Part 13: Where Brawner sees War, China sees Diplomacy

I agree with former magistrate Antonio Carpio when he told a group chat “Armed seizure of another state’s territory is not a lawful means of acquiring territory under international law.”

In fact, this is codified in Article 2(4) of the United Nations Charter.

But the retiree is again pulling a fast one when he said “China’s armed seizure of Scarborough Shoal in 2012 did not, under international law, divest the Philippines of its centuries-old sovereignty over Scarborough Shoal.”

What armed seizure? What centuries-old sovereignty? Let’s fact-check.

First of all, this statement is based on a wrong premise. China’s acquisition of Scarborough was not an armed seizure.

After ten weeks of standoff in 2012, BRP Gregorio del Pilar withdrew from Scarborough Shoal on orders of President Aquino III, and abandoned the control of the area to the Chinese Coast Guard and civilian vessels. The turnover was peaceful, given the Philippine withdrawal. To this day, China has enforced its effective control of the shoal, its internal lagoon and its 12 nautical mile territorial sea.

What Carpio is covering up is the “armed seizure” by the Philippines of 8 Chinese civilian fishing boats that provoked and started the standoff , and is now misleading the public instead by how it ended.

On April 8, 2012, our Navy surveillance plane spotted eight Chinese fishing vessels anchored in the waters of the shoal. BRP Gregorio del Pilar was sent on the same day to survey the vicinity of the shoal, and confirm the presence of the fishing vessels and their ongoing activities. On April 10, 2012, armed military personnel of the Philippine navy ship BRP Gregorio del Pilar boarded the Chinese boats.

I have pictures to show to refresh Mr. Carpio’s mind.

This practice is frowned upon because the action of a “gray” military ship could be interpreted as a declaration of war on the flag that the boarded vessel, in this case a civilian ship, was flying. This is why maritime law enforcement at sea is wisely delegated to the “white” coast guard vessels.

When these pictures hit China’s social media, a nationwide uproar ensued necessitating Beijing to act on it resolutely. On hearing the news, China’s civilian marine surveillance ships “Haijian 75” and “Haijian 84” that were cruising nearby, along with the fishery administration ship “Yuzheng 303” that was stationed at Meiji Reef, quickly arrived on the scene to protect the Chinese fishermen. 

Second, how can there be a divestment of sovereignty when the Philippines has no sovereignty on the feature, centuries-old at that! The feature is at best a disputed area.

The assertion that Scarborough Shoal, despite the 2012 standoff, remains de jure under Philippine sovereignty, including Scarborough Shoal’s 12-mile territorial sea, is not only loaded but dangerous.

Responding to this conundrum, former President Rodrigo Duterte framed it properly when he said, “Unless we are prepared to go to war, I would suggest that we treat this as a diplomatic endeavor. China is claiming it, we are claiming it. China has the arms, we do not have it. So, it’s simple as that, they are in possession of the property.”

No less than Henry Kissinger when he was US secretary of State testified as to the supremacy of customary law in the exercise of sovereignty:

“Continuous, effective and uncontested occupation and administration of territory is a primary foundation for establishing sovereignty in absence of international settlement, but Philippine occupation could hardly be termed uncontested in face of claims and protests of Chinese and Vietnamese.”

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What evidence has the retired magistrate presented to prove this alleged century old sovereignty? The 1734 Velarde map was his best shot. Unfortunately, a map by itself doesn’t automatically attest to sovereignty. International legal and arbitral bodies tend to view maps as unreliable sources, or those created by one party to bolster its position, with limited credibility.

Carpio must stop carping around fake news and false narratives that blunt our diplomacy, and escalates conflict. He has a problem for every solution.

Deadend litigation

According to this retired magistrate, “to show to the world, including Filipinos (like me) that the Philippines has sovereignty over Scarborough Shoal, the Philippine government should publicly challenge China to submit to voluntary arbitration by the International Court of Justice the issue of which state – China or the Philippines – has sovereignty over Scarborough Shoal.

More waste of time. At the UN level, the enforcement arm of ICJ is the Security Council where China has a permanent seat and veto power. Under UNCLOS, China has already acquired a seat in the Internatyiona Tribunal on the Laws of the Sea (ITLOS).

Carpio added he has been recommending this to the Philippine government for the longest time to correct any misconception that the Philippines has lost, or never exercised, sovereignty over the feature. “The mere challenge to China to submit the sovereignty dispute to voluntary arbitration will lead to a public discussion on the factual and legal grounds why the Philippines has sovereignty over Scarborough Shoal.”

