By Adolfo Quizon Paglinawan

 

Part 7: Where Brawner sees War vs China sees Diplomacy

Over the weekend, the Manila Times came up with news that Philippine security forces completed a joint operation to assert the country’s authority over several small islands near Pagasa as China stepped up its activities in the area by seizing nearby Sandy Cay.

The inter-agency maritime operation, led by the Philippine Navy, the Philippine Coast Guard, and the Philippine National Police’s Maritime Group, deployed four teams aboard rubber boats to Cays 1, 2, and 3. The activity culminated with the planting of a Philippine flag on one of the cays.

What followed were the familiar verbosity and braggadocio accompanying the usual action of the National Task Force for the West Philippine Sea (NTF-WPS) to wit: “The operation showed ‘the unwavering dedication and commitment of the Philippine government to uphold its sovereignty, sovereign rights, and jurisdiction in the West Philippine Sea.

The press release added “(it) reinforces the Philippines’ adherence to a rules-based international order and its commitment to the peaceful resolution of disputes,” the task force said.

What a mouthful!

According to the 2016 Arbitral Ruling that we have adopted as part of the Philippine Maritime Zones Act, Pagasa is not an island but a rock. The arbitration merely classified the feature, but it did not, as it cannot, award the feature as belonging to Philippine sovereignty.

As a rock it is not capable of generating its own EEZ but can generate its own 12 nautical mile territorial waters.

We have however de facto sovereignty over the rock since the 2002 Declaration of Conduct. Our presence there is supported by Presidential Decree 1596 as one of the islands being claimed by the Philippines that was erstwhile part of the Kalayaan Island Group (KIG).

But it also claimed by China, Vietnam and Taiwan, hence the existence of a dispute.

What presents as another complication is under Paragraph 574, the claim of the KIG as an archipelago has been invalidated by the Arbitral Award.

Like Parola and Kota that we are also claiming under PD 1596, Pagasa falls outside the boundaries of our claim for 200 nautical miles of exclusive economic zone.

As always, the Philippine propaganda lumps sovereignty, sovereign rights and jurisdiction together, as if they were not asymmetrical terminologies with various implications.

As mentioned earlier, we only have de facto sovereignty over Pagasa, as our government is so lazy and inefficient in written codification of our claims under international law.

For one, there are no sovereign rights issue in Pagasa as there is no Kalayaan Island Group, and it is outside our claimed EEZ. And even if we grant those sovereign rights, there is no entitlement over the waters because UNCLOS classify it as high seas.

So what maritime jurisdiction do we have except for the 12 nautical mile entitlement of Pagasa as a rock?

Even that is relative because Sandy Cay which is three nautical miles away is also a rock that is also entitled to 12-nautical mile of territorial sea. Thus, under UNCLOS guidelines, the overlap between Pagasa ang Sandy Cay should be divided halfway if another state presents a stronger case for sovereignty over it.

Legalese, legalisms and lawfare

The use of the term “rules-based international order” is a verbal abuse. RBO is not international order, it is the will of the United States and its western allies that it applies often in contravention of international law.

So it is incompatible to peaceful resolution of disputes, as the west enforces RBO by force to the extent of war, onerous sanctions and blackmail.

Evidently, the NTF-WPS move on Sandy Cay was not proof of peaceful resolution because it was done unilaterally, and not with the prior agreement with any other claimant. In fact, commonsensically, it was a provocation.

Worse, except for the attempted occupation by Filipinos, we have no claim whatsover that can stand the ground in Sandy Cay. It is not part of PD 1596 nor is it covered by the Philippine Maritime Act.

After the Philippine team left, the Chinese coast guard reestablished “maritime control” over Sandy Cay, also known as Tiexian Reef, and landed on Sandy Cay to “exercise sovereignty and jurisdiction” over the rock, carry out an “inspection” and “collect video evidence regarding the illegal activities of the Philippine side.”

CCTV published a photograph of five black-clad people standing on the uninhabited reef as a dark inflatable boat bobbed in the nearby water. Another shot showed four coast guard officials posing with a national flag on the reef’s white surface, its broadcaster described as a “vow of sovereignty.”

The Chinese coast guard also “cleaned up leftover plastic bottles, wooden sticks and other debris and garbage on the reef,” the broadcaster said.

The Philippine operation is clearly a violation of the 2002 Declaration of Conduct establishes a status quo prohibiting any additional occupation of features in the South China Seas, unless resolved earlier by the parties or the approval of the Code of Conduct in the form of a treaty among the ASEAN countries and China.

Tolentino poop

The posturings of Senator Francis Tolentino that China’s action is “an outrageous assault on Philippine sovereignty,” is uselessly provocative and can be likened to a mad dog frothing in his mouth.

His rejoinder, “This brazen intrusion must be met by the strongest diplomatic and defensive measures” reveals a chronic modus – violate first and then call in the diplomats.

Tolentino proceeds to jingoism, “We must not allow foreign forces to trample upon our rights and dignity. The West Philippine Sea belongs to the Filipino people and no intimidation and act of aggression can ever change that.”

The rookie senator is the principal author of the Philippine Maritime Zones Act that in just a few months has been causing escalation in the tension in the South China Sea, instead of preventing it. It is bad law that only succeeds in obfuscating legalisms instead of birthing solutions with other claimant states.

This internal law has created many ghosts and chokepoints.

It cannot legislate for anything outside of our territorial limits, but the law provided for a territorial sea around Scarborough Shoal. This a gross violation of UNCLOS delimitation of maritime zones which is created in reference to land-based sovereignty.

