SFA: ‘We owe PNoy’

AS reported by the Manila Bulletin, Foreign Affairs Secretary Teodoro Locsin, Jr. tweeted  on Sunday: “What cements the reefs and waters as ours is the arbitral award won by PNoy, Del Rosario et al. They had no allies; no support from other countries least of all Southeast Asia which tried to sabotage the arbitral award when they saw it coming. We owe it to PNoy et al only.”

This is so patently, incontrovertibly, inarguably wrong. It is shocking coming from the mouth of Duterte’s foreign affairs secretary.

He says we owe the arbitration award to his idol “PNoy.”   But since Duterte has all but thrown the award to the dustbin – “shelved” it, as he euphemistically puts it – isn’t Locsin in effect saying we should condemn this president for doing so? That is exactly the thrust of the Yellows’ campaign to stop his chosen successor from winning the 2022 elections. Duterte’s foreign affairs secretary is spreading the Yellow lies about our territorial disputes in the Spratlys.

If Locsin doesn’t agree with Duterte’s foreign policy, he should have the integrity to resign as foreign affairs secretary. He forgets that he doesn’t make foreign policy; he only implements that of the President.

The arbitral award did not “cement”  the reefs and waters in the Spratlys as “ours” by which I presume Locsin means strengthening our sovereignty over these. If Locsin just cuts down on his Trump-like tweeting habit and takes time to study the arbitration award itself, he will read in its first two pages:

“The Convention.. does not address the sovereignty of States over land territory. Accordingly, this Tribunal does not purport to make any ruling as to which State enjoys sovereignty over any land territory in the South China Sea, in particular with respect to the disputes concerning sovereignty over the Spratly Islands or Scarborough Shoal.”

Sovereignty

”Land”  here includes islands and archipelagos, and the dispute in the South China Sea involves the claims of China, Taiwan and Vietnam that they have sovereignty declared even before the war over the group of islands and reefs internationally called Spratlys (Kalayaan Island Group to us).

The arbitration suit totally ignored, and didn’t even discuss those sovereignty claims. It can’t as no entity can decide on sovereignty claims. It merely affirmed the obvious, which no one, not even China, is contesting: that our exclusive economic zone (EEZ) encompasses the Mischief Reef and Second Thomas Shoal areas as well as the Reed Bank. It didn’t even declare other  areas as within our EEZ. But having the Spratlys encompassed by our  EEZ does not negate China and the two other states’ claims that this island group is their sovereign territory. 

In the case of Scarborough Shoal it didn’t even rule that it is within our territory, but only that it “has been a traditional fishing ground for fishermen of many nationalities.” In the award’s page 318,  it emphasized: “The Tribunal records that this decision is entirely without prejudice to the question of sovereignty over Scarborough Shoal.”

The suit’s stupidity here is the fact that sovereignty  (ownership) surpasses the “sovereign rights” (usufruct) over a particular territory. Parts of our EEZ extend to the territorial seas of Malaysia, Brunei and even Taiwan, but clearly we cannot claim rights over those areas.

Propaganda scheme

A stupidity  but certainly a clever propaganda scheme. Because of their tremendous propaganda machine. the US and  the Yellows exploited the layman’s confusion over these two notions, to portray the utter falsehood that the arbitration ruled that only the Philippines has rights to the Spratlys. Defense Secretary Delfin Lorenzana and his generals’ recent rantings against the Chinese for allegedly intruding into Julian Felipe Reef (Witsun Reef, which is in the Spratlys) which they shout is “ours”  since it is within our EEZ shows the very unfortunate consequence of such confusion.

The Yellows have propagated this lie by citing the arbitration panel’s ruling that China’s nine-dash line claim has no basis under the UN Convention on the Law of the Sea (Unclos). Indeed it doesn’t. But China has never claimed that the nine-dash-line is the basis of their sovereign claims in the South China Sea.

They claim that the Spratlys and the two other island groups there are part of their territory recognized even before the war, and declared through laws and administrative orders after the war. In its responses to the filing of the Philippine suit in 2012 and to the arbitral panel’s decision in 2016, China did not even mention the nine-dash line.

Aquino’s suit set up a straw man, or created a phantom issue, the nine-dash line, and proceeded to cut it down. But that meant absolutely nothing at.

Law expert

As Chris Womersley, an international law expert explained : “The tribunal failed to recognize that the fundamental dispute is about the sovereignty over the features in the South China Sea and not the status of the features, nor their maritime entitlements.”