So propaganda only, which dulls our diplomatic leverage based on good faith, and fuels only more escalation that favor the war intentions of our favorite colonial master?

Carpio prides himself as the inspiration behind former DFA Secretary Albert del Rosario’s registering a voluntary arbitration against China in 2013 following the Scarborough standoff. What did we get in return to almost P1 billion we invested in that exercise, including $7 million that we paid for the American cum British law firm led by Paul Reichler?

Did we get Scarborough back? No. Since then we have used the legal opinion generated by the 2016 “Arbitral Award” as a victory when what we got not even binds China because it did not participate. As I will show later, the only thing we got was a reaffirmation of the traditional fishing grounds around the Scarborough, but the ruling left the regulation of the area with whoever is in possession of the shoal that is China.

As a result, just as we were arguing unilaterally at The Hague, China reclaimed eight islands in the South China Sea and fortified them in a record period changing the facts on the ground affecting regional geopolitics in its favor. 

What we got was basically a used toilet paper to wipe our faces because what happened was we boxed ourselves inside the provisions not only of a single treaty the United Nations Convention of the Law of the Sea but unwisely the rulings of the arbitral tribunal that blunts our legal flexibilities for future negotiations.

What we celebrate is Paragraph 278 that renders the “nine-dash line” has no legal basis under UNCLOS. This is true, but China has not based its claims in the SCS on the nine-dash line. The nine-dash applicability is just as good as Carpio’s 1734 Velarde map, a drawing that serves for information purposes only but has no probative nor final value for determination of sovereignty.

In real estate, what are the negotiable instruments? Deed of sale (mode of acquisition) and the Transfer Certificate of Title (treaty document). You can never own anything on the basis of the lot survey and location map only.

https://english.news.cn/20240529/ddfc8e31c49e40068bddd19df3d00c53/c.html

Here we lost twice. The Philippines even bolstered China position on historic titles. In the first portion of preceding Paragraph 272, the Arbitral Tribunal ruled:

“Finally, because the Tribunal considers the question of historic rights with respect to maritime areas to be entirely distinct from that of historic rights to land, the Tribunal considers it opportune to note that certain claims remain unaffected by this decision.

“In particular, the Tribunal emphasizes that nothing in this Award should be understood to comment in any way on China’s historic claim to the islands of the South China Sea.”

Secondly, in the last portion of Paragraph 272, the Arbitral Award expanded the legal options of China that in addition to historic rights the Tribunal did not preclude China from making claims under UNCLOS:

“Nor does the Tribunal’s decision that a claim of historic rights to living and non-living resources is not compatible with the Convention limit China’s ability to claim maritime zones in accordance with the Convention, on the basis of such islands.”

What this means is China can prove ownership of Scarborough Shoal and its territorial sea on the basis of historic titles and even independently, under UNCLOS.

Award not a victory

This is just the beginning on how the 2016 Arbitral Award is working against our best interests. Here are more salient points that I wished to bring to the attention of the Congressional Tricom hearing last June 5 in aid of legislation.

(2) Our position in Sandy Cay has been compromised by our attempt at misleading the Tribunal.

Paragraph  370: When questioned on this feature during the hearing, the Philippines argued that Sandy Cay no longer exists, insofar as it is not depicted in more recent U.S. charts that include the Thitu Reefs and does not appear in the satellite-derived bathymetry prepared by EOMAP.

The Tribunal rejected the Philippine submission and the credibility of the American charts and EOMAP:

Paragraph 371: As an initial matter, the Tribunal does not believe that any reliable conclusions can be drawn from the absence of a depiction of Sandy Cay in the 1984 edition of United States Defense Mapping Agency Chart No. 93044.

Paragraph 373: With respect to satellite imagery, the Tribunal remains unconvinced that reliable conclusions can be drawn from EOMAP’s satellite-derived bathymetry.

The Tribunal explained that in contrast to a rock or coral boulder, it is possible that a sand cay may be dispersed by storm action and reform in the same location after a short while. The absence of a sand cay at a particular point in time is thus not conclusive evidence of the absence of a high-tide feature.

In this instance, the Tribunal considers that the strong historical evidence of a sand cay on the reefs west of Thitu is to be preferred, even if the presence of Sandy Cay over time is intermittent.

