OF LAW AND POLITICS
Ambassador Jaime S. Bautista
Four of Four Parts on the Notice to Terminate the VFA: PH should keep its friends and raise its voice in ASEAN to defend its permanent interests.
On the eve of the 45th anniversary of the establishment of diplomatic relations between the Philippines and China, I reminisce about my tour of duty in Peking from 1976 to 1979 and my experience in the 1980s, and reflect on the many changes that have occurred in the relations of the Philippines with China and other States.
No Permanent Friends, No Permanent Enemies
The relations between states are dynamic, sometimes determined by the personality and ambitions of their leaders. Thus, Lord Palmerston, the noted British Prime Minister, and other statesmen have observed that as between states, there are no permanent friends or permanent enemies, only permanent interests. This is true of both the Philippines and China. The Philippines, however, should keep its friends, especially at a time when its sovereignty and territorial integrity are under threat.
The Philippines has the Mutual Defense Treaty, the Visiting Forces Agreement, and the Enhanced Defense Cooperation Agreement with the United States but the United States was once the enemy. The Commonwealth of the Philippines fought against Japan during the Second World War because the Philippines was on the brink of becoming independent. The Philippines now has strategic relations with Japan for economic and security reasons.
China fought the United States and the Philippines in the Korean War because the United States and allied troops, bearing the flag of the United Nations, crossed the 38th Parallel after driving back the North Korean invaders. This was the era of the Cold War when China and the Soviet Union were on the same side.
The Sino-Soviet split on ideology after the demise of Josef Stalin and his succession by Nikita Kruschev marked the Soviet Union as China’s main antagonist. This allowed the surprise Nixon visit to Peking in 1972, and initially the exchange of Liaison Offices. The normalization of relations between China and the United States followed on 1 January 1979.
1976 as Year of Great Changes in China
I was cross-posted from Kuala Lumpur to Peking in 1976, when great changes took place in China. It was the year of the demise of the triumvirate; Zhou Enlai (Head of Government ) in January, Zhu Deh (Head of State) in May, and Mao Zedong (Head of Party) in September. Earlier in April, the Gang of Four headed by Mao’s wife, Jiang Qing, had succeeded in deposing Deng Xiaoping a second time.
The great earthquake in Tangshan took place in July, an omen of the fall of a dynasty according to Chinese belief. With Mao’s demise two months later, the Gang of Four lost in the “Struggle Session” which ensued, leading to the ascendancy of Deng Xiaoping, the author of China’s modernization.
The big question was whether Premier Hua Guafeng could retain power as Mao’s chosen successor. I reported that Deng would return because he was with the Long March and his Comrades were around. His economic views were pragmatic reflected in his comment: “It does not matter whether the cat is black or white as long as it catches mice.” Hua’s experience was limited to the rural economy. He lasted for several years but eventually lost influence to Deng whom I predicted in a report I authored would rise to become China’s paramount leader.
Great Leaders
Vice Chairman Deng Xiaoping and King Norodom Sihanouk were among the great leaders I had the pleasure of meeting in Peking.
I had the privilege of meeting Deng for the first time, when as Charge ad interim, I helped send off Vice Premier Li Xiannian, for his official visit to Manila. Deng was there to impress upon the importance of the visit. He was very nice, posing for a picture with me and my spouse and the Embassy staff.
Li’s visit to the Philippines was a success. My wife and I had the honor of meeting him and his spouse at the Great Hall of the People on multiple occasions at either the dinners (as Charge a.i.) or the return dinners (as Ambassador Narciso G. Reyes’s substitute) for the State Visits. Li and his wife would break out into big smiles upon seeing me and my wife in our barong and Filipina dress during the Protocol to introduce the guests. Li became president of China from June 1983 to April 1988.
China was very active promoting itself as the leader of the developing countries and the socialist camp. Selected leaders from the Third World and the Second World who were not considered as being subservient to the Soviet Union were invited and lavishly feted.
