Category: foreign relations

THE HAGUE MEMORANDUM: Towards a Philippine South China Sea Policy Based on Kadagat Thinking

Sass Rogando Sasot

Part 1: The real problem of Filipino fishermen operating in the South China Sea: dwindling fish stocks

In May 2016, Filipino fishermen were arrested by the Malaysian navy near the waters around Commodore Reef, one of the disputed features in the South China Sea. These fishermen are from Zambales. Why did they go as far as that? The same reason Chinese fishermen can now be found near Indonesia: dwindling fish stocks. Every coastal community in the South China Sea has been overfishing and engaging in destructive fishing practices (see Boom or Bust: The Future of Fish in the South China Sea)

The Global International Waters Assessment (GIWA) has already emphasised this in their 2006 report, Challenges to International Waters – Regional Assessments in a Global Perspective, published by the United Nations Environment Programme. The fishing communities bordering the South China Sea have been engaging in unsustainable practices as their governments “publicly exhort their fishermen to fish disputed waters, which has resulted in a number of conflicts, notably in the waters around the Spratly Islands. Illegal fishing, overfishing, and poaching of rare species are common in the South China Sea region.”

Last year, Rashid Sumaila, director of the Fisheries Economics Research Unit of the University of British Columbia, issued a warning call about the severity of the problem:

“The South China Sea is…under threat from various sources. We need to do something… There are lots of peoples bordering the South China Sea…when you don’t cooperate, everybody races for the fish because the thinking is if you don’t catch the fish, someone else [from another country] will catch it…The most scary thing is the level of decline we have seen over the years. Some species (are facing) technically extinction or depletion.”

The problem of dwindling fish stocks cannot be solved by any international court. It is not a legal problem but an ecological crisis. Its solution depends on the cooperation of the coastal States of the South China Sea – China, Philippines, Vietnam, Malaysia, Brunei, Indonesia.

To insist on dividing the sea is akin to splitting the child in the story of Solomon and the two women. Applying the gist of Solomon’s decision, a more constructive approach to the South China Sea conflict should not start from the self-interests of the states but from the superordinate interest: the best interest of the South China Sea. Realising this superordinate interest is a necessary condition for the competing coastal states and, most specially, their coastal communities, to sustainably enjoy the bounties of the sea in the long run.

Recommendations:

Joint stewardship. The South China Sea is a system and it must be managed as such. Establishing maritime boundaries would be disastrous for the management of the marine environment of the sea. This is because the boundaries of any ecosystem are ecologically rather than politically and economically determined. Consequently, the best option for the competing states is to have an integrated approach to managing the marine environment and resources of the South China Sea. This can only be done if the coastal States would forego their myopic interests based on the notion of sovereignty in favour of the joint stewardship of their common Sea. Shared stewardship acknowledges that individual interests are so intertwined as to defy separation, while territorial sovereignty is all about excluding others. The best interest of our fishermen is intertwined with the best interest of the South China Sea, which demands that we work together with our coastal neighbours to protect it.

Reclaiming tradition. Transcend the notion of territorial sovereignty by recognising that every coastal community in the South China Sea has that sea as their traditional fishing grounds. Thus, no country can exclude another country because tradition dictates that the Sea is a shared resource since time immemorial. And long before Europeans invented the contemporary notion of “freedom of navigation,” our common ancestors had already been practicing it. The concept of owning the sea is preposterous to them; and our quibble about the Sea, stupid and childish. As what Sultan Alauddin said to the Dutch East India Company in 1615: “God created earth and sea. Land was distributed among human yet ocean was given to all. That a journey by the sea is forbidden for certain race is unheard of.

Kadagat thinking. Reframe our relationship with other States bordering the South China Sea. They are not our enemies we must destroy but our kadagat we need to engage. Kadagat is a word I coined. I use it in the same vein as kabayan, belonging to the same land. Kadagat has the sea as its reference point; it means belonging to the same sea. The Philippines and the rest of the coastal States belong to the South China Sea. Together with our kadagat, we are not its owner but its custodian. If there is bayan muna bago sarili, then there is dagat muna bago ang pambansang interes.