Worse, the Tribunal rendered an observation favorable to China’s presence at Subi Reef which is a low-tide elevation that could be leveraged by Sandy Cay’s entitlement to 12 nautical miles of territorial sea

Paragraph 373 continued: “As Subi Reef lies within 12 nautical miles of the reef on which Sandy Cay is located, it could serve as a basepoint for the territorial sea of Sandy Cay.”

(3) The Kalayaan Island Group created as an archipelagic polygon projecting from Palawan was overturned by the Tribunal.

Paragraph 574: “In any event, however, even the Philippines could not declare archipelagic baselines surrounding the Spratly Islands. Article 47 of the Convention limits the use of archipelagic baselines to circumstances where “within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.”599 The ratio of water to land in the Spratly Islands would greatly exceed 9:1 under any conceivable system of baselines.”

(4) Fishing is not considered as innocent passage. However, the Tribunal drew an exception to the areas around Scarborough Shoal:

Paragraph 805: “Based on the record before it, the Tribunal is of the view that Scarborough Shoal has been a traditional fishing ground for fishermen of many nationalities, including the Philippines, China (including from Taiwan), and Viet Nam.”

807: “Based on the record before it, the Tribunal is of the view that at least some of the fishing carried out at Scarborough Shoal has been of a traditional, artisanal nature.”

Certain conditions to the parties involved, however,  apply to the exception granted:

809: The Tribunal notes, however, that traditional fishing rights are not absolute or impervious to regulation. Indeed, the careful regulation of traditional fishing may be necessary for conservation and to restrict environmentally harmful practices.

This distinction is favorable to China who has in possession of Scarborough Shoal.

809 continued: “Nor would it prevent the coastal State from assessing the scope of traditional fishing to determine, in good faith, the threshold of scale and technological development beyond which it would no longer accept that fishing by foreign nationals is traditional in nature.

(5) On matters of innocent passage and freedom of flight and navigation, of significant pertinence are two provisions of UNCLOS.

The first is Article 86 on High Seas:“all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.”

The matter I call attention to is that exclusive economic zones do not include surface waters and the aerospace above it, which are high seas or international waters.

Moreover UNCLOS rules in Article 89:

“No State may validly purport to subject any part of the high seas to its sovereignty.”

As such, subsequent question is – why are we patrolling this area and challenging other vessels making passage?

Under Article 19 patrolling, and especially for military purposes, is an exercise of sovereignty and not considered an act of innocent passage under UNCLOS because it is prejudicial to the peace, good order, or security of coastal states. 

(6) On the matter interrupting our routine resupply (RORE) missions to our soldiers at BRP Sierra Madre at Ayungin Shoal (aka Second Thomas) and complications adversely affecting our claim for a 200 nautical mile exclusive economic zone (EEZ) from our Palawan coastlines.

After President Joseph Estrada grounded a derelict Philippine Navy ship at the shoal in 1999, a protocol was reached with China as to the conduct of this RORE activities in order to prevent escalations of the conflict. That protocol proceeded from Estrada to Presidents Gloria Macapagal Arroyo, Benigno Aquino III and Rodrigo Duterte.

As soon as after President Ferdinand Marcos Jr. authorized the signing of four additions to the five pre-existing sites of the Enhanced Defense Cooperation Agreement (EDCA), last February 2023, escalations occurred as the Philippines abandoned the Estrada protocol.

Obviously, Marcos did not understand why such protocol is essential.

This was clarified by the Arbitral Tribunal itself when the Philippines in its Submission No, 14 protesting China’s strict law enforcement in the area.

Paragraph 1161: “In the Tribunal’s view, this represents a quintessentially military situation.

1162: “The Tribunal finds that it lacks jurisdiction to consider the Philippines’ protest against China’s military activities in Second Thomas or Ayungin shoal.

The second casualty here is that EEZs can apply where a military situation exists. Is it not obvious that any economic activity cannot co-exist with militarily-sensitivities? In fact, what most fishermen are protesting are the military exercises west and north of the Zambales and other nearby provincial activities on the west side of Luzon, being conducted by the Armed Forces of the Philippines with western countries involved with the United States’ military pivot to the Indo-Pacific.

There are more issues but we have space limitations.

These are examples of facts I wished to share with the Philippine legislature in aid of legislation, if they had only allowed me to present my case without the rude interruptions the Congressmen were notorious about.

If the Philippine government is really sincere about promoting peace and stability not only in the South China Seas, but the whole ASEAN region, these issues must be constructively addressed.

Any ambiguity, will be taken advantage of by the hegemonic ambitions of the United Staters and its western allies, to pivot its military adventurism into the Indo-Pacific.

To be continued.

   

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