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Arbitral ruling a colossal deception: It damaged our national interests

THAT the country won in the ruling of an arbitral panel in our suit against China over our disputes in the South China Sea region has been a colossal deception foisted on our people.

As a fabrication, it is rivaled only by the huge lie in the first years of the Yellow regime of Aquino 3rd, that since he is the son of the “saint of democracy,” he would create a graft-free and progressive nation.

If President Duterte had pursued the arbitral ruling, it would have been the very worst impact on our nation of the Aquino regime, even triggering an economic crisis.

The ruling by the five-man arbitral panel succeeded in being believed as a victory for us because the might of US media was mobilized to spread that lie, and the propaganda exploited anti-Chinese sentiment in the Filipino psyche.

US media was marshaled because the ruling served US interests in its “Pivot to Asia” policy of containing China. First, it demonized China as an aggressor in the South China Sea, that it ignores international law.

Second, the arbitration tribunal ruled that China’s so-called nine-dash line that marks its claim over much of the South China Sea has no basis under the United Nations Convention of the Law of the Sea (Unclos). This gives US warships undertaking their power-project patrols in the South China Sea arguable legal cover that they are sailing through international waters.

What people like the pro-American former Foreign Affairs secretary Albert del Rosario and the apparently pro-Vietnam Supreme Court Justice Antonio Carpio are ignorant about, or pretend to be ignorant about, is that China’s claims are not based on this nine-dash line, nor on exclusive economic zones (EEZs) under Unclos, which took effect only in 1995.

Historic rights
Forget China’s claims over “ancient historic rights” in the South China Sea, almost always cited by Chinese authorities, and against which Carpio deployed scores of maps in his attempt to debunk it. Fast-forward instead to the modern era.

China registered its claims over Spratlys (and the Paracels) officially — i.e., as a sovereign nation telling the world — in the 1930s. It then formally declared it first in its 1947 map issued by the Ministry of Internal Affairs and in the 1958 “Declaration on China’s Territorial Sea,” without any reference to a nine-dash line as the basis for its sovereign claims. Vietnam claims that the 18th century Nguyen dynasty had sovereignty over it, that colonial France annexed these areas, that the Japanese wrenched it from the French during the war, and that finally France turned it over to Vietnam when it surrendered its colonial hold in 1954.

On what basis did the two countries do this? By declaring the Spratlys as an archipelago (or regime of islands) that is their sovereign territory, called Nánshā Qúndǎo by the Chinese and Quần đảo Trường Sa by the Vietnamese. Baseless?

We did exactly that decades after China and Vietnam did, when Marcos declared a hexagonal area covering much of those islands as the Kalayaan Island Group (KIG) in 1978. The ruling on the nine-dash line therefore is useless for our national interests. Worse, other rulings of the arbitral panel damaged our national interests.

First, it ruled — agreeing with the Aquino-del Rosario tandem’s US lawyers’ plea — that our Pag-asa, Likas and five other islands in the KIG are not islands but rocks, which therefore do not have an EEZ. For Pag-asa we lost 430,000 square kilometers of EEZ. Why the US lawyers stupidly did this was detailed in my column last Monday, “Aquino-del Rosario betrayed our national interest in arbitration suit vs China.” The lawyers sacrificed our legal basis for our KIG, claiming that the 1978 Marcos decree that established the territory was repealed by Unclos, since it is an international law (transcript of hearings).

Second, the country’s loss of Scarborough Shoal in 2012 to the Chinese, because of Aquino’s bungling, was formalized. Aquino-del Rosario shot themselves in the foot: They had claimed in 2012 that the arbitration suit was filed in order to recover what we call Bajo de Masinloc, as part of Philippine territory. Actually, the arbitration suit was filed to cover up for Aquino-del Rosario’s stupidity in losing Bajo de Masinloc.

The tribunal ruled that it has no jurisdiction on this Philippine claim, as that is not an issue of maritime entitlements under Unclos, but of sovereignty over an island. The tribunal merely admonished that China must allow Filipino fishermen to “engage in traditional fishing at Scarborough Shoal.” It emphasized though: “The Tribunal records that this decision is entirely without prejudice to the question of sovereignty over Scarborough Shoal” (page 318 of the tribunal’s award).

