Presidential will needed against China incursions

Smugness, or a misplaced sense of self-satisfaction despite the swelling discontent expressed by various sectors, has generally characterized President Duterte’s administration as it deals, or fails to deal, with two of our country’s outstanding problems today.

One is the worsening state of the COVID-19 pandemic after over a year of economically debilitating lockdowns. The other is China’s continuing incursions into the West Philippine Sea, trampling on our maritime rights enshrined in the 1994 United Nations Convention on the Law of the Sea (UNCLOS) and upheld by an international arbitral tribunal in 2016.

Since early March, over 200 maritime militia vessels have been “swarming” the country’s exclusive economic zone (EEZ) in the Julian Felipe Reef.  A part of the Kalayaan Island Group, Julian Felipe Reef is only 175 nautical miles west of Bataraza town in Palawan, but more than 638 nautical miles from China’s Hainan Island.

The swarming impelled two Cabinet members to issue strong protests.

Defense Secretary Delfin Lorenzana demanded the Chinese vessels’ immediate withdrawal, rejecting China’s claim that the ships were seeking shelter from bad weather. Foreign Affairs Secretary Teodoro Locsin Jr. followed suit, calling for the vessels’ pullout. He even vowed to file a diplomatic protest each day until the ships were taken away. Their actions (particularly Lorenzana’s) have earned support from various groups, including eight national and regional business organizations and the Philippine Military Academy Alumni Association.

In late March, President Duterte held a private meeting with China’s ambassador, Huang Xilian, at which the latter reportedly explained that the ships at Julian Felipe were not militia vessels, but fishing boats seeking shelter against bad weather (which wasn’t supported by the facts). Yet, Duterte apparently accepted the explanation without any question.

On April 11, Philippine maritime patrols reported spotting 240 Chinese vessels spread at various reefs and islets within the country’s EEZ; nine of them are still parked at Julian Felipe Reef. The government’s National Task Force on the West Philippine Sea said of this finding: “The continuous swarming of Chinese vessels poses a threat to the safety of navigation, safety of life at sea and impedes the exclusive right of Filipinos to benefit from the marine wealth in the EEZ.”

Asked in a briefing what the President would do about this problem, his spokesman Harry Roque initially replied he wouldn’t know.  Then he said, “Whatever the President is doing, let us allow him to do it privately and whatever diplomatic initiative being undertaken by (him) should not be made public… So let’s leave the President to his own device[s]…”

China’s intransigence spurred two recently retired Supreme Court magistrates to ramp up the Philippine case against China, both invoking the UNCLOS.

The rules-based maritime order put in place by the UNCLOS, warned former SC Senior Associate Justice Antonio T. Carpio last Wednesday, is imperilled by China’s undeterred incursions into the West Philippine Sea and other areas in the South China Sea that are being claimed by the Philippines, Malaysia, Vietnam and Brunei, apart from China. In an online webinar, Carpio urged the nations of the world – 167 countries and the European Union (representing 27 European states) are signatories of the UNCLOS – to unite and “strongly push back” against China.

On Thursday, in his Inquirer column, Carpio wrote about two kinds of disputes in the Spratlys: One is the territorial dispute involving the issue of sovereignty over the geological features above water at high tide and their surrounding territorial seas. The other is the maritime dispute involving the economic rights to exploit the resources in the waters and seabed beyond the territorial seas.

While the maritime dispute was resolved with finality by The Hague arbitral tribunal in 2016, Carpio pointed out, the territorial dispute “remains outstanding.”

In that 2016 ruling, the International Arbitral Tribunal recognized and upheld the Philippines’ 370-kilometer exclusive economic zone in the West Philippine Sea, and declared as invalid China’s “nine-dash line” claim over almost all of the South China Sea. However, China has never accepted rejected the ruling.

Now Carpio – who played an important role in preparing and pursuing the Philippine case at The Hague tribunal – has put forward another legal step. He is proposing that the Philippines invite the states involved in the territorial dispute in the Spratlys to submit the dispute to a “binding voluntary arbitration” before the International Court of Justice.

His basis is that “the Philippines has a very strong case,” just as it did in the maritime dispute.

He cited five grounds, the first of which is that the Philippines now possesses “the oldest documentary evidence of [our] sovereignty over the Spratlys.” He referred to the 1734 Murillo Velarde map showing that the country’s official territory during the Spanish colonial regime included the Spratlys, then called Los Bajos de Paragua. The 2016 arbitral ruling that invalidated China’s claim over the SCS is another ground. (Let’s discuss the three other grounds some other time when space permits.)

Also last Wednesday, retired SC Associate Justice Francis H. Jardeleza suggested that the Philippines should consider filing a case, under the UNCLOS processes, against China’s incursion into the Julian Felipe Reef, “as soon as conditions warrant.”

Specifically, Jardeleza proposed using the 2016 arbitral tribunal’s ruling that Panatag (Scarborough) Shoal has been a “traditional fishing ground for artisan fishermen of many nationalities” as ground to demolish China’s foreign ministry claim that China has “traditional fishing rights” in the Julian Felipe Reef under international law. How so? The ruling says artisan fishing usually involves using “canoes fitted with small outboard engines,” whereas the Chinese vessels used in the swarming are big commercial-type ones.

Jardeleza also pointed out that filing a case against China now can be “an entirely Filipino endeavor,” without the need to hire international lawyers and experts. There are now, he wrote in a commentary, no less than 41 Filipinos who have graduated from the Rhodes Academy of Ocean Law and Policy, steeped in courses on the UNCLOS, who can handle the case with a high sense of patriotism.

The problem, as we all know, is the presidential political will.

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