Among the Heads of State I shook hands with were leaders subsequently deposed like Khmer Rouge’s Pol Pot and Central African Emperor Jean Bedal Bokassa, as well as those who suffered a worse fate, such as being executed or assassinated like Romania’s Nicolae Ceaucescu, Equatorial Guinea’s Francisco Macias Ngume and North Yemen’s Ibrahim al-Hamdi and his South Yemen counterpart.
I was privileged to meet Deng again when he received the tourism delegation headed by GSIS and Manila Hotel President Roman Cruz, Jr. I recall Cruz warning Deng of tourism pollution. The Philippines helped train the Chinese hotel industry. When Deng made a speech proposing air bridges between Peking and Taipei which I reported to the DFA, Philippine Airlines became the first airline allowed by China to fly to both Peking and Taipei.
As for the survivor and astute statesman that Sihanouk showed himself to be, I met him when he invited Ambassador Reyes and the entire Philippine Embassy staff (all were accredited with diplomatic rank) to celebrate at his palace on the occasion of Cambodia’s New Year. Because of this invitation, I postponed my departure for my cross-posting to the Court of St. James. Sihanouk was in exile in Peking as China’s guest when Vietnam installed the Heng Samrin regime.
China-Vietnam War
Before Cambodia’s New Year celebration took place, the Sino-Vietnamese war broke out. Deng had just visited the United States. I seemed to be lucky to be the Charge’ at such times of crisis. China had been hinting that Vietnam would be taught a lesson for invading Democratic Kampuchea, China’s ally. Vietnam was seen as the Soviet Union’s Cuba proxy in Asia.
I recall that elsewhere in the world, the Soviet Union seemed to be tilting the balance of global power in its favor, with Cuba’s intervention in Angola. The Soviet Union also had success at the Horn of Africa when Ethiopia joined the Soviet Camp and thwarted Somalia’s invasion of the Ogaden region. Vietnam’s invasion which installed the Heng Samrin regime was, therefore, more intolerable.
My luck seemed to hold, because I recall that, while taking a stroll after dinner near our residential building, I encountered the spouse of a fellow diplomat. She looked at me in surprise, saying: “Jimmy, why are you not at your Embassy?” Her husband was at their Liaison Office, reporting that the invasion had begun. I rushed to our Embassy.
I recall that the invasion took place on the eve of the luncheon invitation hosted by the Malaysian Ambassador in honor of Vice Premier Deng Xiaoping who had returned from a successful visit of Malaysia and Singapore. Foreign Minister Huang Hua was the official designated to represent Deng.
In preparation for this event, the Malaysian deputy chief of mission, Mr. Nik Mohamed, had met with me and our Thai counterpart to discuss current issues. At that time, only Malaysia, Thailand and the Philippines had Embassies in Peking. Mohamed requested me to avoid touching on the sensitive issue of Vietnam.
Voice Radio
During the luncheon celebration, I could not avoid mentioning this important issue. It was not every day that I was at a small table with my wife, dining with the Chinese Foreign Minister. When I broached the subject, I saw the Malaysian and Thai Ambassadors lean noticeably forward to listen. Huang Hua switched from English to Mandarin.
I used the occasion of the conflict to renew our Embassy’s request for permission to have voice radio. At that time, only countries considered as China’s special friends were permitted the use of voice radio. The rest were allowed to send and receive messages by radio only through Morse code. I succeeded in getting the voice radio, where others could not.
Cambodian New Year
I enjoyed the Cambodian New Year’s celebration. Sihanouk was the artist and charismatic figure that he strived to be. He was seated alone, at a table separated from the guests, as if on a throne. His wife, the lovely Princess Monique, was across the room with other prominent guests.
Sihanouk gave the Philippines special attention. Ambassador Narciso G. Reyes had presented to him a tape of Filipino songs, including “Dahil sa Iyo” sang by First Lady Mrs. Imelda R. Marcos. Sihanouk highlighted her rendition and played the entire tape during the interval. The party ended with a Filipino song. Sihanouk also seemed to have anticipated the importance of a future event.
