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Arbitration made us vulnerable in Ayungin

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WHILE Foreign Secretary Enrique Manalo calls the arbitration suit that the Benigno Aquino 3rd administration brought against China in 2001 “a beacon of light,” it will mostly like be the graveyard candle for our Ayungin Shoal, which we consider to be within our exclusive economic zone but which China claims to be part of its sovereign territory.

Including the Ayungin issue in the arbitration suit β€” that China illegally prevented Philippine vessels from delivering supplies to the Marine detachment at the BRP Sierra Madre grounded there β€” was a big blunder.

It wasn’t among the complaints that the Aquino regime listed in the suit when it was filed in January 2013; it was included only after the 2014 incident when Chinese ships drove away the supply vessels to Ayungin carrying construction materials.

Yes, the tribunal agreed that Ayungin was within the Philippines’ exclusive economic zone (EEZ) as defined by the United Nations Convention on the Law of the Sea (Unclos). However, it was totally silent on China’s claim of sovereignty over it, that it is part of what the Chinese call their “Nansha” archipelago, with Spratlys being its international appellation and Kalayaan Island Group to us.

What it did rule was that the so-called nine-dash line had no basis under Unclos. But nowhere in China’s laws and declarations defining its sovereign territory does it claim that the line is its basis for claiming sovereignty over the Spratlys. The arbitral panel was quite emphatic that its award in no way decided on issues of sovereignty, which are beyond its authority and that of Unclos.

Delimitation

Unclos is a treaty among 157 nations that took effect in 1994 which defines countries’ EEZs and territorial seas (and guidelines for their delimitation for those that overlap). It does not have the authority β€” no body has β€” to rule on the validity of a country’s claims of sovereignty over a particular area.

Our β€˜sentinel’ at Ayungin Shoal, as described in an October 2013 New York Times article β€˜A Game of Shark and Winnow.’ IMAGE CAPTURE FROM NYT.COM

How can the US or its allies assist the Philippines in maintaining its presence in Ayungin when an international tribunal, which the Americans even likely influenced, has ruled that the shoal is the subject of a legitimate territorial dispute?

Ironically, it was one of the late Aquino 3rd’s American lawyers in the arbitration suit, Philippe Sands, who first conceded β€” another stupid blunder β€” during a hearing in November 2015 that the Philippines had already lost the shoal:

“China took de facto control of that feature in May 2013. Chinese marine surveillance vessels, navy warships and fishing administration vessels have surrounded the shoal. They have blocked Philippine vessels, including civilian vessels, from approaching Second Thomas Shoal.” (Transcript of hearing, Day 2, page 158).

The tribunal quoted that statement by Aquino 3rd’s lawyers in its award but threw out their arguments to rule that China was in violation of the Unclos on two grounds.

Tribunal

First, the award declared: “The tribunal has reviewed the record identified by the Philippines and is not able to identify a single documented instance in which Chinese government vessels acted to prevent Filipino fishermen from fishing at either Second Thomas Shoal or Mischief Reef. The tribunal considers that the Philippines has not established that China has prevented Filipino fishermen from fishing at Mischief Reef or Second Thomas Shoal and that, in this respect, the provisions of the convention concerning fisheries are not implicated.” (Award, paragraphs 714 and 715)

Second, and more importantly, the tribunal ruled that Chinese vessels’ actions to prevent Philippine government vessels from resupplying the BRP Sierra Madre in May 2014 were “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…” (Award, paragraph 1160). It ruled that such military situations in a dispute over territory were beyond its jurisdiction as well as that of the Unclos.

This means we cannot invoke Unclos or the arbitral ruling if the Chinese again undertake similar actions, such as using water cannons and their vessels’ maneuvers to drive away our vessels. These actions will certainly be undertaken when China decides to impose a blockade around the BRP Sierra Madre to prevent the delivery of food and water supplies to it, so that our Marines will have no choice but to abandon the decrepit ship.

Sadly, even if the arbitration panel described the Chinese actions as a “quintessentially military situation,” we cannot invoke our 1951 Mutual Defense Treaty with the US. It is categorical in declaring that it will come to our aid only if another country undertakes an “armed attack on our territories or vessels.” Water cannoning and a vessel’s maneuvers to shoo away another are not considered an “armed attack.”

Tomorrow

Since 1999, our foreign affairs officials have just been telling Chinese officials that its grounding was an accident and that it will be towed away “tomorrow.”

Even Aquino’s foreign affairs secretary Albert del Rosario at the 2013 Asean ministerial meeting in Brunei rather stupidly told his counterpart, Chinese foreign minister Wang Yi, that his government just “did not have the money” yet to remove the BRP Sierra Madre, in effect admitting that the Philippines did promise to remove it. The Chinese official told del Rosario that the People’s Liberation Army Navy could do it for the Philippines. Del Rosario was dumbstruck and said nothing.

While that “offer” seemed preposterous at the time, that is not such a remote possibility after President Ferdinand Marcos, Jr.’s statement the other day: “I am not aware of such an agreement [to remove the BRP Sierra Madre]. But if there were, I hereby rescind it as of this moment.”

While that may seem like a bold statement, Marcos in effect said goodbye to the BRP Sierra Madre in Ayungin.

