(Part 1: Effusions of a foreign minister)
When Foreign Affairs Secretary Teodoro Locsin Jr. appeared on the morning talk show of ABS-CBN News Channel, also known as ANC, saying Manila would continue air patrols over the South China Sea despite Beijing’s calls to halt what it described as “illegal provocations”, I did not see anything wrong with that. The man was just voicing out an observation.
But things started going wrong when Teddy Boy, as always, out-talked himself.
He continued: “They can call it illegal provocations, you can’t change their minds. They already lost the arbitral award.”
Thus started the click-bait.
Alan Robles, the husband of Raissa Robles, both known yellow journalists who considers President Rodrigo Duterte as their pet peeve, picks up the pitch of the straggling Lopez-cable news company ANC, and echoes a convoluted angle in the South China Morning Times, a British newspaper.
The South China Morning Times newspaper and Alan Robles.
Robles fires away, the Secretary “was referring to the 2016 decision by an international tribunal that ruled against most of Beijing’s expansive claims to the South China Sea,” and feasted with Locsin’s awkward posturing – [But if] “something happens that is beyond incursion but is, in fact, an attack on say a Filipino naval vessel … [that] means then I call up Washington DC.”
First, the “international tribunal” Robles referred to is a private arbitral body. There is a whale of a difference between litigation conducted by an international tribunal or court and private arbitration.
Under Article 287, the United Nations Convention on the Laws of the Seas have two “litigation” bodies first the International Tribunal for the Laws of the Seas based in Hamburg, Germany and the International Court of Justice based in The Hague, Netherlands. It also provides for two other options for compulsory arbitration.
What Robles is referring to here is the Permanent Court of Arbitration cannot be a compulsory procedure. Upon signature to or ratification of UNCLOS, as allowed by its Article 298, China and the Philippines, on different instances and reasons, had opted out of any compulsory adjudication of disputes and expressed its preference for bilateral negotiations.
The double speak here has arisen because PCA calls itself a court.
But look – in litigation the loser may be asked to cover the costs of the suit. In arbitration, the parties involved share the costs.
The Philippines claim it won the PCA ruling, but who paid the costs?
Aquino and Del Rosario spend $7 million for American lawyers, and about Php700 million more for renting the PCA facilities and services, paying for juror’s honoraria and expenses, and for the air travel, hotel accommodations and per diems of Filipino officials who went to The Hague to stage this show.
Why? Because China did not participate in this PCA process.
So look again, how could have there been any due arbitration with only one party participating? Under the UN Charter, arbitrations are to be conducted voluntarily, thus China cannot be compelled to participate.
As Ambassador Rosario Manalo has said, there was something wrong in the constitution of this PCA case.
Their talking head Antonio Carpio, former associate justice of the Philippine Supreme Court, of course, conveniently searched for loopholes in the UNCLOS provisions and twisted it to suit their crafty intentions, as if he were messing with municipal laws and not customary international laws.
This cunning maneuver brought the integrity of the arbitral process by the PCA under serious question. Carpio argued that Annex VII Arbitration Article 9 Default of appearance applied:
If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award.
Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.
Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.
Fine. But again the subject of the case is a matter of “sovereignty”, which is not within the jurisdiction of the specific United Nation Convention of the Laws of the Seas, but the larger customary international law.
While indeed the PCA jurors cunningly prequalified its jurisdiction before making an award, the subject of its exclusion – China’s “nine-dash line” is an issue of sovereignty.
Did not the PCA “invalidate” China’s nine-dash line? Well it exceeded its jurisdiction. Therefore, its invalidation of that which is not within its jurisdiction is by itself invalid as it is ab initio null and void.
Locsin’s predicate also did him in. In his usual braggadocio, he reveals himself a fifth column of the Americans, to quote again [that] “means then I call up Washington DC.”
Locsin entered Robles’ clickbait, the former just lurking at every opportunity to justify his salary from his British-run press, and a hotmeal whenever he goes home to his wife Raissa.
The chief architect of Philippine foreign policy is not the Secretary of Foreign Affairs. It is the president of the Philippines.
Teodoro Locsin Jr. is way out line here.
This is also the problem when someone who is not schooled in Diplomacy 101 is appointed to head a body of diplomats.
The last direction that President Duterte gave his government was to withdraw any participation in any war exercises going on in the South China Seas. That reeks of disengagement and neutrality, evidencing his independent foreign policy.
If China attacks our navy, I’ll call the US, Locsin says.
What is the possibility China would attack our navy or the Philippines for that matter? Zilch, zero, nada, nil, bokya.
Should diplomats answer a hypothetical question? Like Carpio before him, Locsin looks like an incontinent senior here rushing to the john.