ICRC Convention in Manila
In 1981, The Philippines was scheduled to host the Convention of the International Committee of the Red Cross (ICRC) in Manila through the efforts of the First Lady. This was the time when ASEAN and China opposed the Heng Samrin’s regime bid to be seated at the UN. The regime sought to be present at this ICRC Convention. The ICRC rules specified that the Red Cross actually in place in the country should be the one entitled to participate in the Conference.
Because the ICRC threatened to move the Conference to another venue, the DFA instructed the Philippine Mission in Geneva to discuss the matter with the ICRC. However, the task fell upon me as Charge ad interim in London because the ICRC President, a British subject, was in England
The ASEAN London Committee declined my request to be present at the meeting. The ICRC President expressed great displeasure that the Heng Samrin Red Cross could not get visas, arguing vigorously he had received assurances from the First Lady but I told him this was an ASEAN position. The Conference in Manila took place as scheduled without any Red Cross delegation from Cambodia.
Multilateral Cooperation as Developing Countries
The China I knew was a developing country working in harmony with countries of the Third World. China was active in the Third UN Conference on the Law of the Sea as was the Philippines. The Conference readily accepted the principle of the Exclusive Economic Zone (EEZ) but some fishing Powers sought to share in the sovereign rights of the EEZ States. China opposed this attempt to dilute the exclusiveness of the EEZ.
Even before the entry into effect of the UN Convention on the Law of the Sea, the International Court of Justice recognized that State practice had accepted the principles of the EEZ and Continental Shelf .
The EEZ is an area beyond and adjacent to the territorial sea that may extend up to 200 miles, reserved for the economic benefit of the population of the adjacent state.
The Continental Shelf is the natural prolongation of the land territory of a coastal state that lies beyond the territorial sea and beneath the EEZ up to 200 miles or beyond, under certain conditions. These are maritime zones adjacent to a State, as opposed to land, which must have features permanently above the sea.
All the countries bordering the South China Sea base their sovereign rights to exploit the resources of their adjoining maritime zones on the principles of the EEZ and Continental Shelf. But China now claims to have rights across the vast expanse of the South China Sea based on a 9-Dash-Line, contradicting its stand at the Third UN Conference on the Law of the Sea.
China as Regional Hegemon
Today, China is an economic superpower and the hegemon in our region. Because of its military superiority, China has been aggressive in encroaching on the maritime zones of ASEAN countries across the South China Sea.
When the Philippines filed its Complaint against China, to declare the Nine-Dash-Line as having no legal effect, China abused the Philippines and refused to comply with the Compulsory Procedures for Settlement of Disputes under the UN Convention of the Law of the Sea. The Philippines was simply enforcing its sovereign right for peaceful settlement of the dispute.
What is it that makes an economic power become a bully and a new colonial imperialist, and act as though it has the right to be a tyrant? This phenomenon was observed by no less than Deng Xiaoping when he said:
“If one day, China should change its color and turn into a superpower, if she too should play the tyrant in the world, and everywhere subject others to her bullying, aggression, and exploitation, the people of the world should identify her as social-imperialism, expose it, oppose it, and work together with the Chinese people to overthrow it. “
So, Deng was telling the Chinese people: Don’t take other people for granted. And telling other people: Don’t sell yourselves short.
Permanent Interests
Contrary to fake news being propagated, the Arbitral Award was not issued by the Permanent Court of Arbitration which simply acted as the Registrar (Secretariat).
The Arbitral Tribunal was a UN tribunal constituted pursuant to Annex VII of the UN Convention on the Law of the Sea. The President of the International Tribunal of the Law of the Sea appointed four of the members of the Arbitral Tribunal, including its President, due to China’s refusal to take part in the proceedings.
China’s refusal to recognize the jurisdiction of the Arbitral Tribunal had no effect on its standing. Article 9 of the Annex of the UN Convention of the Law of the Sea provides that “Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings” while Article 11 provides that “the award shall be final and without appeal.”
