OF LAW AND POLITICS

Ambassador Jaime S. Bautista

Second of Four Parts on the Notification to Terminate the VFA: The Enforcement of the Arbitral Award is PH Core Interest

The ruling of the Arbitration Tribunal vindicated the Philippines’ protests and swept away the apparent picture of China in a position to control the South China Sea because of its military and economic power.  The Visiting Forces Agreement is a component of the Philippines’ Collective Defense to have a pragmatic approach to the enforcement of the Arbitration Ruling.

Nine-Dash-Line

The main threat to the Philippines’ security is the Nine-Dash-Line which seeks to convert the South China Sea into a Chinese lake and place the region under its sphere of influence as the regional hegemon.

The Nine-Dash-Line serves as cover for China’s occupation of Mischief Reef and its invasion of Scarborough Shoal.  It is China’s justification for violating the Philippines’ sovereign tights over its 200-mile Exclusive Economic Zone (EEZ) and Continental Shelf.

In May 2009, China addressed a Note Verbale to the United Nations, the text of which claimed sovereignty to the "islands in the South China Sea and the adjacent waters", and sovereign rights over the South China Sea, attaching a map of China’s Nine-Dash-Line.

The Nine-Dash-Line, with its extravagant claims, has also put China in conflict with our ASEAN neighbors bordering the South China Sea: Indonesia, Vietnam, Malaysia and Brunei.

The ASEAN Foreign Ministers, meeting in Vientiane in 2016, expressed serious concerns over developments in the South China Sea and emphasized the importance of non-militarization and self-restraint in the conduct of all activities, including land reclamation, which have caused tension in the region.

Common Heritage of Mankind

China’s Nine-Dash-Line, in encompassing the high seas and its deep sea-bed, further violates the Common Heritage of Mankind.  Under this principle of UNCLOS, the “Area” or deep sea-bed which lies under the high seas is beyond national jurisdiction.

The UN Convention on the Law of the Sea does not allow any State to claim sovereign rights beyond its own 200-mile EEZ/ Continental Shelf (or Expanded Continental Shelf).  Any claim beyond these limits allowed by UNCLOS necessarily encroaches on the high seas or the EEZ/ Continental Shelf of another State.

The Common Heritage of Mankind safeguards the rich resources lying below the High Seas for the benefit of all countries, whether coastal or landlocked, and prevents powerful countries from exploiting them to the exclusion of the poorer countries.

Its violation is offensive to all the ASEAN countries and the rest of the world, which stand to lose when the exploitation of these resources begins.

Acts of Aggression

The issue of whether China has a history or not of expansionism is pointless.

China occupied Mischief Reef in 1995, after the Philippine Senate voted to eject the US bases at Clark and Subic.  Mischief Reef is a low tide elevation within the Philippines Exclusive Economic Zone (EEZ) and forms part of its Continental shelf, over which the Philippines has exclusive sovereign rights.  It is not an island or a rock over which China can claim sovereignty.

China first built a platform on Mischief Reef explaining, when the Philippines protested, that this was a shelter for fishermen, regardless of nationality. Thereafter, China converted Mischief Reef into an artificial island despite continued Philippine protests.

When China began flexing its military muscle and building other artificial islands, with its emergence as the dominant economic power in Asia, the Philippines still failed to perceive the danger until China seized Scarborough Shoal which is undoubtedly Philippine territory.

Arbitration to Assert Sovereign Equality and Invoke the Rule of Law

The Philippines was then constrained to file the arbitration case against China to assert sovereign equality and resolve the issues of its maritime sovereign rights in accordance with international law.

In July 2016, the Arbitration Tribunal, constituted in accordance with Annex VII of the UN Convention of the Law of the Sea (UNCLOS), ruled that China’s Nine-Dash-Line is invalid and has no legal basis under international law.   But China has refused to recognize the ruling of the UNCLOS Arbitration Tribunal that the Nine-Dash-Line violates International Law. 

China’s and PH Core Interests

In the aftermath of the ruling, the Philippine Council for Foreign Relations (PCFR) and the Philippine Ambassadors’ Foundation, Inc (PAFI) visited Beijing in 2016 to conduct track 2 diplomacy, upon the invitation of the Chinese People’s Institute of Foreign Affairs.  

At the Welcome reception at Beijing’s airport, Vice Foreign Minister Liu Zhenmin delivered the message to us that China will not abide by the Arbitral ruling and stressed that the nine-dash line is a core interest of China.

The Arbitral Ruling is now part of International Law on the principle of pacta sunt servanda since both the Philippines and China are Contracting Parties to the UN Convention on the Law of the Sea.  Under this Convention, the ruling of the UNCLOS Arbitration Tribunal is final, binding and not subject to appeal.  President Rodrigo Duterte himself conveyed this message to China.