It appears that both of them are more interested in fomenting discord rather than attempting at conflict resolution.
What most recent point of reference drags the Philippine Navy into the discussion anyway?
At the height of Noynoy Aquino and Albert del Rosario’s idiocy during the Scarborough standoff which began on April 8, 2012, it was a Philippine Navy vessel, a gray ship, that showed aggression by incompetently confronting civilian fishing boats carrying Chinese flags, to the extent of boarding them and arresting their crew and confiscating their cargo.
Gray ships don’t do jobs like this because that is tantamount to a declaration of war against the flag that the other ship carries. That is a job reserved for civilian law enforcement notably the Coast Guard, or white ships.
Did the Chinese white ships attack our gray ship? No.
On the contrary, in a separate 2013 incident, eight Filipino coast guards who opened fire on a Taiwanese fisherman in the Balintang Channel, between northern Philippines and southern Taiwan, have been convicted. Note that the Peoples’ Republic of China considers Taiwan its province.
But that was when BS Aquino was president and our foreign policy towards the Chinese was hostile and stupid starting with the August 2010 killing of eight Hong Kong tourists during a bus hostage incident in Manila. The invertebrate toy president did not even fix that faux pas and it took President Rodrigo Duterte to make a public apology much later.
So what makes Locsin even think there will be any hostility between Digong and China President Xi, much more an attack on a Philippine navy ship? They have not even done anything about the BRP Sierra Madre, an old navy ship President Estrada ordered to be run aground at Ayungin Shoal?
Following the sense of Duterte ordering our navy to stay out of foreign naval exercises in the South China Seas, Locsin must disengage his mouth from the South China Seas, especially now as he appears like a crazy asinine chasing its tail.
The goodwill between the Philippines and China that dates way back more than 1,000 years must not be endangered just because of a showing off charlatan who wishes to please his American friends.
What are the most likely probability? The US military might not come to the Philippines’ aid if Chinese forces attack Filipino ships and claimed territory in the disputed Spratly Islands and Scarborough Shoal, international affairs experts have warned.
And even if did? What further damage would China have already accomplished involving other parts of the Philippines? If China can finish Taiwan in less than a day, it can destroy the Philippines given an hour more.
This is what President Ferdinand Marcos warned about the Mutual Defense Treaty speaking before the National Press Club during his state visit to Washington DC in 1982, saying something like the Americans will be busy deliberating at Capitol Hill on how to respond to an enemy attack on the Philippines, “while we are already dying over there.”
Besides, while the 1951 Mutual Defense Treaty (MDT) requires Manila and Washington to support each other if either of the 2 countries are attacked by a third party, the United States has yet to make a full commitment with regard to the Spratlys and Scarborough Shoal, according to the Brussels-based International Crisis Group (ICG).
“The treaty text leaves the extent of US commitments open to interpretation,” the ICG said in its latest report on the territorial disputes in the West Philippine Sea.
“While the text calls for the US to respond to an armed attack against the Philippines, Manila only received ‘vague assurances’ that Washington would uphold the treaty during the Scarborough standoff,” the ICG added.
“Furthermore, the US has not confirmed whether the scope of the treaty covers contested territories in the South China Sea,” said the ICG, which advises governments and world bodies like the United Nations, European Union and World Bank on the prevention and resolution of armed conflicts.
It added that MDT predates the Philippines’ territorial claims in the West Philippine Sea, resulting in uncertainties how the US will interpret its application to disputed territories in the event of a conflict.
US Secretary of State Hillary Clinton earlier said Washington is neutral in the Philippines-China dispute and is instead focused on ensuring free navigation, unimpeded commerce and stability in the West Philippine Sea.
The ICG also mentioned an analysis of Asian affairs specialist Thomas Lum, who said in an April 2012 report for the US Congressional Research Service that the US does not consider the MDT and subsequent renewals to extend to features in the West Philippine Sea.
“Some Philippine officials have suggested or sought assurances that the treaty obliges the United States to come to the defense of the Philippines if China were to take disputed territories in the South China Sea by force, while some US interpretations limit US intervention to a foreign military attack on the main Philippine islands or upon Philippine military forces,” Lum said.
However, he added, that “the Obama administration has not further specified the circumstances under which the US armed forces would intervene on behalf of the Philippines.”
“The Manila Declaration of November 16, 2011, did not lay out specifically the circumstances in which the United States would defend Philippine claims in the South China Sea,” he said.
This is precisely why Defense Secretary Delfin Lorenzana wants a renegotiation of the Mutual Defense Treaty. It might as well extend to all security treaties we still have with the US.
Anyways, when Hillary Clinton was finally cornered if the US will respond to any attack on the Philippines, she said “We do not comment on hypothetical questions!”