Multilateral fishing agreement. Negotiate a multilateral fishing agreement with all our kadagat. The agreement can have provisions on fishing activities regulations, quotas, forbidden practices, and the creation of a supranational body that would implement the agreement. More importantly, the agreement must be based on reciprocity: fishermen from any coastal State can operate in any area of the South China Sea.

Part 2: Are we giving up our territory by transcending the notion of territorial sovereignty in favour of joint stewardship?

We need to finally realise that the Spratly Islands, the meat of our claim in the South China Sea, are not being stolen from us. We have interests over the Spratlys, but that doesn’t make it our territory. We are competing with other countries for ownership rather than retrieving something that belongs to us. To understand this, a survey of the history of the Spratly Islands disputes and the origin of our claim is necessary.

During World War II, the Japanese Empire occupied the Spratly Islands for economic, exploiting it for its guano, and military-strategic reasons. After the war, the Allied powers entered into a peace treaty with Japan, the 1951 San Francisco Treaty. Article 2 (f) of the Treaty states that “Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands.” It didn’t state to whom Japan was renouncing those islands.

During their meeting in Beijing in 1971, Prime Minister Chou En Lai pointed this out to Henry Kissinger, who was then the Assistant to the President for National Security Affairs. Prime Minister Chou wanted to know who drew the treaty because it didn’t specify to whom the Spratly Islands, as well as other islands, belong.

The most plausible reason why the treaty didn’t mention it can be found in the memorandum prepared by Robert A. Fearey of the US State Department Office of Northeast Asian Affairs in response to the questions of the Australian government regarding the treaty. Together with other islands, Fearey said that the title to the Spratly Island “has been disputed between France and China.” Furthermore, Fearey said that Japan’s claim “to this inhabited spot is not believed important enough to warrant mention in the treaty. The negotiations over the peace treaty with Japan wasn’t the proper venue to resolve a territorial dispute.

In 1956, the French protested against the actions of Tomas Cloma, the Filipino who occupied some features in the Spratly’s and thereafter called them “Freedomland,” believing they were terra nullius. On June 10, 1956, the New York Times wrote about this issue. France asserted that the Spratlys belonged to her and that she had not ceded the Spratlys to Vietnam. It’s interesting to note the lack of comment from the Foreign Ministry of the Philippines: no belligerent “the islands are ours” pronouncements, which we often hear now.

During the 50’s, the Sino-Soviet alliance brought the Cold War to Asia. This alliance collapsed into a crisis in the 1960s. Fearing Soviet expansionism, China formed a de facto alliance with the US. Meanwhile, Vietnam “invited the Soviet navy…to take over the former French, Japanese, and US facilities in Cam Ranh Bay.” China took advantage of its rapprochement with the US and expanded its naval presence in the South China Sea. In the 70’s after China gained full control of the Paracels, the unified Vietnam retaliated by occupying more islands in the Spratlys. This is the reason why Vietnam dominates the Spratlys. They currently occupy 23 features – almost equivalent to the combined occupied features by the Philippines (9), China + Taiwan (8), and Malaysia (7). Arguably, the aid flowing from the Soviet Union made this dominance possible.

In the 1970s, President Ferdinand Marcos appropriated Tomas Cloma’s claims. On January 23, 1973, Philippine Foreign Affairs secretary Carlos Romulo sent an aide memoire to the US Ambassador to the Philippines regarding the Spratly Islands. The aide memoire was based on the statement President Marcos delivered in a press conference on July 10,1971. Paragraph 5 is one of the striking features of this aide memoire, it reads:

IN 1957, WE AFFIRMED THAT THE SPRATLEY ISLAND GROUP FALLS UNDER THE DE FACTO TRUSTEESHIP OF THE ALLIED POWERS BY VIRTUE OF THE JAPANESE PEACE TREATY SIGNED AND CONCLUDED IN SAN FRANCISCO ON SEPTEMBER 8, 1951, WHEREBY JAPAN RENOUNCED ALL HER RIGHTS, TITLE AND CLAIM TO THESE ISLANDS. BY VIRTUE OF THAT TRUSTEESHIP NO ONE MAY INTRODUCE TROOPS ON ANY OF THESE ISLANDS WITHOUT THE PERMISSION AND CONSENT OF THE ALLIED POWERS. OUR POSITION ON THIS MATTER REMAINS FIRM.

