IF President Duterte has foreign affairs and defense department secretaries who demonstrate astonishing nescience over a very important matter as the Philippines vs China arbitration, he should be very worried.

If the two officials echo almost verbatim the belligerent statements against China exploiting the arbitration award of Kelly Kraft, the United States ambassador to the United Nations, last June 1, and the more recent one of  Secretary of State Michael Pompeo — which are really just part of  President Trump’s recent attempts at distracting his nation from his catastrophic failure  to deal with the coronavirus pandemic — he should be very concerned.

It is humiliating for us Filipinos that our foreign affairs and defense secretaries are issuing statements against China in chorus with the US Secretary of State, issued on the same day, continuing the same propaganda line. I thought we had become independent of the US, with Duterte even emphasizing this with his rapprochement with China.

If the two through their declarations are in effect reversing the foreign policy that Duterte had set in 2016 to shelve the Yellow regime’s reckless arbitration suit, engineered by the US, they are no longer his alter egos, and should be fired.

Surprising most observers, Foreign Affairs Secretary Teodoro Locsin Jr. and Defense Secretary Delfin Lorenzana on July 12 issued almost exactly similar statements lambasting China, demanding it, as Lorenzana put it, “to comply with the Permanent Court of Arbitration ruling.”  While Locsin did not refer to the “PCA,” he also mistakenly saw the arbitration panel as a court when he claimed that the “award is a milestone in the corpus of international law.”

Lorenzana and Locsin are shockingly misinformed. I thought that after four years past the Yellow administration, and with Duterte — even if only on a pragmatic basis — junking his predecessors’ anti-China policy, the truth about the arbitration case would have been crystal clear by this time, which has two main features.

Pivot to Asia

First, it was part of the Obama administration’s “Pivot to Asia” policy, which had as one component the demonization of China as an evil empire grabbing islands in the South China Sea.

And second, as I will discuss in detail on Monday, then-President Benigno Aquino 3rd and his Foreign secretary Albert del Rosario  foolishly thought that the suit  would force China to allow a firm of the Indonesian-owned First Pacific Co. to explore and develop for oil and gas in the Reed Bank which both the Philippines and China claim, and  which the latter bans other claimants from exploring without its permission. It doesn’t’ seem coincidental that it was del Rosario, a director of First Pacific for decades, who had pushed for the suit, then and to this day.

While the Philippines has the right to pursue it sovereign rights in its exclusive economic zone (EEZ), especially if this could extract oil and gas in the Reed Bank, the First Pacific project was so reckless: It ignored China’s earlier warnings , and pushed it to the corner to drive out of the area the Indonesian firm’s survey vessel MV Veritas Voyager in March 2011. That was the start of the Aquino’s belligerent stance against China that led eventually to its suit against the superpower.

What Aquino, del Rosario and now Locsin called a “victory for the Philippines” was a huge deception of nauseating scale. That the deception continues is a testament to the power of US media and their minions here.

The award was not a ruling by The Hague-based PCA. The PCA simply acted as a registrar (the depository of documents), offices and secretarial staff for the arbitration panel. It provided the theatrics with its impressive cathedral-like hall where the hearings were held.

That there is a note at the top of the page “PCA Case No. 2013-19” is only because of its function as a registrar. Lorenzana and Locsin obviously were too intellectually lazy to find out why it was titled such.

Arbitral tribunal

The body that heard the suit and issued the award was, as the title page of the actual document on it puts it: “An Arbitral Tribunal constituted under Annex VII to the 1982 United Nations Convention of the Law of the Sea.” (Annex VII details the procedures for arbitration.) The word “tribunal” is used here in its sense of a panel handling disputes, and not in its second meaning of a “court of justice.”*

To help Locsin and Lorenzana understand this: You and your neighbor are quarreling over ownership of a vacant lot. Instead of going to a court though, you just agree to an out-of-court arbitration and ask some respected person to appoint the members of the panel.

Arbitration is, by definition, mostly voluntary. What shocked the international legal community was that the Philippines invoked a very technical provision of UN Convention of the Law of the Sea (Unclos), by which the panel justified its hearings and award even if China refused to participate in the arbitration.

But why have the US, the Yellows, and now even Lorenzana and Locsin kept saying that it is a “PCA decision”? It is not simply semantics. The term has powerful propaganda use.

A “court” connotes a body that rules on what is the applicable law on a particular issue, which fits into the messaging of the US and the previous regime — and swallowed hook, line, and sinker by Duterte’s two department secretaries — that China is defying the international rule of law.

Locsin pontificated in his statement: “The award is non-negotiable.” How can an arbitration award not be negotiable, if it is between two parties? The award ruled, as will be discussed in more detail below, that our Pag-asa Island is not an island, but just a “rock.” That is non-negotiable?

Entitlements

Locsin pointed out: “The arbitration award conclusively settled the issue of historic rights and maritime entitlements in the South China Sea and is a milestone in the corpus of international law.”

