By Adolfo Quizon Paglinawan

 

Series 12: Forever peace or forever wars?

President Ferdinand Romualdez Marcos Jr. called for a “reset” in Philippine-China relations following a recent violent confrontation at Ayungin Shoal that injured two Filipino sailors, suggesting another midstream shift in a foreign policy that looks more of a maze since he started his administration.

During his state visit to China in January 2023, the Philippines received a pledge of $23 billion from Xi Jinping in addition to about $17 billion in Chinese donated or joint-or official development or loan-assisted projects in the pipeline. A nation celebrated as what appeared as a continuation of the economic programs of President Rodrigo Duterte, fulfilling election promises under a “UniTeam” with the daughter of his predecessor as vice president.

After just a month, he signed a pact with the United States increasing from five to nine the sites of the Enhanced Defense Cooperation Agreement, therefrom shifting from an independent foreign policy to  the American rules-based order, starting an embargo on almost anything Chinese except on trade.

What has been embarrassing following his call for a “reset” is that comparison of videos coming from China and the Philippines proved that the Filipino marines provoked the violence at Ayungin or Second Thomas Shoal. Mere observation showed that the Chinese Coast Guard merely sent personnel aboard two rubber boats, to verify if repairs, in violation of a standing provisional agreement between the two countries, were being made on board BRP Sierra Madre,

The president did not stop at his knee jerk reaction. He made the situation worse.

During his subsequent State of the Nation Address, he waxed jingoistic defending the country’s maritime frontliners and echoed a defiant message on national sovereignty, declaring that the Philippines will not cower or surrender to external pressures.

This explains why Marcos Jr has breached the cellars in his trust and approval ratings.

In the recent Pulse Asia survey, the matter of “defending the integrity of Philippine territory against foreigners” only got 3%.

This is after ten years of hawks in Philippine government and politics selling to the Filipino public a so-called “arbitral victory.”

Car-pyrotechnics

The Department of Foreign Affairs (DFA) has confirmed that since July 2024, there has been a “Provisional Understanding” with China on the conduct of rotation and resupply operations involving the BRP Sierra Madre, which is grounded in Ayungin Shoal.

But in a yet becoming more serious outburst of senior tantrums, expired justice Antonio Carpio, who professes himself the unofficial “Rasputin” of former President BS Aquino and now Marcos Jr,  wants the alleged “provisional agreement” between the Philippines and China on Ayungin Shoal revoked, warning the administration that failing so, he might bring it up to the Supreme Court or Congress.

DFA maritime affairs spokesperson Rogelio Villanueva Jr. emphasized that the military does not need to ask China for permission for rotation and resupply operations and invited Carpio to give the Armed Forces of the Philippines a better, safe plan to supply troops without stoking tensions with Beijing in the contested waters, instead of only criticizing.

In an interview with his echo-mechanic Christian Esguerra, however, Carpio insulted the agreement as “dumber than dumb” and called it “an oxymoron.

Let us sort out Carpio’s brain fog:

Claim #1: “The Arbitral Award has already declared that Ayungin Shoal is located within the Philippines’ EEZ.” As always, Carpio loves to pull a rabbit from his top hat. In international law, however, there is a whale of difference between entitlement and delimitation, just as in general law there a distinction between having a right and being able to exercise that right.

• Maritime Entitlement

Stemming from the principle that “land dominates the sea,” entitlements are generated automatically by a state’s land territory. A country establishes its zones (such as territorial seas or exclusive economic zones) independently by measuring distance from its coast. Conceding to Carpio’s assertions, I agree that these rights are automatic and can be unilaterally claimed because under UNCLOS, they exist ipso facto (by the fact itself) without requiring formal proclamations, occupation, or special permissions.

• Maritime Delimitation

Delimitation only becomes necessary when two or more countries have maritime entitlements that overlap in the same body of water. It is the active process of negotiating or adjudicating a single, equitable boundary line to separate the overlapping areas. Unlike unilateral entitlement, setting a boundary requires mutual bilateral agreement between states or a binding decision from an international tribunal or court.

Sadly for the Philippines, the 2013 Arbitration was not a compulsory process under UNCLOS but a voluntary arbitration under the UN Charter where China did not participate, citing an opt-out option under Article 298 of UNCLOS.

The Award  affirmed the location of Ayungin Shoal, but did not award any maritime delimitation in favor of the Philippines.

The Tribunal could not delimit with a dispute existing, without violating Article 59 of UNCLOS:

• Basis for the resolution of conflicts regarding the attribution of rights and jurisdiction in the exclusive economic zone

In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.

The same rule is reiterated in Article 74 and other portions of the Convention.

Claim#2: “Carpio warned he might seek help from the SC to have the agreement invalidated because “it violates the Constitution. It violates the Arbitral Award.” Frankly I do not see how providing peaceful routine humanitarian assistance to and rotating our stationed troops violates the Constitution. I also deny it violated the Award because the Tribunal did not take this issue at all. It was estopped from even discussing it.