Yet despite having this position, the Philippines built the Rancudo Airfield in Thitu Island (Pagasa) in 1975, without the permission and consent of the allied powers of which China was a member. A clear violation of the “agreement” the Philippines was referring to. The Philippines is actually the first claimant to ever build an airstrip. Vietnam followed suit; then Malaysia. China is a latecomer.

It wasn’t the lofty goal of patriotism but the prospect for profit that motivated Marcos Sr to be aggressive in staking a claim over these islands. Oil concessions in these areas – specially the oil rich Reed Bank – were awarded by the government. And “several leading Manila entrepreneurs, including Marcos’ friend and in-law Herminio Disini, have invested in the oil exploration” conducted with the Swedish and Americans (14 March 1978,Washington Post).

In a 1976 US diplomatic cable, William Healy Sullivan, US Ambassador to the Philippines, also highlighted the oil interests of the Philippines. Despite the competing claims other countries, Ambassador Sullivan said

“Philippines has steadily increased its interest in [the] islands….it has kept oil exploration under active consideration and a Philippine-Swedish joint venture is in process of working out service contract to commence operations in Reed Bank Area. In addition, it has placed military forces on islands and built some permanent structures.”

During the negotiations of US bases in the Philippines in the 70s, President Marcos threatened to “not authorize a Romulo/Kissinger meeting until first receiving [an] answer to the Philippines aide memoire concerning applicability of the [1956 Mutual Defense treaty] to the Spratley Island and Reed Bank areas.” Marcos used the Spratly and Reed Bank areas as a bargaining chip. The Americans remained neutral on the territorial disputes and considered them outside the terms of the treaty. Nonetheless, the Philippines was still able to expand and strengthen its foothold on the islands “with the help of American-made arms” (14 March 1978, Washington Post).

Besides the prospect for oil, another factor that intensified the power struggle over the islands was the UN Convention on the Laws of the Seas (UNCLOS). The EEZ concept embedded in the Convention added a new layer to the conflict; it gave the conflicting states a new set of fangs.

The UNCLOS was adopted in 1982 and entered into force in 1994. Within that time period, a number of actions were taken by the littoral states which aimed at supporting their claims or weakening those of their adversaries. These included “the deployment of military troops to additional features in the Spratly area, the enactment of domestic maritime legislation, and the signing of contracts with foreign companies to explore and exploit hydrocarbons.” Eventually, this intensified scramble for the South China Sea islands lead to the March 1988 naval battle between China and Vietnam after the former “established a physical presence there in the previous year” (Song and Tønnesson, The Impact of the Law of the Sea Convention on Conflict and Conflict Management in the South China Sea).

Perhaps fearing that the Sino-Vietnamese naval clash would be a prelude to a division of the features of the SCS only among these two after the dust settled, other claimants became more assertive about their claims. They beefed up their military presence in their occupied features, leading to a series of violent clashes, pitting the Philippines against Taiwan, and the Philippines against Malaysia.

Just like in the 70s, one the major driving forces of the aggressive claim of the Philippines over these islands are the interests of the oligarchs. This time the key oligarch is Manuel V. Pangilinan, the chairman of Philex Petroleum Corporation, the company that won a contract to explore for oil in the Reed Bank.

Then foreign affairs secretary, Albert del Rosario was profiled by Inquirer as a “longtime business ally of tycoon Manuel Pangilinan, as evidenced by his directorships in the Philippine Long Distance Telephone Co. (PLDT), BusinessWorld Publishing Corp., First Pacific Co. (Hong Kong), PT Indofood Sukses Makmur (Indonesia), Metro Pacific Investments Corp., Philex Mining Corp., Metro Pacific Tollways Development Corp. (MPTDC), Manila North Tollways Corp. (MNTC) and ABC Development Corp. (ABC 5)—all Pangilinan-controlled firms.”