In this regard, that land-based sovereignty over Scarborough Shoal belongs to China that is in effective control of the rock since 2012.

The law acknowledged Presidential Decree 1599 which provided archipelagic baselines demarcating the Kalayaan Island Group. The 2016 arbitral which this same law codified as part of it, however, disqualified KIG as an archipelago.

It legislated for a Luzon Sea that is not listed in the International Hydrographic Organization, the UN authority in worldwide mapping.

It legislated for jurisdiction over our claim for exclusive economic zone, but UNCLOS does not provide for sovereign rights for the surface of the EEZs that it considers as “high seas”.

So, what is left of the West Philippine Sea but a farce?

(However, the peanut gallery was last heard celebrating inclusion of a West Philippine Sea in Google, which can easily be done through a more than generous advertising budget.)

COC or RBO?

The only mode acceptable to China is bilateral negotiations.

But in 2002, a multilateral Declaration of Conduct was signed by the Association of Southeast Asian Nations (ASEAN)and China, part of which says: 

“5. The Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.

“Pending the peaceful settlement of territorial and jurisdictional disputes, the Parties concerned undertake to intensify efforts to seek ways, in the spirit of cooperation and understanding, to build trust and confidence between and among them…”

The intention of this DOC is to eventually finalize it into the level of a Code of Conduct that will be more comprehensive and binding.

On May 13 to 15 last year, diplomats from the DOC parties met in Thailand, and agreed to maintain peace and stability in South China Sea, continue to fully and effectively implement DOC, remain self-restraint, keep the momentum of dialogue and consultation, and finalize the Code of Conduct (COC) at an early date.

Since 2002, however, an elephant has persistently insisted to enter the room.

The American role in potentially stunting the COC for the South China Sea stems from its strategic competition with China and the United States’ commitment to upholding a rules-based order (RBO).

Rules-based order is not international law. In an editorial published by the Cambridge University Press last February 2023, it clarifies:

“RBO is something other than international law. It is an alternative regime outside the discipline of international law which inevitably challenges and threatens international law… it may be seen as a competing order which seeks to impose the interpretation of international law that best advances the interests of the West, particularly those of the United States to ensure its dominance.

The United States is not even a member of the UN Convention of the Law of the Seas, and yet its dirty finger can be felt everywhere in the region.

So, in the lieu of a right-is-might settlement, or minimally in the absence of pre-agreed protocols, what presently rules is might-is-right enforcement by China.

The Chinese, after 100 years of humiliation from the colonial powers, are very sensitive about its red-lines in the South China Seas. Their sovereignty in the South China Seas is non-negotiable.

Sharing the sea

But China recognizes that the seas are for the common heritage of mankind.

Its willingness to share the waters and land features, however, must be reached by bilateral negotiations. A ministry of foreign affairs spokesman recently said those who swings the pendulum to the other extreme would “perish by fire”, meaning war.

The renewal of the routine resupply protocol for the BRP Sierra Madre at Ayungin Shoal, proves this. China’s offer of a 60-40 sharing of the proceeds of the oil and gas exploration at Reed Bank, with China footing all the development tab, proves this. Allowing fisherfolk to do their trade within the 12 nm of Scarborough Shoal territorial sea, but not too close to the shoal and definitely not inside the lagoon, proves this. Maintaining to be our top trading partner over the US and Japan combined, despite all the animosities in the South China Seas, proves this.

This policy is not even Xi Jinping alone. It started with Deng Xiaoping.

When Vice President Salvador Laurel visited China in June, 1986: Deng said – “We should leave aside the issue of the Nansha Islands for a while. We should not let this issue stand in the way of China’s friendship with the Philippines and with other countries.”

Deng reiterated the idea when he met visiting Filipino President Aquino in April, 1988 saying: “In view of the friendly relations between our two countries, we can set aside this issue for the time being because that won’t be resolved in their lifetime.”

The Chinese leader suggested joint development.

Our claims in the South China Seas have not been maximized because it is a bridge to nowhere, because the Philippine is only standing on the basis of one treaty – the UN Convention on the Law of the Sea, that it hopes to enforce only on the strength of rules-based order and with a cold-war attitude.

Tolentino back-to-school

The common misunderstanding is that UNCLOS, while exercising no jurisdiction on delimitations pertaining to historic rights and titles, does not recognize historic rights and titles. Of course, it does. We have already proven this by citing Paragraph 272 of the Arbitral Award. 

In his book, The History and Sovereignty of South China Sea, British professor John Anthony Carty said – “I have found my research in the archives astonishing!” as he uncovered a legal report by the British Foreign Office presented to its cabinet and prime minister James Callaghan to the effect that it is indisputable that China is sole titleholder of the Nasha Islands (Spratlys).

“This British record is not just the opinion of an individual lawyer, but a product of an immense amount of research that the foreign ministry did in London, investigating all the archives and all of correspondence they had with other countries for a period of 100 years,” Arty explained. 

             The Philippine-side has run out of narrative. After Barbie used it in a movie, the nine-dash line has burned out.

In contrast, China has not changed its bottom lines by an iota.  It remains resolute in regulating conduct in the South China Seas – so much that outside of any agreed protocol with another claimant state, it implements its law enforcement, measuredly but with no exceptions.

Unless it springs out of a negotiation table, without interference from any third parties, specifically a foreign country. #

To be continued – What Arbitral Victory are you talking about? 

   

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