By Ado Paglinawan
Standing by Philippines in the face of escalation? Armed attack on our ships to trigger defense pact?
Sounds good on print but holds no water on the ground.
Mixing the ruling of the Permanent Court of Arbitration, the Philippine territorial claim in the Kalayaan Group of Islands, UNCLOS and the Mutual Defense Treaty is like the Filipino’s favorite dessert.
Teaspoons of fresh fruits, beans, preserves and whatever as recipe, dumped into a glass with shaven ice on top, and a slap of an ice-cream scoop, voila – a mixed bowl of expectations!
America’s pet peeve, the South China Seas, made headlines again this week after Chinese Coast Guard vessels “blocked and water cannoned” Philippine supply boats in the Second Thomas shoal (Ayungin)portion of the Spratly Islands.
US State Department Spokesperson Ned Price said Washington “strongly believes” that China’s action in “asserting its expansive and unlawful” claims in the South China Sea “undermine peace and security in the region.”
That was the ice cream. (It melts under room temperature.)
Price added “The United States stands with our ally, the Philippines, in the face of this escalation that directly threatens regional peace and stability, escalates regional tensions, infringes upon freedom of navigation in the South China Sea as guaranteed under international law, and undermines the rules-based international order”.
That was the recipe. (It spoils when not refrigerated.)
“The United States … reaffirms that an armed attack on Philippine public vessels in the South China Sea would invoke US mutual defense commitments under Article IV of the 1951 U.S. Philippines Mutual Defense Treaty,” he added.
That was the shaved ice. (It is as good as water passing under a proverbial bridge.)
The idiot, obviously, has not read the whole treaty nor studied its implications.
Examining the treaty
While Article V of the treaty reads: “… an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific.
The “territory and jurisdiction” mentioned here apply only to Philippine territory and 12 nautical miles from its shores, provided for in the Treaty of Paris of 1898.
Between spox Ned Price and Secretary of State Hillary Clinton on the issue, I give more weight to the latter who in July 2012 said “I do not respond to hypothetical questions!”
Secretary Clinton emphasized that Washington is neutral in the Philippines-China dispute and is instead focused on ensuring free navigation, unimpeded commerce and stability in the South China Seas.
His statement was based on a deep analysis of Asian affairs specialist Thomas Lum of the think tank International Crisis Group, in an April 2012 report for the Congressional Research Service (CRS) that the US does not consider the MDT and subsequent renewals to extend to features in the West Philippine Sea.
Unlike in the Philippines where bureaucrats and politicians make hay “interpreting” facts, CRS is the depository of the collective wisdom of American legislature. If the CRS says it, or accepts a study, that is what is closest to the truth, and the promontory where policy flows.
One former Philippine president calls it CSW – as in “complete staff work”.
Lum acknowledged divergent opinions in that study, “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.”
However, he clarified, that “the Obama administration has not further specified the circumstances under which the US armed forces would intervene on behalf of the Philippines.”
And neither have the Trump and Biden presidencies! This is what our Defense Secretary Delfin Lorenzana has been lobbying for – a circumspective review and reform of the treaty.
Why? Because to make the US move on any “attacks” on the Philippines, guess what would be the existing protocol?
Again, the complete Article IV of the treaty says: “Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.”
This is what Price omitted.
Second, when Article V is invoked, no less than President Ferdinand Marcos in his Q&A among journalists in the National Press Club on September 15, 1982, elucidated – “When the Philippines is attacked, the United States is not necessarily bound to immediately react because the provisions of the Mutual Defense Pact is you (the US) will immediately take steps as is necessary to meet the contingency in accordance with your Constitutional processes.”
“What does that mean,” Marcos asked, “that means you will go to (your) Senate and the House of Representatives. “What does that mean, he rejoined, “that means delay, while we are already dying there.”
Price is a lot of hot air. In American slang, a “big fart!”.
The State Department spox continued confusing his audience, reminding China of the “2016 arbitral award” issued by the Permanent Court of Arbitration in The Hague, which “firmly” rejected Beijing’s expansive claims in the South China sea.
Thus adding another condiment to the “halo-halo”.
China did not participate in the Permanent Court of Arbitration. The Philippines proceeded alone in the process, so how can you even call that an arbitration. Of one party? That was unilateral on our part paying for the facilities, time spent and services at the Peace Palace, and most significantly, the honoraria of the jurors whom the Philippine panel chose to adjudicate the case that we raised.
So how do expect a decision other than what we were one-sidedly fishing for?
The biggest farce was we paid $7million for American lawyers to interpret UNCLOS from our vantage point and to “seal” the “illegality” of the nine-dash line of the Chinese who were not present.
There are no defaults in an arbitration because all enforceables are supposed to be agreements between parties participating. Again, the PCA only had the Philippines as sole participant.
So what victory are we celebrating, unless that which is phyrrhic?
PCA working against our claims
President Marcos issued two decrees in June 11, 1978 – the first proclaimed a polygonal boundary limit for the Kalayaan Islands. The group consisted of Pagasa, Likas, parola, Lawak, Kota, Patag. Melchora Aquino, Panata, Rizal, Balagtas and Ayungin.