In 2012, during the renewed tensions in the South China Sea,del Rosario “sort of encourage Pangilinan” to go to talk with the China National Offshore Oil Corp. (CNOOC) officials.

According to Rappler “Pangilinan had admitted meeting with CNOOC officials in China…Malacañang, including the Department of Energy, was aware of it. At the time, this meeting was being considered as efforts to address the territorial dispute through a possible commercial deal.” But why would del Rosario send someone who obviously has a conflict of interest?

From its inception, the Spratly claim of the Philippines is intimately linked with the aspirations of oligarchs. Our sense of nationalism has been mobilised by the oligarchs and their backers in the position of power in order to advance their own interests. We have to overhaul our Spratly policy and make it more responsive to the needs of our people.

Recommendations:

Keep the oligarchs out of it. Philippine oligarchs should no longer be allowed to direct our Spratly Islands policy. Don’t turn the Spratlys into an Iraq.

Joint development of offshore oil and gas. The Philippine government doesn’t have much capability in exploiting the offshore oil and gas reserves in this area. Thus, it should enter into an agreement with China (or with any other claimants) similar to the 1958 Bahrain-Saudi Arabia Boundary Agreement: Saudi Arabia exploits the oil resources and grants Bahrain one half of the net revenues. The government can then invest this on the needs of our people.

Joint tourism ventures. The Philippines should urge other claimants to convert some areas of the Spratlys as marine parks, which will be jointly managed by countries that have presence in the archipelago. Revenues from this venture can be used to fund conservation projects in the South China Sea.

Establish a multilateral South China Sea Anti-Piracy Force. Our enemy is not our kadagat but the rising incidents of piracy in this region. It’s expected to rise as Asian economies continue to grow. The military installations in the Spratly Archipelago should be converted into anti-piracy outposts, manned by an inter-coastal force that can also conduct search/rescue operations.

special envoy to china

MANILA – Foreign Affairs Secretary Perfecto Yasay Jr. on Monday emphasized the need for a special envoy in China amid the controversies surrounding the maritime disputes in the South China Sea.

very important decision.  how about chito sta. romana — “It is up to us to defend our national interest …  the Chinese … do not want to be portrayed as an international outlaw.”  or jaime florcruz — “I tend to look at China as a glass half full rather than half empty because I’ve seen it virtually empty.”

from luneta to china

In his first public response to the sanctions, Mr. Aquino said he had no plans to apologize, saying that doing so could create a legal liability and noting that China had not paid compensation to the families of Filipinos who have died in episodes there.

“legal liability…” googled it and, yes, it would seem that apologizing would / could mean admission of guilt, which could be used against the apologizer should the hostaged hongkong survivors and victims’ families take the ph government to court for redress.

hmm.  kaya pala ayaw mag-apologize ng presidente.  in a court of law, baka maobligang magbayad ng just compensation at maparusahan ang mga nagkasala.  but in the court of public opinion, lusot na lusot, especially now, given filipino disgust at china’s aggressive moves on philippine terrritory.  in comment threads on mainstream news and social media sites, parang mas maraming aprub kaysa di-aprub sa pagmamatigas ni aquino, kesyo, tama, wag magpa-bully sa hong kong/china, kesyo it’s a matter of national pride, apologizing would be a sign of weakness.

but, really, it doesn’t mean that we, who believe the president should apologize, are wrong.  what’s wrong is to think that the two occasions in beijing when filipino tourists were killed are comparable to the almost 10 hours hostaging and eventual killing of 8 and wounding of 7 hong kong tourists in luneta.  alex magno is right:

The first incident involved an accidental death caused by a wayward vehicle. The second incident involved the killing of two Filipinos by a seriously deranged man (subsequently executed for the crimes).

Neither involved acts of official neglect or incompetence. They cannot be compared to the official failings during the Luneta incident, which our own fact-finding committee established. That committee’s recommendation for charges to be filed against former Manila mayor Alfredo Lim and others have been blissfully ignored by Malacanang.

as far as the aquino admin is concerned, it has already done daw its utmost best to address the issue.  this was the official reaction of the DFA sec to news that govt officials will now have to obtain visas to travel to hong kong:

“The sanction is unfortunate because a substantive closure on the Quirino Grandstand incident has been arrived at three years ago with the previous Hong Kong SAR government and the victims as well as their families,” DFA spokesperson and Assistant Secretary Raul Hernandez said in a statement he read to reporters.

