By Adolfo Quizon Paglinawan

 

Part 5 of a Series of 5: Escalation Suggested by Newsweek Report

Defense Secretary Gilberto Teodoro was mostly correct when he told Karen Davila that China “is converting the South China Sea into a lake of China”, except in the tense he employed.

As far as China is concerned, it has always been China’s lake.

But Teodoro went overboard when he added, “this is part of their narrative, part of their move, to unilaterally pound to submission other countries to acquiesce into what international law, with respect to law of the sea is.”

China’s claims are not unilateral, but legitimized by its historical rights and customary law.  Alarm bells have been ringing because a 1989 bar topnotcher who is Teodoro, overlooked this.

At one instance, Teodoro irresponsibly called China a “squatter”.

The interview deteriorated into propaganda when on the third minute, Davila asked a leading question, “Right now they have detected five Chinese vessels in Ayungin Shoal, clearly within Philippine waters, within our EEZ … what should the Philippines do?” 

What is clear is that shoal is not within Philippine waters because it is outside our 12 nautical mile territorial sea.

That it could be considered as our exclusive economic zone because it is within 200 nautical miles from Palawan, in fact, 115 nm, has also been defaulted by the fact that the 2016 Arbitral award itself has declared the area as a “quintessentially militarized area” in its Paragraph 1161.

How can an EEZ function in a militarized area? It is even the Philippines that militarized it by running aground the BRP Sierra Madre there.

Even former associate justice Antonio Carpio, who has been the leading prevaricator in issues affecting the South China Seas for almost 12 years, now acknowledges this fact. The former magistrate presently advocates to civilianize the area.

Teodoro just melted before Davila and said “the Philippines must move China out of there”.

This extreme motion was nowhere his initial pronouncements of “deconflicting” the contested areas when he took office, but now the defense secretary sounded confrontational.                                                    

“We must continue our pro-active diplomacy and engagements with like-minded countries whether in the region or outside, he added.”

Diplomacy with like minds?

Teodoro continued on, “We have to educate our people that the requests for bilateral negotiations without a framework, without accepted ground rules is a weapon by China merely to delay us while it continues to swarm and effectively deny us the ability to dominate area.”

Ground rules before negotiations?

The defense secretary does not seem to realize that he is suggesting a reset of our diplomatic relations with China by putting “preconditions” to the June 9, 1975 Joint Communique of China and the Philippines that was inked by Ferdinand Edralin Marcos Sr.

Less than a month returning to his former seat in Camp Aguinaldo, Teodoro quickly evolved onto becoming unreasonably adversarial against China, even repeating on many occasions the worn-out argument of the 2016 Arbitral ruling that “nine-dash line” has no legal basis.” Worse, the defense secretary has even resorted “gangsterism” tactics, inviting other foreign countries to joint patrols with the Philippines in its excursions into the South China Seas.

Germany’s posturing

The latest posturing was dealt by German Federal Foreign Minister Annalena Baerbock said China’s maritime claim was not supported by Arbitral award and that freedom of shipping routes is endangered in the South China Sea because political winds are blowing in the face of the rules-based international order in the South China Sea.

The Chinese Embassy in Manila responded by accusing Baerbock of “disregarding basic facts, disinformation, misrepresentation, and distortion of truth and making unwarranted accusations about China’s South China Sea policy and legitimate and lawful actions.”

The Embassy has correctly claimed the dispute between China and the Philippines in the South China Sea is in essence a dispute of territorial sovereignty, which is beyond the scope of the United Nations Convention on the Law of the Sea and does not concern the interpretation or application of the UNCLOS.

To be very graphic about it, the Philippine side deliberately interchanges the meanings of sovereignty and territory, which is not within the jurisdiction of UNCLOS, with that of sovereign rights and exclusive economic zones which is within the jurisdiction UNCLOS.

Not only does the Philippines deny the asymmetry, it is even in denial of the existence of a dispute because its position is “What is ours is Ours” oblivious of the fact it was only in 1978 that it only formalized its first claim in the area.

“China’s sovereignty, rights, and interests in the disputed waters have been established in the long course of history and are solidly grounded in history and the law, and are consistent with international law, including the UN Charter,” the Embassy insisted.

And I may add, historical rights, surviving three wars in recent history, the First and Second Sino-Japanese War and World War II, and confirmed through statutory construction by attendant communiques and treaties, that is de jure or legally.    

“”The Arbitral Tribunal violated the principle of state consent, exercised its jurisdiction ultra vires, and rendered an award in disregard of the law. Such an award is illegal, null and void, and completely invalid. China does not accept or recognize it and will never accept any claim or action based on the award,” the Embassy said.