China had allowed the Philippines to resupply the eight Marines there since 1999, or for 22 years, on the justification that President Estrada and his successors promised to remove it. But with the current president himself saying he is rescinding that commitment, the dovish faction of the Chinese leadership no longer has an argument for their conciliatory stance toward the Philippines. The hawks will take action to get its Navy to remove the BRP Sierra Madre from Ayungin Shoal, such as imposing a blockade on our supply vessels in order to starve out our eight Marines stationed and get them to abandon the vessel.

Will the US assist us in such a situation? The Chinese have water-cannoned our vessels that they suspected to be carrying construction and repair materials, and their vessels have maneuvered to shoo away our vessels β€” and my count is that they have done this six times. Did the US assist us? It is sheer delusion to believe the Americans will escort our vessels to supply the BRP Sierra Madre.

Jingoists

Our conduct of foreign policy is a mess, even disastrous. Jingoists like Jinggoy Estrada, National Security Council official Jonathan Malaya and Coast Guard officer Jay Tarriela keep playing to the gallery, the latter even accusing those who do not support his anti-China frenzy as “traitors.”

Why, even Senate President Miguel Zubiri is calling for a boycott of Chinese products, ignorant of the fact that the province that will be hit first will be his Bukidnon home province, a main producer of bananas and pineapples, which China has been the biggest importer of.

Don’t these guys understand that the Chinese will be reading about all this hate, and their government may just decide to ban travel to the Philippines on the grounds that Filipinos are in mass hysteria against China?

When the Chinese blockade the BRP Sierra Madre, will Marcos tell the Marines there, “Do not give up an inch!”

But a joke among the Marines in Sierra Madre, reported in the 2013 New York Times article, is that they will likely be “visiting China without a passport.” The article also quoted one of the Marines as joking: “They could come take this at any time, and everybody knows it.” What would these guys do if that happened? He raised both hands, smiled and said, ‘Surrender.'”

Two jokers

These two jokers who wouldn’t be in the Senate if not for their father’s popularity claim to refute my column reporting that their father β€” or their father’s administration β€” did promise to remove the Sierra Madre from Ayungin Shoal.

In fact, the commitment was made to remove two vessels; the other one was the BRP Benguet, which was also deliberately grounded near Scarborough Shoal as a pathetic marker of our sovereignty. BRP Benguet was removed in April 1999.

Yet Jinggoy Estrada said of my report, “I don’t know where he got his information.” I don’t think Jinggoy even read my article (or any newspaper, for that matter). I presented official documents from then-foreign affairs secretary Albert del Rosario and other DFA officials referring to such promises.

In these memos, they did not claim that the Chinese were lying or that there were no such promises. If there were no such promises, they would have screamed so.

Senile

It is sad that the jingoist Jinggoy has practically described his father as senile, since he claimed Erap “will not remember.” I have more faith in his father’s mental condition than his son. Let your father speak about it.

Why would Erap make that promise to remove the vessel, other than to temporarily stop the Chinese from protesting wildly? Several Cabinet members told Erap that without that promise, and the actual removal of the BRP Benguet from Scarborough Shoal, Premier Zhu Rongji would likely cancel his official trip to Manila, where he was scheduled November 1999 to address an unprecedented meeting of Asean heads of state and their dialogue partners β€” China, Japan and Korea.

Other sources in the Erap Cabinet claimed that he and his foreign secretary, Domingo Siazon, had wanted the latter to be appointed UN Secretary General when the incumbent Kofi Anan ended his term in 2001. Any of the five permanent members of the UN Security Council can veto the appointment of the Security General β€” and making China a friend was therefore a crucial step toward that goal (Anan was given a second term).


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This Post Has 2 Comments

  1. Dorina S. Rojas

    In today’s news, I heard the Erap brothers asked that you rectify your “mistakes” or whatever in this regard. It is very clear also that they had intended, which they did as expected, to blame other administrations for that BRP Sierra Madre fiasco. I wonder why reactions are this late when the issue has been going on for years. It’s curtain time and the actors are already acting up. I hope this is not for entertainment purposes only.

  2. As usual, patriotism is the last resort of scoundrels and colonial-minded doormats who are actually proud to be doormats. The 2 Ejercito brothers are merely parroting 2ndhand testimony from those who were there in the adminstration back then, so how sure are they that they are not being lied to by those former Erap officials trying to cover their a$$es on this issue? Judging from their reaction, resorting to cuss words, ad hominems, redirection, China-bashing, calling everyone who doesn’t side with the US propaganda as “Makapili” and traitors, etc., they seem to have no real defense versus the circumstantial evidence from the DFA other than 2ndhand denials from Mercado.

    Comes now the self-proclaimed geopolitical expert, the corporate lawyer/Vietnamese lover/Supreme Court backstabber & plotter/US propagandist Carpio blabbering in the usual credulous & stenographic lamestream media that Erap should not have ordered the removal of the BRP Benguet from Scarborough Shoal, wow, 23+ years after the fact. Why isn’t he as critical about Amboy del Rosario ordering our Coast Guard ships to leave the shoal in 2013 after being fooled by the Americans that there was an agreement with the Chinese for simultaneous withdrawal? They were the ones who lost Scarborough, not Erap.

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