The refusal of China to abide by the Arbitration Ruling and abandon the Nine-Dash-Line has been the main cause of recent tension in the South China Sea. China’s military might and economic power has temporarily allowed China to be defiant of the Rule of Law.

As a sovereign country, the Philippines needs to recover Mischief Reef and Scarborough Shoal and to protect its territorial and maritime areas located outside its archipelagic baselines. This is demanded by the Philippines’ core interests: the defense of its sovereignty and territorial integrity. It is in this light that the notice to terminate the VFA should be reviewed.

The Arbitration Tribunal did not touch the issue of sovereignty over Scarborough; only the issue of fishing rights was raised.  The Philippines can bring the issue of Philippine sovereignty over Scarborough Shoal to the International Court of Justice with the consent of China.

Strategic Thinking

There is need for strategic thinking to persuade China to disgorge the Philippine rocks and low-tide elevations that China has swallowed.

The strategy to recover our maritime territories, based on international law, will necessarily need to combine negotiating skill, the strength of the Philippines’ alliances, and the pressure of public opinion in the community of nations.

The Philippines has been giving China time and space to retreat from its policy of might is right. The Philippines needs to muster all its forces to face China in public opinion warfare, psychological warfare and legal warfare, in which China has been engaging us.

.Ambassador Jaime S. Bautista, Doctor of laws, is

Vice President of the Philippine Ambassadors’ Foundation Inc and of the Philippine Council For Foreign Relations

OF LAW AND POLITICS

First of Four Articles on the Notice to Terminate the Visiting Forces Agreement: Big Picture

Jaime S. Bautista

The first part of this series of articles gives a brief historical picture of the issues which should be looked at in considering the issues of sovereignty and the threats to our country’s territorial integrity.  This is a reprint of my article entitled “Reviewing the Visiting Forces Agreement” which was first published by the Manila Times under this column on 21 September 2013.  Reproduced below is the entire article:

“The Philippines should conduct the negotiations with respect to the revision of the Visiting Forces Agreement, mindful of the shifts in the global balance of power, the full range of threats to our security, and all the options to extend our security, including our economic interests.

“Since the signing of the VFA in 1999, there have been strategic developments both in Asia and elsewhere, and shifts in the axis of power.  The so-called “US pivot to Asia” is a reaction to these changes taking place.  

US Pivot to Asia

“Historically, the US pivot to Asia might be said to have begun in the nineteenth century when the United States invaded the Philippine Islands during the Spanish American War of 1898.  This conflict recorded the first misunderstanding between the Americans and Filipinos, which led to the Philippine American War.  Commodore George Dewey denied that he had struck a deal with President Emilio Aguinaldo for Philippine support for the American invasion of the Walled City of Manila.  At that time, international law was defined as the body of rules binding upon “civilized states” in their relations with one another.  The Philippines did not qualify as a subject of international law, with rights and duties under this law.  This is the background for the famous anecdote of President William McKinley praying to God, and deciding thereafter to annex the Philippines.

“Clearly, the renegotiation of the VFA provides the occasion to establish a clear understanding of the scope and conditions for the visits of US naval vessels, planes   and troops to the Philippines on a proposed “rotational basis.”   

“This occasion also provides the opportunity for the Philippines to re-visit the Mutual Defense Treaty (MDT) with the United States, on which the VFA is based, and to address the issues on which there has been dissatisfaction on the part of critics of this treaty.  These include the issue that the MDT does not provide for automatic operation of the treaty in case of an attack on the Philippines as in the case of the NATO treaty, that the defense treaty is not clear on whether it provides protection for the islands and rocks outside the Philippines’ archipelagic baselines but within its Economic Exclusive Zone (EEZ), and that the said treaty has not been of sufficient help with respect to the modernization of the Armed Forces of the Philippines.

“At the outset, it should be pointed out that the VFA signed in 1999 covered only visits approved by the Philippine Government.  Nevertheless, as the USA is the world’s superpower, the Philippines should be mindful of a number of scenarios that could take place, given the tensions in areas near the Philippines.   What will happen, for example, should the United States launch a military strike against Iran in the Gulf or against North Korea in the Korean peninsula and the Philippines should opt to stay out of the conflict?  Under international law, the Philippines would have obligations as a neutral state not to allow its territory to be used as a staging point.

“The Philippines has a special concern with what happens in the Middle East, the Gulf, and the Korean peninsula.  It has a big diaspora in countries in all of these potential conflict areas, and this gives the Philippines a global reach.