But that admonition to China not to bar Filipino fishermen in the shoal implies recognition of China’s control of Scarborough. Before the stand-off in 2012, we controlled Scarborough. In fact the stand-off broke out because we claimed Chinese fishermen had captured endangered species in the area, and were being arrested. China claimed that it was us who denied their fishermen their traditional fishing rights.

Third, the worst ruling for us probably is this: the Tribunal made us vulnerable to Chinese or Vietnamese military operations for China to control the Spratlys, which their laws have declared is part of their sovereign territory.

The Aquino-del Rosario lawyers had asked the tribunal to rule as illegal Chinese government vessels’ attempts in May 2013 to block Philippine vessels from providing supplies to our 12-man marine detachment in Second Thomas (Ayungin) Shoal living in the BRP Sierra Madre wreck. The vessel was deliberately grounded there by our navy in a pathetic attempt to establish physical control of what the Philippines claimed was part of its KIG. China had insisted it was part of its Nánshā Qúndǎo and that the Philippines had promised to remove the wreck several years back.

What shocked the Aquino-del Rosario out of their wits was the tribunal’s ruling:

“In the Tribunal’s view, this represents a quintessentially military situation, involving the military forces of one side and a combination of military and paramilitary forces on the other, arrayed in opposition to one another… Accordingly, the Tribunal finds that it lacks jurisdiction to consider the Philippines’ Submissions No. 14(a) to (c). (page 473 of Award).”

The implication of this ruling is devastating to us. It means that any Chinese (or Vietnamese) attempt to use some kind of force — such as a blockade of, say, our Pag-asa Island to starve our contingent there — falls outside the jurisdiction of Unclos. Can we ask the US to intervene? Well, Aquino and del Rosario did during the Scarborough stand-off in 2012: then-President Obama outrightly refused to even have US ships escort our fisheries bureau’s vessel and our fishermen’s boats into the shoal.

If President Duterte had pursued Aquino’s belligerent stance against China, we would have lost all of our KIG through some military or paramilitary maneuvers by Chinese forces, emboldened by the tribunal ruling that such moves were outside its jurisdiction; and the Scarborough stand-off proved the US will not lift a finger to help us.

That is the disaster Duterte steered us away from.

What at the outset seemed to be a favorable ruling for us was the tribunal’s decision that Mischief Reef, Subi Reef, Gaven (South) Reef, and Hughes Reef — all occupied by China — are low-tide elevations and therefore cannot be appropriated as sovereign territory by China or any other nation — under Unclos provisions.

But this is the most controversial aspect of the ruling. This is based on Unclos, which took effect in 1995, which is in conflict to sovereign claims made before Unclos, as in the case of China’s, Vietnam’s and our claims (made in 1978) over the Spratlys as a “regime of islands.” If this ruling is internationally accepted, Japan and the US would lose their sovereignty over, or the EEZs around, several of their tiny rocks, Okinotorishma in the case of the former and the Pacific atolls in the case of the latter.

Worse, in defiance of the Philippines’ suit and in anticipation of its probable outcome, China went on a frenzy of building huge artificial islands on all of the features — all reefs and shoals — it controls in the Spratlys as soon as we filed our case against it in January 2013. As a result, China’s land area in the Spratlys, now totaling 600 hectares, dwarfs the 47 hectares of Vietnam, which had been the biggest landowner in the area.

Yes, the three reefs on which China built its artificial islands are within the Philippine EEZ, and the tribunal said the Chinese should have asked permission first from Filipino authorities to do this.

However, China claims that this is not about EEZs. The reefs, and the entire Spratlys, are within its territory, a regime of islands it calls the Nansha. The tribunal cleverly said not a word on this Chinese territorial claim, but pontificated on the Philippines’ EEZ covering part of the Spratlys.

But in the realpolitik world of geopolitics, all these are really mere academic debates. China’s artificial islands are a fait accompli, done under the cover of defending its national interests — in a defiant mode to the Philippine suit. Any attempt to kick China out of these huge islands would mean a nuclear war, which will undoubtedly be supported by the 1.4 billion Chinese, told since grade school about the nation’s ‘century of humiliation” by Western powers invading its lands.

President Duterte will be giving up absolutely nothing if he agrees to shelve the arbitral ruling in exchange for an oil or gas deal with China. He will really be giving up an arbitral ruling that damaged our national interest. I just hope all its rulings that damaged our national interest can be legally reversed.

What a colossal mess Aquino and his pro-American, bungling foreign secretary del Rosario had caused to our nation.




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