Hernandez said that a renewed appeal for compassion was made to the government in October 2013 and it responded by offering “additional tokens of solidarity” that were pledged by Filipinos “at the behest of the Philippine government.”

“These amounts that are being offered are substantially more than those that have been previously accepted by the victims and their families. We have been made to understand that the victims and their families have agreed to this offer,” he said.

But Hernandez said the Hong Kong SAR government responded by opening a “total renegotiation’ to seek a demand for an apology over the deaths of its citizens. He said the Philippines, as a sovereign nation, “is not prepared to consider” this demand.

“Our nation has already expressed its deepest regret and condolences over the incident and we are preparing to reiterate this,” Hernandez said.

He said the government “remains committed to manifest compassion for the victims and their families and is ready to turn over the additional tokens of solidarity from the Filipino people … as soon as possible.”

“We would like to assure the Filipino people that the Philippine government has done its utmost best to address the Quirino Grandstand issue,” Hernandez said.

what intrigues me is that i can’t find any source specifying exactly how much the hong kong victims are asking for and exactly how much the philippine government and/or its supporters have paid or offer to pay.  the only figure i get from googling is the 120M that erap was offering to raise, and i have no idea if that’s anywhere close to what is just compensation.

surely we can find the money for this.  if we can find the money to keep the patronage system alive by awarding senators and congressmen millions (billions?) in pork barrel funds and in generous salaries and allowances and bonuses every year, surely we can find the money to do right by the victims.  it is the honorable thing to do.

or is it that the bigger problem is that the prez cannot abide the idea of disgracing his incompetent subordinates because kabarkada, or political ally since cory times?  or basta, hindi lang sanay mag-sorry pag nagkamali?  o hindi lang sanay umamin pag nagkamali?

whatever, i can’t help wondering, what if the president had apologized right away?  would china be a little less offensive over in the west philippine sea?  maybe not.  china seems to be preparing to just take it over, “china sea” or bust, and seems to be testing limits all around.

interestingly, aquino’s hitler jibe could not have come at a better time, almost synchronous with america finally speaking out and criticizing china’s maritime claims, while talks on “temporary” facilities promise to continue, and u.s. warships arrive in manila and cebu ports, and who knows where else, soon after.

parang coordinated.  and i suppose it makes sense.  the hitler analogy may be flawed, but like peter beinart of the atlantic says,  it at least recognizes the magnitude of the stakes. 

apologize

the killing of the taiwanese fisherman by the philippine coast guard and the president’s refusal to apologize brings to mind the august 23 2010 luneta bloodbath that claimed the lives of 8 hong kong chinese.  the president also refused to apologize then.  a year later, the  survivors and the families of the 8 who died came to manila to commemorate the deaths of their loved ones with a buddhist ritual at the scene of the crimes, and again, still, the president refused to meet with them.  i blogged about it then, and reading it now, remember how offended i was for the hong kong chinese, and now that the president is adamant, all over again, in his refusal to personally formally apologize to the taiwanese, i can’t help wondering if this is a personality problem of sorts.  a hang-up that has to do with the killing of his dad in ’83?  maybe no one apologized to the family for that?  okay, maybe it’s a stretch.  maybe it’s just that the taiwanese demand for a formal apology is part of a package that includes paying compensation to the family of the victim and bringing the perpetrators to justice.  the very same demands made by the hong kong chinese, a formal apology, reparations not just to the families of the victims who died but also to the victims who survived but are scarred for life, and appropriate punishment of the government authorities whose gross negligence caused the bloodbath.  certainly, acceding to the taiwanese would mean finally acceding to the hong kong chinese, or else.

read teddy locsin’s What is to be done with Taiwan, alex magno’s Assymetrical, and a luneta survivor’s horrifying tale posted by raissa robles.