By Adolfo Quizon Paglinawan

 

Part 6: Where Brawner sees war, China sees diplomacy

A Philippine Navy (PN) corvette BRP Apolinario Mabini (PS-36), illegally intruded the waters of Bajo de Masinloc (Scarborough or Panatag Shoal) last April 20 and was immediately expelled by the Chinese navy.

The Chinese People’s Liberation Army (PLA) Southern Theater Command tracked, monitored, and warned off the corvette, according to Senior Captain Zhao Zhiwei, spokesperson for the PLA Southern Theater Command: “We solemnly warn the Philippine side to immediately cease infringement and provocation. Otherwise, all consequences arising therefrom will be borne by the Philippine side,” he noted.

Rear Admiral Roy Vincent Trinidad, PN spokesperson for West Philippine Sea (WPS), responded with a discordant note: “Only the Philippine Navy and other Philippine flagged law enforcement ships have the authority and legal bases to challenge any ship within maritime zones.”

Trinidad’s statement is symptomatic of how our government (legislative first, then the executive) has been exposing our armed forces and our coast guard to a clear and present danger of risking their lives and safety out there, supported only by legalese. That is not only irresponsible but a dangerous provocation.

When is law a problem instead of solution?

It begins with the ambiguity that our lawmakers have wittingly planted into the Philippine Maritime Zones Act, which was signed by an unwitting President Marcos Jr, last November 8, 2024.

Republic Act 12064, provided for a general declaration of the maritime zones under the jurisdiction of the Philippines, which include internal waters, archipelagic waters, territorial sea, contiguous zone, exclusive economic zone (EEZ), and continental shelf.

But instead of clarifying issues and bridging diplomacy with other claimants in the South China Seas like Vietnam, Malaysia, Brunei, Taiwan and China, principal author Francis Tolentino was more interested in providing legalisms to justify our forays in waters outside of our territorial sea.

RA 12064 is a bad law and needs to be corrected by Congress. It directly attributes as basis, the UN Convention of the Laws of the Sea, and going to the extent of  enacting  the 2016 Arbitral Award as part of it, but it is replete in the violation of both documents.

A quick example is Section 2(b) that reads: “The maritime zones of the Philippines on the western side of the Philippine archipelago, including the Luzon Sea and the territorial seas of Bajo de Masinloc and the maritime features of the Kalayaan Island Group, shall be collectively called the West Philippine Sea.”

How can it include the territorial sea around Bajo de Masinloc or Scarbough Shoal when we do not own the feature and another state is exercising effective control there?

This provision of our maritime zones law is a perfect example of a “quickie” which when tolerated can lead to dangerous consequences. We have nothing to prove that the feature is ours, so we confiscate its territorial sea to mislead the non-thinking herd of ordinary Filipinos that if we pass a law saying we “own” the surrounding sea, the land feature inside must be ours?

What a heist!

Another quickie in the law adopts the maritime construct of the Kalayaan Island Group as provided for by Presidential Decree 1599. But this has been demolished by Paragraph 574 of the Arbitral Award in pursuance of Article 47 of the UNCLOS:

“(xxx)… even the Philippines could not declare archipelagic baselines surrounding the Spratly Islands.

“The ratio of water to land in the Spratly Islands would greatly exceed 9:1 under any conceivable system of baselines.”

Needless to say, without these two absurd inclusions under Section 2(b) of RA 12064 such as the Scarborough and the Spratlys, the intended “West Philippine Sea” becomes a farce, and reverts back to the Luzon Sea inside our inherited treaty limits.

Asymmetry ignored

But for the purpose of our focus today on Apolinario Mabini’s lame excuses, the greatest paralysis of our maritime zones act is that it did not specifically distinguish between Philippine “jurisdiction” of the Philippines to its 12 nautical miles of territorial sea, and “jurisdiction” to a 200-nautical mile exclusive economic zone.

The asymmetry illustrates that jurisdiction under sovereignty is absolute as in “ownership” while jurisdiction in EEZ is specific only for sovereign rights to “economic benefits”.

What is sovereignty?

Our Constitution defines our territorial sovereignty up to 12 nautical miles from our baselines,  

(as) “consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves and other submarine areas. The waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.”

Part II, Section 1, Article 2 (1) of UNCLOS, confirms this –

“The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. (2) This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.”

In layman’s terms this definition includes not only what is underwater in a state’s territorial sea but the surface of the water and the aerospace above it.

What is sovereign right?

On the other hand, the UN Convention of the Law of the Sea (UNCLOS) which took effect only in 1994, provides in Article 56 (1)(a) for

“The coastal state’s sovereign right (in its exclusive economic zone), to exploit or conserve any resources found within the water, on the sea floor, or under the sea floor’s subsoil, encompassing both living resources, such as fish, and non-living resources, such as oil and natural gas.”

The EEZ is a maritime zone beyond and adjacent to a coastal state’s territorial sea, where the coastal state has “specific” rights and jurisdiction, but not sovereignty, as such that coastal state does not own the surface of the water or the airspace above it. 

As a matter of fact, UNCLOS is very clear in Article 56 (3) that in exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of the Convention, a provision which was also incorporated in our maritime zones law.

In this respect – The surface of the water, however, remains to be high seas, or international waters, if no other state exercises sovereignty over it.

How the Philippine Navy lost Scarborough

So where is Trinidad coming from when he said “Only the Philippine Navy and other Philippine flagged law enforcement ships have the authority and legal bases to challenge any ship within maritime zones.”

How in heavens name did he become a vice admiral when he is an ignoramus in a field where he is supposed to be knowledgeable. Perhaps this lecture from my surprise “expert” can help him put his testosterone in its proper place.