How in the world can an arbitration set precedents in international law?  As an Oxford University professor recently pointed out in his article on the award: “Judicial and arbitral decisions are not binding on other parties in future cases, even before the same court or tribunal. No other court or tribunal, be it the ICJ, the International Tribunal for the Law of the Sea or another Annex VII arbitral tribunal, is bound to follow the arbitral tribunal in the South China Sea arbitration in its interpretation and application of the Unclos.”**

Lorenzana says that “the international community” demands that China comply with the arbitration award. He is so totally misinformed. Locsin echoes this when he said the arbitration is a victory for “the international community.” If it is, the world has ignored it.

The fact is that only seven countries — the US which is not a signatory to the Unclos, Vietnam which has become China’s arch-enemy in Asia, and four other countries that have always been the American puppets in dealing with the world — are demanding that China comply with the award.

Seven countries oppose the award, which include Russia and Taiwan. Thirty-three countries — including the European Union — “acknowledge the ruling but do not call for compliance,” while 147 countries have simply ignored it.  This is according to the Asian Maritime Transparency Institute, a think-tank/propaganda platform the Washington-based Center for Strategic and International Studies set up to disseminate US views on the South China disputes.

Maritime zones

Locsin happily states: “The tribunal conclusively ruled that none of the features in the Spratly Islands is capable of generating extended maritime zones.” This is almost hilarious for our foreign secretary to say, if one reads the arbitration award.

Our Kalayaan island group, which Marcos annexed in 1978 and made a municipality of Palawan, is part of the Spratly Islands. Locsin apparently is ignorant of this or he would not dare mention that part of the award, which prompted international-law academics to remark that if the if we really won the suit, it was a pyrrhic victory.

We have the greatest number of islands in the Spratlys, including the second biggest, Pag-asa Island. Marcos beat the others in grabbing the Spratlys, as had his marines occupy eight of the biggest islands from 1970 to 1974, leaving China to seize only seven reefs in 1988 and Vietnam the smaller islands and numerous shoals.

The ruling means we can no longer call our Kalayaan Island Group as such. If we comply with the arbitral ruling, we have to rename it as “Kalayaan Group of Rocks” and our Isla ng Pag-Asa as Bato ng Pag-Asa.

Taiwan occupies the biggest island Taiping; Vietnam occupies five; and Malaysia, one. Will the award’s ruling on this apply to them?

An arbitration

No, since it was an arbitration, involving only two parties, the Philippines and China. But China did not agree to participate in the arbitration. Only the Philippines is required to degrade its islands in the Spratlys into “rocks.” And former foreign secretary Albert del Rosario insists we bring the case to the UN for implementation?

More than the nomenclature though, we lost huge areas of the South China because of this particular provision of the award. For example, we could have declared an EEZ around our Pag-asa island (as well as our other seven islands) that would encompass 431,000 square kilometers, which is four times Luzon’s area. We could have claimed this as the exclusive area for our fishermen, and more importantly, for our firms to explore and develop for oil and gas. The arbitration award ruled that we cannot do that: Pag-Asa is not an island and hence can claim only a tiny 12-nautical mile territorial sea around it.

The US’ hypocrisy of course is that while it demands that China to comply with the arbitration, it is silent on the fact that it has declared EEZ around features in the Pacific that are much smaller than Pag-asa island, such Howland Island, Baker Island and Kingman Reef. Japan has an EEZ it vigorously defends around its Okinotorishima, which is the size of a bedroom. Nearly all Western powers in fact have declared EEZs on their islands which the arbitration declares as mere rocks.

What Pompeo, Locsin and Lorenzana are ecstatic about over the award is that it ruled that China’s nine-dash line in the South China Sea has no basis in international law.

They are of course correct on this point. But the Chinese must be laughing: Their claim of sovereignty over the Spratlys, the Paracels, Pratas and Macclesfield Bank area (which includes Scarborough Shoal) are not based on that line drawn in 1947 on a Chinese map by a low-ranking bureaucrat of the communists’ enemy, the Kuomintang.

It is based on certain agreements, one of which is the Cairo Declaration of November 1943, signed by China, the US, and the UK that declared that  those islands which Japan had seized during World War 2 be returned to China. Vietnam disputes this, claiming that these were stolen not from China but from France, when it was the colonial power in Vietnam, which now claims that it is the rational heir to such territories.

The Philippine claim to the Spratlys is based on the 1978 Marcos decree, which could now be justified now as sovereignty based on a long period of effective occupation. A weaker claim is that a main part of Kalayaan is within   our exclusive economic zone, defined in 2009.

More on this, and on the ambitious venture of First Pacific to become a major oil producer that dragged us into a conflict with China during the Yellow era on Monday.

Indeed, so true in this dispute with China is Samuel Johnson’s aphorism, “Patriotism is the last refuge of scoundrels.”

*See my column July 17, 2018, “Fake news: No such PCA decision.”
** Stefan Salmon, “The South China Sea Arbitration and the Finality of ‘Final’ Awards,” Journal of International Dispute Settlement, Volume 8, Issue 2, May 2017.

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