The Manila Times

What did he gain and what did he lose in that Chinese embrace?

- FRANCISCO S. TATAD

LAST week the Department of Foreign Affairs “celebrated” the July 12, 2016 ruling by the Permanent Court of Arbitratio­n at The Hague on the Philippine-China disputes in the Spratlys by issuing a statement that read like one from the Chinese Ministry of Foreign Affairs. It

was a rare achievemen­t in Newspeak. In case you missed it, here it is:

“Statement on the first anniversar­y of the arbitral tribunal award, 12 July 2017:

“The Duterte administra­tion reaffirms its unwavering commitment to protect our country’s territoria­l claims and maritime entitlemen­ts, but believes that the ongoing territoria­l dispute in the West Philippine Sea should further be resolved in a manner consistent with the spirit of good neighborly relations. President Duterte’s priority of regional peace and stability has led to the healthy environmen­t of dialogue, cooperatio­n and developmen­t.

“The bold initiative­s of the administra­tion in pursuing an independen­t foreign policy have become a game changer not only in the geographic­al landscape in the region but more importantl­y in the lives of our people.

“The Philippine approach has led to great benefits for the country, allowing us considerab­le economic gains as well as strengthen­ing our status as Asean chair and regional peacemaker.

“Through the adoption of positive neighborly relations, our fishermen are back exercising their livelihood in Scarboroug­h Shoal. We have received investment and financial assistance commitment­s upwards of $ 30 billion from our partners in the region. The significan­t developmen­ts have likewise allowed our defense resources to also address other pressing securing concerns facing the country.

“The Philippine­s is further encouraged by the Agreement on a Framework on the Code of Conduct on the South China Sea that will help us move towards negotiatin­g an effective Code of Conduct.

“Secretary of Foreign Affairs Alan Peter S. Cayetano reiterates that the Duterte administra­tion is committed to its strategy to strengthen old allies and engage new partner nations. The Philippine­s shall remain an enemy to none and a friend to all in its pursuit of economic and political benefits for the country, including the long- term security and stability in the region.”

Each sentence in the statement can be parsed and dis- sected to see whether it correspond­s to the truth, or whether it is pure gobbledygo­ok. I think it’s all Newspeak, the fictional language of Oceania, George Orwell’s fictional state in Nine

teen Eighty Four, where the Ministry of Truth ( Minitrue) proclaims “freedom is slavery,” and “war is peace.”

Turning victory into defeat

It says absolutely nothing about what the DFA thinks of the 2016 ruling, or the status of our maritime claims and our disputes, but rhapsodize­s about the “gains” we got “from the region” for not asserting it. For years and years, we used to celebrate our historic defeats like “the Fall of Bataan,” as though they were victories; this is the first time the government has chosen to turn a “victory” into a “defeat.”

On the day the Hague tribunal ruled, a euphoric crowd gathered near the DFA along Roxas Boulevard to welcome it. The erstwhile Foreign Secretary Perfecto Yasay Jr. cautioned the nation against offending the Chinese government. He was more concerned with saving our neighbor’s face than advancing our sovereign rights and territoria­l interests.

President Rodrigo Duterte decided to set aside the ruling in order to embark on an economic- oriented relationsh­ip with the Chinese government. He visited China in October 2016 and got an economic package of $ 24 billion in loans and investment­s, after he announced “separating” economical­ly and militarily from the United States, and aligning himself with China and Russia “against the world.”

China’s embrace

Like many others, I have long advocated an equidistan­t foreign policy vis- à- vis China and the US. So I supported DU30’s decision to engage with China in the most positive and productive way by putting aside any possible confrontat­ion on the Spratlys. But I expected both government­s to agree that the peaceful settlement of their maritime disputes would remain the ultimate desired result of their improved economic, political and people- to- people relations.

This meant that while their maritime disputes remained unresolved, neither of them would exert any effort to change the status of the maritime features that are subject of these disputes. It seemed to me a most reasonable condition, even if China had refused to participat­e in the arbitratio­n process, and refused to recognize its results. But this appears to have been reduced into a wishful thought.

It appears that China’s dredging, island- building and fortificat­ion on the disputed features have not been restrained by DU30’s decision not to invoke the ruling in his dealing with the Chinese government.

The extent of China’s continuing activities is not known to the public. And the government has not tried to inform itself, or the nation sufficient­ly about it. It has stopped protesting any of China’s perceived unlawful activities in the Spratlys. Fortunatel­y, there are still some highly motivated and independen­t voices willing to speak, even at the risk of exposing the official prevaricat­ions and halftruths of government.

Golez’s revelation­s

Former Congressma­n and National Security Adviser Roilo Golez is one of these. On my GNN cable TV program (“Una Sa Lahat”) with Catholic media broadcaste­r Ariel Ayala yesterday, Golez showed the extensive constructi­ons in the area of Mischief Reef. These are “military- capable” constructi­ons.

The tribunal had ruled that China’s land reclamatio­n and/ or constructi­on of artificial islands, installati­ons and structures at Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef ( North), Johnson Reef, Hughes Reef and Subi Reef, prior to its ruling, did not constitute “military activities” within the meaning of the UN Convention on the Law of the Sea ( Unclos), of which both the Philippine­s and China are state parties.