The Arbitral tribunal also disregarded that in 2006, under Article 298 of UNCLOS, China made declarations consistent with the Convention provisions pertaining to exclusions relating to maritime boundary delimitation from the jurisdiction of a court or tribunal.

UNCLOS is not the entirety of international law. It is only a single treaty adopted in 1982 and took effect in 1994.

Moreover in accordance with customary international law, the South China Sea and all islands, rocks or low-tide elevations, as well as waters outside of other claimants’ 12 nautical miles, are ultimately China’s sovereign territory, by exercise of effective control. Former President Rodrigo Duterte confirmed this when he said China is in possession of the territory.

The embassy also reiterated that recent maritime incidents between China and the Philippines were not caused by China, stressing that it has taken measures to safeguard its territorial sovereignty and maritime rights and interests.

Indeed, contrary to what media irresponsibly calls “bullying”, China’s conduct in the South China Seas observe guidelines on law enforcement by Geneva Conventions, and of the North Atlantic Treaty Organizations, including the use on non-lethal weapons.

It was President Marcos Jr. who pivoted to the United States abandoning the continuity of an independent foreign policy that his predecessors have tried very hard to establish, even to the extent of rescinding a sensitive agreement on Ayungin Shoal.

China however reiterates “we are committed to properly handling disputes with the Philippines through dialogue and consultation to jointly maintain peace and stability in the South China Sea.

“No non-regional country has the right to interfere in the maritime disputes between China and the Philippines.”

Best solution to asymmetry

The solution, simply stated, is first to stop being a tool of the Americans in its pivot of its 60% of its military presence to the Asia Pacific. We must stop this buffoonery of mistaking our Armed Forces modernization with the real intentions of the United States’ Agile Combat Employment (ACE), and recently its Intermediate Force Capabilities, to use us as staging grounds against their perceived enemy.

Our military has been hypnotized by the Americans with donated equipment and corrupted by financial donations in exchange for transparency over how they really intend those weapons to be used in our EDCA bases.

The need for US deployment closer to China, in terms of smaller, flexible “base sites” covers the inutility of the its naval fleets from coming closer to the Chinese mainland because of the latter’s more advanced missile defenses, particularly the hypersonic “ship killers”, its maritime militia and drone swarms, its largest navy in the world, and finally its fifth and soon sixth generation air force.

As a result, the nine Philippine bases we have allowed for Americans to use under our Enhanced Defense Cooperation Agreement, may eventually serve as targets by Chinese, or North Korean, preemptive attacks using conventional as well as nuclear attacks which are allowed under international law.

Second, nothing but diplomacy, that is bilateral negotiations directly with China, is the most commonsensical way to move away from the divide-and-rule strategems of our former colonial master.

Continue with what are already on the table, the pre-existing fisheries and resupply protocols the 60-40 joint oil and gas exploration of the Reed Bank, pending infrastructure projects started during Duterte’s term, and the $23 billion package of grants, concessional loan and financial assistance in infrastructure and investments excluding tourism and people-to-people projects, promised by XI Jinping in January of 2023.

As to the hard issues of sovereignty, the best strategy should have been to position our sovereignty claims, as a Kalayaan archipelago within the Spratly archipelago within the South China Seas archipelago, outside and beyond UNCLOS specifications.

On the pursuance of peaceful coexistence which is a Chinese doctrine, this is a probability that has precedence in history – China ceded through bilateral negotiations two dash lines to Vietnam in the Gulf of Tonkin between the two countries, reducing the erstwhile eleven dash line to nine.

On the other hand, what we did was allow lawyers, like Teodoro, and before him warmongers, like OIC Charlie Galvez, to rule over diplomats. As a result, we have become vulnerable to the intrigues of foreign third parties and manipulation of local oligarchic greedy ambitions.

Instead of attempting to protect our interests by seeking legal clarity from an arbitration locked to only UNCLOS as norm, we should have allowed an aura of vagueness to enable us to negotiate with the Chinese on a bilateral basis for the simple reason that it is primarily only China that we have to face in the South China Seas.

Except during the administration of Duterte, and a glimpse of Arroyo, we have misread our history with China and now the new China that has emerged from its 100 years of humiliation onto becoming a superpower.

Xi Jinping has correctly analyzed why we find it difficult to step up to the plate. In the 2022 post-Covid pandemic Boao Forum, he exposed the demon:

“It has been proven time and again that the Cold War mentality would only wreck the global peace framework, that hegemonism and power politics would only endanger world peace, and that bloc confrontation would only exacerbate security challenges in the 21st century.”

China has already opened the doors of co-prosperity four years earlier in the 2018 Boao Forum when Xi Jinping said “I wish to make it clear to all that China’s door of opening-up will not be closed and will only open even wider.”

   

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