(Part 4: China message is precise and deliberate)
A US Air Force RC-135S plane disguised itself as a Philippine aircraft as it flew over the Yellow Sea, according to the Beijing-based South China Sea Strategic Situation Probing Initiative (SCSPI).
The reconnaissance aircraft used a hex code allocated to a Philippine aircraft, but reverted back to its original number after completing its mission, the SCSPI said. Hex codes are assigned by the International Civil Aviation Organization to all aircraft as a means of identifying them.
Last week the SCSPI said American RC-135s electronically disguised themselves as Malaysian civilian aircraft while flying close to Chinese airspace. The switch was also reported by Popular Mechanics magazine and several independent observers.
Analysts said the incident suggested America was stepping up its surveillance of China and its tactics could stoke tensions between the two sides.
This exhibit of dangerous duplicity on the part of the US military is yet another fishing expedition for a kneejerk reaction from China’s Peoples’ Liberation Army.
It is unnecessary as it is irresponsible that it evoked unpleasant reactions from both Defense Secretary Delfin Lorenzana and National Secueurty Adviser Hermogenes Esperon Jr. Foreign Affairs Secretary Teodoro Locsin Jr. still has to issue a diplomatic protest.
Donald Trump and Michael Pompeo are both grasping at straws to provoke a violent engagement hoping to save the dwindling numbers of the Republican president for reelection. A war with China could be his last card as that might even postpone the November elections.
China’s foreign ministry said earlier the US military had used the same trick more than 100 times this year.
In my honest opinion, this latest one could have been emboldened by President Rodrigo Duterte’s address before the United Nations, almost two weeks ago, where he said “The Philippines affirms that commitment in the South China Sea in accordance with UNCLOS (United Nations Convention on the Law of the Sea) and the 2016 Arbitral Award.”.
I wish to caution politicians and PR practitioners that Duterte has appointed to juicy positions in his Cabinet and foreign missions abroad, that while a face such as Helen’s can launch a thousand ships of war, words can provoke jingoism.
Ambivalence causes jingoism
Jingoism is an attitude of belligerent nationalism, or a blind adherence to the rightness or virtue of one’s own nation, society, or group, simply because it is one’s own.
The President’s UN speech was really to call for reforms in the United Nations to make it a more effective peacekeeping body. The timing is right because never after World War II has the planet met a challenge worse than the Covid pandemic.
But the insertion of the line that the award of the Permanent Court of Arbitration “is now part of international law, beyond compromise and beyond the reach of passing governments to dilute, diminish or abandon,” stole the thunder out of a speech that could have him nominated for a Nobel Peace Prize.
The resounding disturbance is actually a double-speak.
As my mentor the late former Philippine vice president and ambassador to the United States, Emmanuel Pelaez, one of the lynchpins of best practices in foreign affairs, would say – the proverbial “yes…but” argument. Agreeing but not totally.
The PCA award indeed has been part of international law because it is on record as it actually happened.
Did Duterte say anything to add or lessen the Philippine position? Nothing. The President has done absolutely nothing different from Day 1 because he never disagreed with it in the first place.
The President’s caveat has been very clear and concise to the public – that we cannot do anything to enforce it except through bilateral negotiations.
We cannot go to war. And we will not participate in anything that leads to war.
In fact, to be consistent with that, he has bolted out of any participation of the Philippines in any military exercises in the South China Seas.
So it goes a complete circle. It is on record and it stays there, in ordinary French – in a state of estoppel.
In plain American english – we cannot move on it without China cooperating.
What most people do not know is that unlike domestic law where rulings are enforced by third parties usually a judicial body, results of private arbitrations apply only between or among the countries participating.
Because of this, what Albert del Rosario, his chief talking head Antonio Carpio, and their sounding boards Jay Batongbacal and Richard Heydarian always disregard is that no other party can reference it for their own benefit or dis-benefit.
As earlier said, the application of jurisprudence is different from private arbitration or mediations between parties under municipal law. Any agreements arrived are referred back to the court for enforcement. Such becomes ipso facto the decision of the court with prejudice, meaning the case is over and done with, once and for all, and can’t be brought back to court.
I know this for a fact because I have been asked by courts in the United States on many occasions to act as arbiter or mediator on variant issues affecting private parties in civil suits, after establishing some track record in conflict resolution.
One of this celebrated cases was for the United States District Court for the Central District of California located in Pasadena where I creatively wove an amicable settlement between Couples for Christ Global USA and Couples for Christ Foundation for Family and Life, for a win-win solution ending a vicious feud between the two Filipino-American Christian communities in the United States.
No amount of ecclesiastical or judicial intervention anywhere else in the world including the Philippines, brought real peace between the two factions. To this day, both CFCs in the US have learned to live by the terms and conditions of that Pasadena agreement.