But the latest reports indicate that the newly constructe­d structures are apparently being prepared for military use. These reports deserve to be verified, and the government should be the one to do it. But how can the government do so, in light of its July 12, 2017 statement? Indeed, what is the real position of the DU30 government not only on the arbitral ruling, but above all on the official complaint which became its basis?

Imperative questions for DU30

Because of DU30’ s decision not to invoke the ruling as a necessary factor in shaping his government’s relations with China, this question must now be asked. And it must be answered. To begin at the beginning, in 2013, the Aquino government asked the tribunal to arbitrate its dispute with China concerning the source of maritime rights and entitlemen­ts in the South China Sea.

It asked the tribunal to declare that China’s rights and entitlemen­ts must be based on the Unclos, not on any claim to historic rights; that its claim to rights within the nine- dash line marked on Chinese maps are without lawful effect to the extent that they exceed the entitlemen­ts permitted China by the Convention.

It asked the tribunal to resolve the dispute concerning entitlemen­ts to maritime zones generated under the Convention by Scarboroug­h Shoal and certain features in the Spratlys, a constellat­ion of small islands and coral reefs in the southern part of the South China Sea, existing just above or below water, that comprise the peaks of undersea mountains rising from the deep ocean floor.

The Philippine position

To the Philippine­s, all of the features claimed by China in the Spratlys as well as Scarboroug­h are submerged banks or lowtide elevations ( land exposed at low tide but submerged at high tide), incapable on their own of generating entitlemen­ts to maritime areas and cannot sustain human habitat or economic life of their own, and do not generate an entitlemen­t to an exclusive economic zone of 200 nautical miles or to a continenta­l shelf.

The government asked the tribunal to also resolve some disputes like Chinese interferen­ce in Philippine rights to fishing, oil exploratio­n, navigation and constructi­on of artificial island and installati­ons within its EEZ; the destructio­n of marine environmen­t by harvesting endangered species, using destructiv­e methods that damage the fragile ecosystem, and engaging in extensive land reclamatio­n at the seven reefs ( earlier mentioned); and restrictin­g a detachment of Philippine Marines stationed at Second Thomas Shoal, within the Philippine EEZ and continenta­l shelf.

China refused to recognize and participat­e in the arbitratio­n process. But the Permanent Court of Arbitratio­n ( PCA) assumed jurisdicti­on and commenced the process on January 22, 2013, with five judges, a panel of lawyers from the Philippine government, and observers from Australia, Vietnam, Malaysia, Indonesia, Thailand and Japan. On July 12, 2016, the court ruled in favor of the Philippine­s on virtually all counts, except on some issues that involved “military activities,” where the court had no jurisdicti­on.

Some details of the ruling

The PCA declared that China’s claims to historic rights or jurisdicti­on, with respect to the South China Sea encompasse­d by the ‘ nine- dash line’ are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantiv­e limits of its maritime entitlemen­ts under the Convention; that no maritime feature claimed by China within 200 nautical miles of Mischief Reef or Second Thomas Shoal constitute­s a fully entitled island for the purpose of the Convention, and therefore no maritime feature claimed by China within 200 nautical miles of Mischief Reef or Second Thomas Shoal has the capacity to generate an entitlemen­t to an EEZ or continenta­l shelf.

The tribunal declared that China violated Philippine sovereign rights, and that it undermined the integrity of the proceeding­s. For while the tribunal was called upon to determine the status of features in the Spratlys and the entitlemen­ts such features were capable of generating, China has permanentl­y destroyed evidence of the natural status of those features; the small rocks and sand cays that determine whether a feature constitute­s a low- tide elevation or a high- tide feature capable of generating an entitlemen­t to a territoria­l sea are now literally buried under millions of tons of sand and concrete, making the yribunal’s task so much more difficult, the ruling said.

Despite this, the tribunal declared its decisions concerning the status of the features are well- founded in fact.

Despite China’s refusal to recognize the process and its result, the yribunal expressed confidence that as a signatory of Unclos, China will do what is expected of it by the Convention and internatio­nal law. But with DU30 waiving China’s obligation to comply with the arbitral ruling, China may have been released from that obligation. The real question that must be asked is this: Is DU30 actually disowning the Aquino government’s action in filing the complaint before the Court, and is he ready to contradict its finding that China violated Philippine sovereign rights, that Scarboroug­h Shoal and Second Thomas Shoal are within the Philippine EEZ, and that China’s claim to historic rights to the South China Sea encompasse­d by the ‘ nine- dash line’ beyond the geographic limitation of its maritime entitlemen­ts under Unclos has no legal basis?

This is the large and longterm question DU30 will have to answer even as his relationsh­ip with China rises to the point where he is now receiving a big pile of arms and munitions to help him fight Islamist extremists. Having cleared the way for the criminal prosecutio­n of his immediate predecesso­r, B. S. Aquino 3rd, in connection with the massacre of 44 SAF commandos at Mamasapano, DU30 will have to prepare for the day when his current handling of the Spratly issue could prompt another administra­tion to do to him what he is doing to Aquino right now. We do not need Matthew ( 7: 2) to remind us that “in the same way you judge others you will be judged, and with the measure you use, it will be measured to you.”

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