our eyes – China offered the Philippines 60% share in a joint oil and gas exploration at the Recto Reef (Reed Bank) area?
In Palawan’s Malampaya, the Anglo-Saxon and the Anglo-Dutch foreigners and now oligarchic crony only give us less than 10%.
So how about that for magnanimity?
To be continued. Next – The Balance Sheet orhow Duterte earned China’s trust.