And Locsin wonders why the Aquino regime “didn’t have allies, no support from other countries least of all Southeast Asia”?  He can’t comprehend the fact that these countries not only had better sense than to file a flawed suit to join us. They were laughing at the Philippines since it made China its enemy, so that the Chinese naturally reduced donations and investments here – and instead extended these to other Asean countries.

Locsin in another tweet, however, seems to realize that the suit resolved nothing, but amazingly still praised it: “Exactly why we won: Our genius GERMAN lawyer said, bring up sovereignty, we lose, thrown out for lack of jurisdiction; with typical German sharpness he said narrow the issues down to features in the abstract and we win an abstract victory which is a victory nonetheless.” [all caps Locsin’s]

Locsin is terribly wrong. He is even wrong in claiming that Paul Reichler, the lead counsel, is German. He is as “German” only as Trump is German. He is American, and one of the partners of the Washington, DC-based Foley Hoag LLP, whose services the US State Department told Aquino to contract despite its astronomical fees.

Maneuver

Locsin, however, surprisingly admits that the suit was really a trick,  a savvy legal maneuver, as it asked the panel not to rule on sovereignty, as this would be thrown out. Rather it was asked and ruled favorably on the Philippines’ maritime entitlements, and Locsin says it was “an abstract victory,” but a “victory nevertheless.” How can sovereignty disputes be resolved in the “abstract”? Only when it is used as the kernel of a propaganda campaign. 

The “abstract” victory owing to  Locsin’s German genius of course hasn’t fooled the world. Except for the US (which is not a signatory to Unclos) and its usual followers of its foreign policy, mainly the UK and Australia, most of the countries of the world have ignored the arbitration ruling.

Locsin shamelessly has fallen head over heels with Reichler, saying in his tweet: “Paul Reichler, An Elegant Mind. We didn’t need the world: we have Reichler. Thank you, sir. And that’s a Francis; a genius.” He even threatens to slap anybody who criticizes his “German genius.”

Locsin is as utterly shameless as he is ignorant of the consequences of the suit undertaken with Reichler as lead counsel.

Frenzy

The suit  provoked China to go on a frenzy of building artificial islands on their seven reefs, a classic move in territorial disputes “to establish facts on the ground.” Reichler asked the panel to rule that the features China occupied were mere “rocks.” China responded by massive reclamation work to turn their reefs into islands. Vietnam of course wasn’t to be left out: It strengthened and expanded the fortifications in many of the 22 features it has occupied,

Perhaps Locsin is right, Reichler is a German in the way Dr. Strangelove of that famous movie on nuclear armaggedon.  The suit provoked the building of China’s artificial islands, raising the ante and risk of war in the Spratlys that not a few analysts predict could break out when a hawkish captain of a US warship tries to approach a Chinese facility, and a similarly hawkish PLA officer orders an attack on it.

Maybe that’s hypothetical. But the suit had very concrete consequences for the Philippines. The arbitration award reduced our islands – even Pag-Asa, the second biggest in the area — into mere rocks, not entitled to an EEZ, which means a loss of at least xx square kilometers of a maritime zone we could have claimed in the future. The arbitral award did not “cement our islands as ours,” as Locsin claims, it degraded  these into mere rocks, with no maritime entitlements.

If we comply with the arbitration panel’s rulings, we lose our Kalayaan Island Group, as Reichler argued – and the arbitral panel agreed — that Unclos repealed Marcos’ 1978 decree which created this new Philippine territory.  Reichler also argued that the KIG doesn’t comply with Unclos provisions on the required land-to-water ratio for an archipelago. That’s  the handiwork of Locsin’s genius.  

PNoy

Locsin must realize he is not the foreign secretary of PNoy who had adopted a belligerent stance towards China, of which the arbitration suit was that regime’s form of warfare. He is the foreign secretary of Duterte, who has adopted a  rapprochement policy with China. Locsin must remind himself that he does make foreign policy but implements that set by the President.

Rather than spending so much time in childish tweets, Locsin should find time to debunk my claims on this issue.  I commit to post Locsin’s  response to may assertions in  my column space or request my editors to publish it in a separate space, hopefully without his trademark smart-alecky and ad hominem remarks.  That’s better than a slapping match with this Chinese kungfu student, I can assure him.

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