The reason given is found in its Paragraphs 1161and 1162:

“In the Tribunal’s view, this represents a quintessentially military situation”. The Tribunal (therefore) finds that it lacks jurisdiction to consider the Philippines’ Submissions No.14 a-c (re China’s military activities in Second Thomas or Ayungin shoal).

Carpio was deliberately obscuring facts from the public view.

My verdict on Claims 1 and 2:  While the Ayungin vicinity may be within 200 nautical miles from our Palawan baselines, no EEZ can be enforced there not only because it is disputed, but moreso because it is militarized.

Claim#3: “We already have a final decision, the Arbitral Award, but we opened it again. It’s like we slammed ourselves into a big wall.” FACT: The former magistrate presumes finality. Carpio also hides a fallacy here – no human law is cast in stone or iron or permanent. All man-made laws can be changed, amended, or repealed over time. I have a better idiom- it’s like a fly smashing into your windshield.

Claim#4: “Why would you have a provisional agreement which tantamount to “giving up our sovereign right” over Ayungin Shoal.” This time it is Carpio who twists logic and uses an oxymoron, because the reverse is true. Entering into an agreement is precisely an exercise of our sovereign right. How can you enter into an agreement without both parties first being entitled to it and second joining freely their consent?

Claim#5: “The Department of Foreign Affairs has no authority to enter into such a provisional agreement.” Of course, it has because obviously the President approved it.

Claim#6: “The provisional agreement might fulfill the doctrine of acquiescence in international law that ‘admits superiority’ over Ayungin Shoal in favor of China.” Wrong application of international law. Wrong attitude regarding diplomacy. Carpio assumes that the Philippine government entered into an onerous agreement that runs counter to its interest. Engaging China is not capitulation. Negotiation is not abandonment. The result has proved to be an equitable solution.

Under this practical conflict-prevention mechanism to deliver daily necessities and rotate Navy personnel, DFA has recorded a total of 15 incident-free rotation and resupply (RoRe) missions to the BRP Sierra Madre. The July 20 incident was an exception and was in fact caused by a Philippine violation of the agreement.

Facts governing Ayungin

The measures proposed by Carpio are impractical such as using airdrops, drones, and fast boats to deliver goods to the outpost.

These have already been tried after August 2023, when the question of pulling out the BRP Sierra Madre from the shoal, was used by the Office of the National Security Adviser Eduardo Ano, to smear former President Duterte, as having a “secret deal” with the Chinese. Former Ambassador Rigoberto Tiglao clarified this with an exhaustive column on the subject matter.

Read: https://rigobertotiglao.com/2023/08/14/ph-did-promise-to-remove-brp-sierra-madre-from-ayungin/

As a result of the controversy, the Presidential Communications Office revealed a video of Marcos Jr saying, ”I’m not aware of any such arrangement or agreement that the Philippines will remove from its own territory its own ship, in this case, the BRP Sierra Madre from the Ayungin Shoal. And let me go further, if there does exist such an agreement, I rescind that agreement as of now.”

Unfortunately, the concomitant protocol affecting routine resupply mission for the humanitarian needs of our commissioned personnel aboard the derelict Navy ship, was also subsumed by the presidential rescission.

Without any alternatives, the situation went from bad to worst, with the Philippine side insisting on using gray (military) ships to attempt at routine resupply missions. On June 17, 2024, Philippine Navy Seaman First Class Jeffrey Facundo lost his right thumb during a violent confrontation with the Chinese Coast Guard.

The following month the Bilateral Consultative Mechanism at the foreign ministry levels met, and forged a “provisional understanding” under Marcos.

Carpio now wants this disclosed to the public. But he is overruled by Annex C of the standard Philippine Freedom of Information (FOI) Manual under Executive Order No. 2 (s. 2016) which contains the official List of Exceptions where the government can deny public access to certain records.

Besides prohibited by UNCLOS, the Philippines cannot practically undertake a unilateral enforcement on the waters.

The shoal is 105 nautical miles (194 kilometers) west of the Palawan coastline. Given the distance, I hope Carpio can devise a resupply plan that will not be detected by any foreign traffic before any mission can reach it. Besides, wouldn’t that be putting the mission in clear and present danger?

Where I agree with him, however, is when the retired magistrate admitted that “this provisional agreement is weakening our Arbitral Award.”

Arbitral myth

If Carpio and his ilk claim the Arbitral Award is a victory, why is it creating more problems than solutions?

Maybe the only context I can defer to it being a legal victory, was because when it declared that the nine-dash line has no legal basis under UNCLOS. This was reflected in Paragraph 278 of the award.