This is why when it comes to arbitrations, I claim more wisdom that Del Rosario, Carpio, Batongbacal and Heydarian, combined, first because without actual experience, talk is cheap. Second this is why they have engaged in lawfare and propaganda to promote fake news about the infallibility of the arbitral victory they bought from the PCA.
Question of Enforcement
In international law, private arbitration awards are not enforced with prejudice.
Judicial review of international arbitral awards is available. Check parameters with the Marquette Law Review https://core.ac.uk/download/pdf/148688415.pdf
Next, whatever awards that need enforcement are to be enforced only by the parties participating.
The question is who participated in the PCA arbitration claimed as a victory by the likes Del Rosario, Carpio, Batongbacal and Heydarian? Only the Philippines.
China opted out.
So this matter of record in international law is only applicable to the Philippines. The Philippines is also the only party that can enforce it.
My approach is different, but the President in fact agrees with me. He admits that there is an award on record, but he also says it cannot be enforced except through war. The reason is obvious – it is a unilateral position. No “arbitration” actually happened. The only way to enforce unilateralism is war.
So the destination of our different points of departure is the same.
Ambassador Rosario Manalo confirms the only thing our going to the PCA achieved was to put on notice to the world, putting on record – our official position.
The ruling is just what it is, a phyrrhic victory, a perfunctory moment, a record that is static because it is devoid of any possibility of enforcement outside of war.
It is whimsical to use it as Antonio Carpio does, as good for any jurisprudence. It is inutile as it is impotent.
Even when the Permanent Court of Arbitration decided the nine-dash line was “not acceptable”, it was ruling that the nine-dash line is illegal only when it comes to the Philippines. Again this ruling cannot apply to any other party but singularly to the Philippines. Even with our Mutual Defense Treaty, the United States cannot go into the scene and say, we are going in to help the Philippines enforce the arbitral award that said the nine-dash line is illegal.
This is precisely the point that in invoking “active defense” China pre-positioned itself to stonewall and believe me it indeed enforced the nine-dash line by occupying and reclaiming some of the islands in the South China Seas.
No room for misinterpretation
In a manner of speaking, I am happy China changed the facts on the ground even before this PCA award came about. My reason is simple, there can be no more equivocation on what is real or unreal, what is still possible or not possible to do about it.
Uncertainties create war. On the other hand impossibilities open room for bilateral negotiations because the lines are clearly drawn.
We went to pursue the legalese that exacerbates to endless legalism and deeper conflicts; China’s changing the facts on the ground categorically fixed the rules of engagement in favor of peace and stability not just in the SCS but in the entire East Asia.
What was a mere nine-dash line concept before is now a matter of sovereign territory, with no other way of expulsion except war.
Neither was China’s action superfluous because its occupation of islands was never a matter discussed or decided upon by the PCA.
Besides, how can we drive the Chinese out of the islands that they have occupied, without us being driven off the islands that we occupied? The Philippines is the first that formally occupied islands in the South China Seas calling it the Kalayaan Island Group. The same goes with Vietnam and the other claimants.
In the same vein, what President Duterte wants done without even asking is put warmongering US in place telling it not to destabilize the area by sticking its dirty hands into the South China Seas issues. My goodness, the US is not even a member of UNCLOS!
Insofar as China is concerned, nothing changes in our relations. The graphic signal is we are best of friends and we do not participate in Western tactics demonizing our friends.
Duterte’ affirmation of the PCA ruling at the UN General Assembly is not a ‘change of heart’. About two years ago, he did commit that he will invoke the arbitral ruling at the right time, and this is it. This diplomatically puts us on even keel with the US who has been trying to outfox us to be its cover, even proxy, in the South China Seas.
US defense propaganda line is unabashed in asserting that the US navy ships are returning to Subic. Defense Secretary Lorenzana has clarified that – they are going there to be repaired, not to base equipment and boots on the ground. A joint Australian and American firm is taking over the Hanjin ship building facilities in the former US base. It is pure business devoid of politics.
President Duterte’s latest policy statement balances our American boy image putting us in complete congruence to Asean sentiments to remain a zone of peace and neutrality.
This even increases our moral ascendancy over Malaysia as we pursue the recovery of Sabah because while we remain an ally of the United States and we are a close friend of China. Malaysia is known to be silently hostile to the Chinese.
This also puts American and Chinese support behind us in battling destabilization by ignorant European parliaments.
Our president has positioned the Philippines in the best geopolitical advantage to broker for the United Nation peace and stability in the region. This has made a small country, the Philippines, in its own right, a world leader. All this notwithstanding, the naughty Americans will squeeze blood out of the turnip of opportunity, when given the smallest loophole to pry open. This is the signal it gives disguising its reconnaissance flyover.