Third of Four Parts on the Notice to Terminate the VFA: Because China refuses to abide by International Law, PH should not gamble on its security.

OF LAW AND POLITICS

Jaime S. Bautista

Third of Four Parts on the Notice to Terminate the VFA:  Because China refuses to abide by International Law, PH should not gamble on its security

While the world’s attention has been diverted to Covid-19, China has remained focused on its strategy of building artificial islands in order to take control of the South China Sea.

Recently, Xinhua News Agency announced that China’s Academy of Science has established “two research stations” on Subi Reef (Zamora) and Fiery Cross Reef (Kagitingan) and that “Scientists [will] live and conduct field research on ecology, geology and environment. “

China’s action is controversial because Subi Reef falls within Thitu’s  (Pag-asa) 12- mile territorial sea, according to the finding of the UN Convention on the Law of the Sea Arbitration Tribunal.  Furthermore, China’s declared purpose should remind us that when China first occupied Mischief Reef, its pretext was that it was building a platform where fishermen regardless of nationality could take refuge.

The strength of the Philippines’ alliances is an important element in any strategy of preventing China from taking control of the South China Sea and encroaching on the Philippines’ territorial and maritime rights.

While the Notice to terminate the VFA has been criticized, it has provided an urgent need for consultations to assess what impact the Notice will have on the Mutual Defense Agreement (MDT) and the Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the United States.

In view of the sensitivity of security matters, each of the Contracting Parties will certainly evaluate whether the other remains a reliable partner.

Inherent Right to Collective Defense

On the issue of sovereignty, the UN Charter recognizes the inherent right of a state to individual and collective defense, and declares that this right shall not be impaired.  The right of individual and collective defense is an exercise of sovereignty and protects a state’s right to exist.

The defense agreements of the Philippines with the United States do not threaten any third state.  

The PH-US MDT complies with the UN Charter and provides that, in case of an armed attack, the Contracting Parties shall immediately report the armed attack and the measures taken to the Security Council.

Both the Philippines and the United States signed the MDT, the VFA, and EDCA after an appreciation of their respective national interests. 

Philippines’ Security Concerns

In the case of the Philippines, the defense agreements with the United States were entered into to meet both traditional and non-traditional security threats to the Philippines.

The Philippines has a policy of amity with all nations but it cannot ignore the fact that the main external threat to the Philippines is China.   China has refused to abide by the Award of the UN Arbitration Tribunal and claims to own the South China Sea.

China continues to occupy Mischief Reef (Panganiban), a low tide elevation which is within the Philippines EEZ, is part of the Philippines’ Continental Shelf, and over which no State can claim sovereignty.  The Philippines has sovereign rights and jurisdiction over Mischief Reef.

China also occupies Hughes Reef, which the Arbitration Tribunal identified as distinct from McKennan (Chigua Reef) and which the Philippines considered as part of McKennan (Chigua Reef).  Hughes Reef is also a low tide elevation within the Philippines EEZ. but it is located within 12 nautical miles of high tide features on MacKennan (Chigua Reef) and Sin Cowe.

China further demands joint development of the oil resources within the Philippines’ EEZ, otherwise China has threatened to go to war.  This has persuaded the Philippines to enter into negotiations with China for joint development of oil reserves in the Reed Bank.

China has naval forces to prevent the Philippines from re-supplying the BRP Sierra Madre, which was ran aground to prevent China from occupying the Second Thomas Shoal (Ayungin Shoal) located in the area of the Reed Bank.  The presence of China’s naval forces for this purpose violates the UN Convention on the Law of the Sea.  Navigation means passing through and freedom of navigation carries the obligation of exercising the right in a peaceful manner.

China employs what is known as the cabbage strategy to intimidate Filipino fishermen from fishing in Philippines’ EEZ and at Scarborough Shoal, and to enable its fishermen to harvest fish in Philippine waters unimpeded. This strategy employs hundreds of Chinese militia boats, which carry arms, to swarm and intimidate through sheer numbers. 

When this strategy was used to encircle Pag-asa Island (Thitu, which is technically a rock) in Kalayaan Island Group (none of which is technically an island), the Philippines protested.  President Rodrigo Duterte called China’s attention that this risks a war because Philippine soldiers are stationed there.

The Cabbage Strategy has been effective in the salami slicing of Philippine maritime reefs and rocks.  China has built and fortified seven artificial islands in the South China Sea.  Two of them are rocks – Johnson Reef (Mabini) and  McKennan Reef (Chigua) - inside the Philippines EEZ.  Asean has called for the non-militarization of these artificial islands.

The land reclamations of these artificial islands have destroyed coral reefs, resulting in the depletion of fish stocks and threatening the food security of the entire region.

Finally, China has seized Scarborough Shoal (Bajo de Masinloc), which is not part of the Spratlys. These are rocks, over which the Philippines has sovereignty, which were used by US forces as target practice when the US had bases at Clark and Subic.  China was seen to be preparing to convert Bajo de Masinloc into a military base, but then Foreign Secretary Perfecto Yasay, Jr. warned China that this would be a game changer in bilateral relations.

Value of VFA

The Mutual Defense Treaty provides for defense against an armed attack.  The VFA and EDCA are supplementary agreements designed to make the MDT effective.