But that also means no other coastal state can just make drawings in the South China Sea. So why are we peddling to the world our own phantom “West Philippine Sea” drawn from mere sovereign rights entitlements (not sovereignty), in disputed waters at that and with EEZ jurisdictions excluding the surface waters and the aerospace above it?

Let us be consistent with history. Who drew the nine, in fact, eleven-dash line?

Imperial Japan had occupied Taiwan in 1895 and consolidated administration over the South China Sea (and the Batanes Islands) in 1941 and throughout the Second World War. Following the surrender of Japan in 1945, General Douglas Mac Arthur commissioned Generalissimo Chiang Kai-shek to receive the physical turnover and reclaim the features for the Republic of China, leading directly to the publication of the cartographic lines asserting ownership first published in 1947.

Even if the Peoples Republic of China has been the successor-in-interest to all these territories, including Taiwan, under United Nations General Assembly Resolution 2758, adopted on October 25, 1971, it has never based its official claims on the nine-dash line but on historic titles and rights.

The Arbitral Award did not rule on this matter.

Its Paragraph 272 says

“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 emphasises 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.”

But claiming a victory that the Arbitral Award affirmed our 200 nautical miles entitlements to sovereign rights to an exclusive economic zone is hardly a victory. It is already written in the letter of the Convention – Part V, Articles 55 to 75, and can easily be understood by any senior high school.

The underlying reasons why the most Filipinos do not regard the Award as serious and meaningful recalls the commonsensical analysis of Senior Ambassador Rosario Manalo when it was announced in July 2016:

Her main point was the process was not properly set up. It was disguised as a compulsory procedure  under UNCLOS when it was in fact a voluntary arbitration under the UN Charter. Subsequently. It continued without the consent and participation of the respondent party. Lawyering for the Philippines were foreigners, in fact Americans. The magistrates were handpicked by the petitioners.

Actually, she made it sound like a “kangaroo court”.

But really, I am convinced that the Philippine side suffered from optics of not being in good faith. The international reputation of Secretary Albert del Rosario, as a business mogul,  is well-established. He is not only a stakeholder in the issue at hand, but a stockholder of the First Pacific, the Hongkong-based multinational holdings corporation that owns Forum Energy, the oil and gas exploration arm of Philex Mining and PXP Energy.

On March 2, 2011, two Chinese patrol boats aggressively approached and forced the seismic survey ship MV Veritas Voyager, which was commissioned by Forum Energy, to stop its work and withdraw from Reed Bank (also known as Recto Bank).

This colored the purpose of seeking third party arbitration as not being genuine. The dominance of foreign actors diluted the Philippines quest for legal remedies and suggested a frame up by big powers who wanted to engage China in lawfare.

That sounded plausible especially because Barack Obama had announced a “pivot to Asia” by the United States who needed a proxy in East Asia because they are neither a coastal state or a member of UNCLOS. Secretary of State Hillary Clinton also made numerous trips to the Asia-Pacific, engaging media in talking points about the Philippines Mutual Defense Treaty with the US despite refusing to comment on hypothetical questions.

A year after the Arbitration was setup in 2013 , President BS Aquino  signed an Enhanced Defense Cooperation Agreement in 2014 that posted five US bases in the Philippines, thus reestablishing in an oblique way American presence in the archipelago.

As earlier said, in 2023 four additional sites were added to EDCA. The American expansion was only rudely interrupted by six years of the Duterte administration that did not rely on US alone for the modernization of the Armed Forces of the Philippines, but diversified sources from South Korea, India, Poland, Israel, Turkey, United Kingdom, Italy, Japan, China and Russia among others.

What was the noisy stage that served as the backdrop for this expansion?

Ten years of lawfare on the South China Sea issues, most active under Presidents BS Aquino and Marcos Jr.

But at what cost?

Conclusion

For more than three years, Marcos Jr’s cops-and-robbers policy in the South China Sea has not only brought us closer to a hot war with China, but has condemned our economy to a projected gross national product at the end of the current year to 3%.

As I said in my previous column, this is outstanding evidence that proves that edifying the 2016 Arbitral Award is n’est pas efficace (not achieving any good result) for the people.

Returning to the July Pulse Asia survey, the top two double-digit concerns are controlling inflation (prices of everyday commodities in the marketplace) @57%; Lowering the price of gasoline  @13%.

Holding corrupt government officials to accountability @43%

Increasing the pay of workers @36% and creating more jobs @15%

Reducing the poverty among Filipinos @ 26%; Addressing involuntary hunger @11%.

Fighting criminality @22%, Stopping the widespread sale and use of prohibited rugs @ 19%,

Equal protection under the law @ 11%; Promoting peace @11%.

At the risk of redundancy, the survey revealed that Filipinos are least concerned @3% about “defending the integrity of Philippine territory against foreigners”.

They worry about food on the table first, corruption in government second, better livelihood third  and law and order fourth.

They know that the Arbitral Award is only a scrap of paper, which they cannot eat!

   

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