Let us watch and listen to Philippine Coast Guard Commodore Jay Tristan Tarriela in this video:

So, under what stupid rock was Trinidad hiding on April 12, 2012?

May I also submit to Philippine Navy Commander, Vice Admiral Jose Ma. Ambrosio Q. Ezpeletaand to the AFP Chief of Staff Romeo Brawner – thiscorroborating documentation of Philippines Daily Inquirer:

“The Philippine Navy’s flagship, BRP Gregorio del Pilar, withdrew from the disputed Scarborough Shoal Thursday morning, as a third Chinese civilian ship entered the area on the third day of a standoff.

“Navy Flag Officer in Command Vice Admiral Alexander Pama confirmed that the BRP Gregorio del Pilar was being pulled out from Panatag Shoal to replenish fuel and food provisions at Poro Point in La Union province.”

This is the only honest statement so far in my Tarriela files – that China has been occupying and has effective and complete control of Bajo de Masinloc since our navy surrendered the area in 2012.

In customary international law, Australian geopolitical professor emeritus Carlisle Thayer defines sovereignty as the actual occupation and sustained administration and effective control of a given territory. And if I may add, defense if necessary. 

But to show that our government agencies are so convoluted and twisted on this topic, despite Tarriela’s affirmation, the PCG through the Philippine Information Agency has been issuing fake news in the recent BRP Cabra incident.

Sifting the weeds from the wheat

Abracadabra won’t do, let’s analyze the PCG fish tale.

First, the PCG is on the starboard side (right) allegedly patrolling the high seas 78 nm beyond our 12 nm territorial sea, that is approximately 18 nm from the 12 nm Chinese controlled territorial sea of Scarborough Shoal.

Second the Chinese Coast Guard is on the port side (left), travelling at a safe parallel distance overtaking the BRP Cabra.  

Third, but the PIA story also read, “The Philippine Coast Guard vessel, BRP Cabra, has successfully deterred the Chinese Coast Guard vessel CCG-3304 from approaching the Zambales coastline.”

What was happening here? Was the Cabra deterring the Chinese Coast Guard from the approaching the Zambales coastline 90 nm away and the Philippine’s territorial sea 78 nm away, or was the CCG 3304 deterring the Cabra from approaching China’s territorial sea off Scarborough Shoal which was 18 nm away?

Let’s do a content analysis of what the Cabra lady pilot was saying –

(0:00) “China Coast Guard Vessel 3304. This is Philippine Coast Guard Vessel BRP Cabra MRRV 4409. 

(0:10) “You are advised that you are currently sailing within Philippines Exclusive Economic Zone.

(0:18) “Approximately 78 nautical miles west by north of Point Grande, Zambales, Philippines. 

(0:25) “In accordance with Republic Act 12064 (the Philippine Maritime Zones Act), the United Nations Convention on the Law of the Sea of which you are a signatory state, 

(0:36) “and the 2016 Arbitral Award, you do not possess any legal authority to patrol within Philippines Exclusive Economic Zone.

(0:45) “You are directed to depart immediately and notify us of your intentions.

(0:50) “Your illegal activity will be reported to higher authority. Over. (0:58) Thank you.”

Fourth, the Philippine Coast Guard cannot unilaterally impose RA 12064 on China or any other country. It is an internal law of the Philippines.

Fifth, while UNCLOS provides up to 200 nautical miles of exclusive economic zone, the sovereign rights it bestows do not include the surface of the waters. It is the Cabra that was out of place.

Sixth, the Arbitral Award of 2016 applies only to the Philippines which was the sole participant in the arbitration.  

What is often maliciously omitted by the Philippine-side is that arbitration was not a compulsory arbitration before the International Tribunal of the Law of the Sea, but a voluntary arbitration registered with the Permanent of Arbitration.

 To compel China to obey a voluntary arbitration that it was not a party to, is in violation of the first principle in international law – state consent.

Seventh, but does this mean that the Philippines possess any legal authority to patrol in what it considers its exclusive economic zone?  Of course not, the Philippines does not have jurisdiction on what is over the water, and for that matter the aerospace above it.  (We have already took this up earlier when we defined what sovereign right is, as distinguished from sovereignty.)

Eight, technically, this is already high seas.

Granting for the sake of argument, that customary international law allows freedom of navigation in high seas, all vessels still have to follow the principle of innocent passage.

Patrolling is not innocent passage.

Ninth, so if the Philippines has no business patrolling there, what was the CCG 3304 doing in the vicinity? The position of Cabra explains it all: It was 78 nm from the Philippine territorial sea but 18 nm closing in Scarborough’s territorial sea.

CCGF 3304 is one of the ships assigned to patrol Scarborough Shoal’s territorial waters. The logical explanation is that CCG 3304 was making its presence felt, placing itself between Scarborough Shoal and Cabra, to warn the PCG not to go any closer.

Tenth and finally, the video showed that while it was on Cabra’s port side, it remained on a safe distance parallel, adopting a faster speed for a continuous and expeditious passage.

Conclusion

The Philippine Navy did worse. First unlike the PCG BRP Cabra which was a civilian law enforcement vessel or a white ship, BRP Apolinario Mabini is a navy or a gray ship. 

Second, the navy corvette entered the territorial sea of Scarborough Shoal’s under the pretext of a military exercise with foreign countries. This is not just a violation of innocent passage., but technically a declaration of and a provocation for war.

Let us thank China for restraining itself and not sinking or crippling the BRP Apolinario Mabini.

We will continue with this discussion in Part 7 where we deal with the devil in the details.

To be continued: Next – The Devil is in the details, footnotes contradict arbitral victory.

   

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