Category: hague memorandum

the china challenge

How China’s military play in disputed waters could torpedo Rodrigo Duterte’s foreign policy shift  Richard Heydarian writes that the fate of the Philippine president’s post-America foreign policy likely is to be decided by what happens in the contested South China Sea

On SCS: Let us help our President  Former Secretary of Foreign Affairs (2011-2016) Albert del Rosario humbly suggests that we all ask him to be more proactive and assertive in defending our territory

West Philippine Sea / Part 2 – Search for Options Centrist Democrat Lito Monico Lorenzana endorses the five-point approach of Associate Justice Antonio Carpio  

1. “File a strong formal protest against China’s building activity. This is the least that the President can do. This is what the Vietnamese did recently when China sent cruise tours to the disputed Paracels.

2. “Send the Philippine Navy to patrol Scarborough Shoal. If the Chinese attack Philippine navy vessels, then the President can invoke the Philippine-US Mutual Defense Treaty, which covers any armed attack on Philippine navy vessels operating in the South China Sea.

3. “Ask the United States to declare that Scarborough Shoal is part of Philippine territory for purposes of the Mutual Defense Treaty since the shoal has been part of Philippine territory even during the American colonial period. The US has declared the Senkakus as part of Japanese territory for purposes of the US-Japan mutual defense treaty.

4. “Accept the standing US offer to hold joint naval patrols in the South China Sea, which includes Scarborough Shoal. This will demonstrate joint Philippine and US determination to prevent China from building on Scarborough Shoal.

5. “Avoid any act, statement or declaration that expressly or impliedly waives Philippine sovereignty to any Philippine territory in the West Philippine Sea. This will preserve for future generations of Filipinos their national patrimony in the West Philippine Sea.” [Rappler, March 20 ,2017]

The first point could be tweaked, like what Vietnam did, to signal the Chinese that we are opting “…for a policy of cooperation… we all look forward to a ‘Code of Conduct’ to guide the various nations on the South China Sea (SCS). Vietnam’s statement was made in the form of a request to China, appealing to its sense of responsibility as a large country. It was just an expression of concern over militarization activities which are supposed to be avoided in the proposed Code of Conduct.”

“Sometime ago President Duterte said that before his term ends in 2022 – four years from now – he will have to assert the Philippine victory in the Permanent Court of Arbitration (PCA) in The Hague in 2016”. [Manila Bulletin, May 16, 2018]

But why wait four years? This is simply passing the ball to the next administration and postpone the pain and responsibility. Some quarters, even among the ranks of Duterte allies, see this as downplaying our victory in exchange for economic benefits from China. Laying aside our sovereignty may not exactly be rape. But for lucre, we might as well call it for what it is. An apt word perhaps would be prostitution.

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.