The Philippines’ permanent interests should dictate its foreign policy. Such is the the Arbitral Award against China which protects the Philippines sovereign rights to its 200-mile Exclusive Economic Zone and its Continental Shelf in the West Philippine Sea.
Almost four years have passed since the Arbitral Award was published. The Philippines chose to engage China in quiet diplomacy to allow a cooling off period because of China’s unjustified angry reaction.
During his fifth visit to China, President told President Xi Jinping that, in accordance with the UN Convention on the Law of the Sea, “the arbitral award was final, binding and without appeal.”
Need for New Diplomacy
Much time has been lost for replacing the Malampaya oil fields, which will be depleted soon. The Philippines’ food security is also at risk, ominously at this time of the Covid 19 pandemic, with Filipino fishermen being harassed to prevent them from fishing in their traditional fishing grounds.
The Philippines can no longer afford to continue with quiet diplomacy, which places no pressure on China and encourages China to intimidate its neighbors.
The recent behavior of China’s Navy in its encounters with the Philippine Navy and the Malaysian Navy during this Covid-19 crisis does not inspire much hope that China will choose a face saving way to abandon the fiction of the nine-dash-line.
On 17 February 2020, the Chinese corvette with bow No. 514 trained its radar guns on BRP Conrado Yap (PS 39) when the latter was on sovereign patrol mission within Philippine waters. The Philippines refused to be intimidated and filed a Protest.
The Philippines should now signal its determination to enforce the Arbitral Award by putting it on record in the ASEAN forums. The negotiations on a Code of Conduct between ASEAN and China should uphold the Arbitral Award.
China has institutional links with ASEAN as a Dialogue Partner, a member of ASEAN Plus 3, a member of the ASEAN East Asia Summit and a member of the ASEAN Regional Forum. China is also a member of APEC in which the ten ASEAN member countries have a central role. The Philippines needs to resonate its voice in these forums, including through more recent communication technologies in this new era of lockdowns, and to tell the true story to the Chinese people and the whole world.
Thucydides Trap
The world has turned full circle since the Sino-Soviet split. In Southeast Asia, ASEAN is now ten.
The Cold War has ended, the Soviet Union has disappeared and a strong Russia has emerged. China and Russia are friends, having resolved their territorial differences. China is now challenging the United States’ dominant position in the global order, having long prepared for leadership.
The Philippines seems unable to see on time the reefs that can sink the nation, although like China, its people have shown the will to defend their homeland.
In the UN Convention of the Law of the Sea, even though China is the security threat, the Philippines has common stand with China on the protection of their maritime zones. Both maintain that foreign warships need to give notice and request permission to enter their territorial sea. This is opposed to the view of the Maritime Powers.
On the issue of military exercises in the EEZ, the Convention contains a provision in Article 301 providing for “the peaceful uses of the seas” and the obligation of States Parties “to refrain from the threat or use of force against the territorial integrity or political independence of any State.”
Applying this article to the EEZ, some countries like Bangladesh, Brazil, Cape Verde, India, Malaysia, Pakistan and Uruguay, take the position that, in the EEZ, foreign military exercises and maneuvers, including the right to use weapons, are only permissible with the consent of the coastal state. China has not made a declaration supporting this view. I think that it is in the long- term interest of the Philippines to support this view.
Cambodia is not a Party to the UN Convention on the Law of the Sea but it is in Cambodia’s interest to be in solidarity with ASEAN on fundamental issues of regional concern, such as on the peaceful resolution of conflicts in the South China Sea.
Will China’s present leaders listen to Deng Xiaoping’s exhortation and give utmost attention to ASEAN’s concerns about the militarization of the South China Sea to avoid the Thucydides Trap? Already, China has warned of the risk of a new Cold War with the issue of the origin of the new Corona virus.
The Philippines should move for the ASEAN Outlook on the Indo Pacific to be well defined and to be put into practice so that it can achieve a Sea of Peace, Stability and Progress. China should value its friendship with the Philippines and support this effort.