“A scenario closer to home is the conflict that may take place in the Taiwan Straights although this scenario is not likely, given the improved relations between China and Taiwan.   In the past, the presence of the US Seventh Fleet impeded the invasion of Taiwan from the Chinese mainland.  If war should break out in the Taiwan Straits, and the United States intervenes, US armed forces present in the Philippines would be exposed to attack.

China Threat

“Critics of the VFA point to this scenario and argue that the Philippines should revoke the VFA because they think of the Philippines as a small country, which should avoid being crushed in a fight between two elephants.  Moreover, they also see the USA is a declining power and that in time, China will become the dominant superpower.

“This rising economic superpower is the immediate threat to the Philippines’ security with its armed occupation of Bajo de Masinloc (Scarborough Shoal) and Mischief Reef and its continuing threat to seize other submerged features and protruding rocks within the Philippines’ Continental Shelf and Exclusive Economic Zone.  It is through this prism that Filipinos today view the Philippines’ strategic relations with China.

“Some political analysts argue that the crisis over Masinloc has come about as a result of China’s apprehension to the so-called US pivot to the Asia Pacific region and its reaction to the increased military presence of the United States in the Philippines under the Visiting Forces Agreement.  It is China engaging in shadow boxing with the United States. The Philippines evidently is no match militarily and has the weakest armed forces in the region, although they have experience in combat and as peacekeeping forces.  

PH Strategic Importance

“However, the Philippines cannot be thought of as a small island in the Pacific.  The Philippines is one of the three great archipelagoes located close to the Asian Continent.  At the northern end is Japan, at the southern end Indonesia and strategically located at the center is the Philippines.  Like Indonesia and Japan, the Philippines is a large maritime country with the twelfth largest population in the world.  It is the second largest in ASEAN in terms of human resources and its economy is one of the few bright spots in the world today.

“Not only is the Philippines strategically important because of its geographical location at the center of the maritime region where half of the world’s cargo passes but the Philippines plays a strategic role in international commerce.  It is the backbone of the shipping industry, being the biggest seafaring country in the world.

“These are the strengths that the Philippines bring to the negotiating table.   The main concern of the Philippines is the protection of its sovereign rights over its continental shelf and exclusive economic zone.  The Philippines has adopted a three-pronged strategy to achieve this end by bringing a case before the Arbitral Tribunal of the Law of the Sea, a dialogue with China bilaterally and in the ASEAN forums, and  

inviting the attention of the United States to the tensions in the West Philippine Sea under its defense arrangements.

“The on-going talks on a new Access Agreement on a “rotational basis” is recognition by the United States of having neglected its interests in the Asia Pacific and leaving the countries in Southeast Asia exposed to the growing economic and military power of China.  The Philippines was constrained to have its own pivot to China under President Gloria Macapagal Arroyo. The so-called pivot of the United States to   Asia Pacific is to prevent the region from falling within China’s sphere of influence. 

“The Philippines has shifted its emphasis on relations with China and the United States from economic to security interests because of China’s aggression.  As long as China is engaged along this road, the Philippines will want to have strengthened defense arrangements with the United States.

“The Philippines has benefited from the VFA.  It has received assistance in setting up its Coast Watch System (basically a national radar system for its maritime domain awareness) related to protecting its marine resources.  It has also received assistance in disaster management as the Philippines is prone to typhoons and other calamities, and beefing up its national security and counter-terrorism capabilities, important for Mindanao.    

Equivocal Commitments

“However, the Philippines has received only equivocal commitments from the United States with respect to the defense of the Philippines’ sovereign rights in its continental shelf and exclusive economic zone in the West Philippine Seas unlike the commitment given to Japan over Japan’s administration of the disputed Senkaku/Diayao Island.  Secretary of State Hilary Clinton explicitly guaranteed US support for all Japanese territory, including the Senkaku/Diayao Islands, under its Mutual Defense Treaty with Japan.

“It should be noted that the Philippines’ mainland is not perceived to be under threat of external attack.  Only its maritime territory is subject to Chinese aggression.  Unless the Philippines receives a firm commitment like that provided to Japan, the Philippines should assess the value that the VFA has for the Philippines vis a vis the dangers arising and the economic losses to be sustained.

“In any event, the Philippines should look down the road in the next years for a cost-benefit analysis of whether security guarantees/ support will continue to be more important than sustained Chinese investment over the next 20-30 years.  As an alternative to security guarantees, the Philippines should develop a strategy of building a web of interlocking economic interests as a shield against external attack. Supporting this strategy would be greater reliance on international law, which should be a guiding principle of Philippine foreign policy.”

Ambassador Jaime S. Bautista, Doctor of laws, and

Vice President of the Philippine Ambassadors’ Foundation Inc and of the Philippine Council For Foreign Relations