The VFA addresses traditional as well as non-traditional security threats such as terrorism, natural disasters and calamities, trafficking in persons and drugs, cyber crimes and others.   

The MDT without the VFA was described by Foreign Secretary Teodoro L. Locsin as a deflated balloon.  The termination of the VFA will effectively render the EDCA inoperable. The EDCA allows the prepositioning of US personnel and resources in the Philippines to allow for quick response to security threats.  Without the presence of forces, the MDT may be unable to deter an armed attack in time.  Thus, Japan and South Korea have US bases in their countries.

These supplementary agreements have already proven to be of invaluable assistance. The VFA made it possible for the United States Navy to give immediate aid to the Yolanda victims who were inaccessible because of our Government’s limited capabilities.  They allowed US personnel to assist in providing intelligence operations for the battle of Marawi in 2017.  They continue to provide for modern training in maritime security and amphibious operations invaluable for the defense of our EEZ as well as for counter terrorism operations.  As stated by Locsin, they are the substance that makes the MDT work.

Value of PH-US Mutual Defense Treaty

The Mutual Defense Treaty (MDT) under Article 4 provides that  “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.”

Examining Article 4, the PH-US MDT covers an armed attack on the Philippines either: 1) “on the metropolitan territory of the Philippines; 2) on the Island territories under its jurisdiction in the Pacific Ocean, and 3) its armed forces, public vessels or aircraft in the Pacific.” 

US Secretary of State Michael R. Pompeo has assured the Philippines that an attack on the Philippines’ armed forces, public vessels or aircraft in the South China Sea is covered by the MDT:

“As the South China Sea is part of the Pacific, any armed attack on any Philippine forces, aircraft, or public vessels in the South China Sea will trigger mutual defense obligations under Article 4 of our Mutual defense treaty."

Thus, an armed attack on the Philippine marines on BRP Sierra Madre, which guards the Ayungin Shoal in the Reed Bank, will trigger the MDT.  So too will an armed attack on the Philippine government vessels supplying the marines.  Likewise, an armed attack on the Philippine forces stationed in Pag-asa will trigger the MDT.

Expanded Coverage

However, the Philippines’ metropolitan territory is not perceived to be under threat of attack and the Philippines could be exposed to nuclear attack if war breaks out between the United States and China.

This is not likely because it is in the interest of both countries to promote peace, their economies being intertwined.  Moreover, China recognizes that it is still a developing country (its hinterland is largely undeveloped) and cannot match the US in military power.  A limited conflict, however, may occur due to, for example, collision of ships or aircraft arising from freedom of navigation operations in the South China Sea.

On the other hand, China as a threat to the Philippines’ security is present and real.  The PH-US MDT serves as a deterrent.  While it is in the US interest to promote peace with China, it will have to act to meet the common danger if China attacks the Philippines.   The US credibility will be at stake if it does not.

The risk of being exposed to nuclear attack should entitle the Philippines to an expanded coverage by the Mutual Defense Treaty, to include its EEZ and Continental Shelf.   This would serve to protect oil and gas fields that the Philippines may build with other countries like the US.

The Arbitral Tribunal has ruled with finality that the Philippines has exclusive sovereign rights to its 200-mile EEZ and Continental Shelf because China has no valid overlapping claims. 

The terms of the MDT should also cover Pag-asa and other rocks in Kalayan where the Philippines exercises effective jurisdiction. Under Article 4 of the MDT, an armed attack is deemed to include “an armed attack … on the Island territories under its jurisdiction in the Pacific Ocean”

Similarly, Japan’s Senkaku is covered by the US-Japan Security Treaty because Article 5 thereof commits the United States to defend aggression against territories under Japanese administration. 

Modernization of  AFP

Finally, the Modernization of the Armed Forces of the Philippines’ is an important issue to discuss.

The primary responsibility to defend Philippines’ territory and its resources remains with its armed forces, its Coast Guard and its other government entities. 

The Philippines needs ships and airplanes to prevent poaching of its fisheries and to defend its oil and gas in its Reed Bank.  Guerilla or asymmetric tactics cannot adequately protect these resources; vigilant patrolling is also needed. 

With its relatively small national budget, the Philippines will need to spend its money wisely and to source its materiel under the best possible terms.  Moreover, its resources will not be sufficient to acquire the armaments and equipment needed to modernize its armed forces within a short time.

Pragmatic considerations oblige the United States to assist the Philippines under honorable terms. The Philippines is the weak link in the United States forward defense in the Pacific.  This defense strategy appears to be a core interest of the US.

CONCLUSION

The Notice to Terminate the VFA has given urgency to discussing security. The Philippines should enter into negotiations for better terms for the MDT and the VFA.  The absence of Philippines’ defense alliance with the US will unnecessarily weaken the Philippines’ negotiating position vis-à-vis China.  The Philippines’ presently has no credible defense against China’s Nine-Dash-Line without the US deterrent. 

The Philippines cannot afford to gamble on security.

 Ambassador Jaime S. Bautista, Doctor of Laws, is Vice President of the Philippine Ambassadors’ Foundation, Inc. and of the Philippine Council For Foreign Relations.