The PCA ruling adjudged that the Kalayaan Island Group was a group of “rocks”.
Rocks under the United Nations Convention on the Laws of the Seas (UNCLOS) cannot be the subject of any territorial claim because they cannot sustain life 24/7. If they cannot qualify as territory, how can they generate exclusive economic zones?
So the PCA ruling in fact, weakened, if not even minimized our claims.
The ruling also did not return Scarborough Shoal to us, claiming it to be the common ground for many nations since time immemorial.
Price continued his disinformation:
“On July 12, 2016, an Arbitral Tribunal constituted under the 1982 Law of the Sea Convention delivered a unanimous and enduring decision firmly rejecting the PRC’s claims to Second Thomas Shoal and to waters determined to be part of the Philippines’ exclusive economic zone.”
This is fake news. The PCA did not grant any party, any EEZ. Moreso, any territorial delimitations.
It cannot do so. The Permanent Court of Arbitration is a private body that was not constituted under the UNCLOS because the United Nations has already declared a disclaimer that it has nothing to do with it.
On July 12, 2016, when asked about the PCA ruling, Stephane Dujarric, spokesman for UN Secretary-General Ban Ki-moon said “The UN doesn’t have a position on the legal and procedural merits” of the South China Sea arbitration case.”
In a post on its Sina Weibo micro blog, the UN said the PCA is a “tenant” of the Peace Palace in The Hague, “but has nothing to do with the UN”.
The UN said that it is not to be mistaken for the International Court of Justice, its principal judicial organ set up according to the Charter of the UN, just because it is also located in the Peace Palace.
It seems the United States has now started to believe its own lies as it engages in lawfare using disinformation.
So what scenario is Ned Price playing with our Foreign Affairs Secretary Teodoro Locsin Jr.?
He is maliciously pinning down China to the defensive, as a trouble maker, to create a noise level that the peanut gallery in the opposition can pick up.
“The PRC (People’s Republic of China) and the Philippines, pursuant to their treaty obligations under the Law of the Sea Convention, are legally bound to comply with this decision. The PRC should not interfere with lawful Philippine activities in the Philippines’ exclusive economic zone,” Price added.
The Americans are conveniently in denial that at least five countries and one China province have conflicting claims in the South China Seas and they are having difficulty adjusting their “rule based” lexicon as to what is legal according to which, and which is illegal according to what.
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Shame on Locsin for waving in the face of Chinese ambassador Huang Xilian and the Ministry of Foreign Affairs in Beijing a Mutual Defense Treaty between Manila and Washington that needs heavy review and repair.
While it is true that the China Coast Guard ‘blocked and water cannoned’ Philippine boats who were enroute to Ayungin (Second Thomas) Shoal re-supplying our forces holed in a dilapidated Philippine naval vessel RPS Sierra Madre that President Erap Estrada ordered grounded on the shoal, in a left-handed tactic to “bolster” our presence there, China for its part, argued its coast guard was performing “official duties in accordance with the law”.
This area is part of the disputed area between China and the Philippines. There is a joint monitoring mechanism between China and the Philippines making sure information exchanges are working precisely in order to avoid embarrassments like this.
For years and months, the needs of the Philippine Navy detachment inside the MV Sierra Madre junk have been continuously resupplied. So why was China not informed this time of any such movement on the Philippine side?
Prepositioning the real agenda
Philippine diplomatic and defense officials met in Washington D.C. for two days on November 15 and 16 just three months after President Duterte resumed the Visiting Forces Agreement, which cloaks US soldiers coming to the Philippines with diplomatic immunity.
A joint statement signed by Ambassador Jose Manuel G. Romualdez and Undersecretary of National Defense Cardozo M. Luna for the Philippine Government, and Assistant Secretary of State for East Asian and Pacific Affairs Daniel J. Kritenbrink and Assistant Secretary of Defense for Indo-Pacific Security Affairs Ely S. Ratner for the US Government, as Co-Chairs of the 9th BSD, saying both sides are keen to add more facilities to preposition US forces and defense materiel in the Philippines.
The plan to sign an intel-sharing agreement comes as the Philippines and US confront mutual concerns in the South China Sea, where tension escalated as a result of Chinese assertiveness. Washington has also expressed deep concern over Chinese behavior in the Taiwan Strait, located north of the Philippines and near Taiwan which is another flashpoint.
“We intend to promote interoperability of the US and Philippine armed forces” which includes establishing a coordination center, developing a joint command and control for operations, and finishing the maritime “framework” to enable their soldiers to execute joint operations more effectively, the statement said.
The Ayungin brouhaha prepositions this joint statement, to spike public opinion, before the details are submitted for approval of President Duterte, who is the chief architect of foreign policy and the commander-in-chief of the armed forces.
But they cannot put the President on a dead end here with no choice but sign. The South China Seas is not the defining issue in the Philippine 2022 elections.
I hope President Duterte finally comes to realize that there are indeed a cordon sanitaire running rings around him. While Xi Jingpin and Joe Biden have warmed up discussing post-pandemic economic cooperation, our “boy” foreign minister is busy rattling the saber for the gringos.
What is more crystal clear here is that the Americans are again raring to fight China, up to the last Filipino!