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2016 arbitral ruling supports China’s Ayungin actions

Last of 2 parts

The Philippine military’s ignorant spokesmen’s, as well as the envoys of America’s vassal countries (like Japan and Australia), recent statements on the Ayungin Shoal tension are close to being hilarious.

They claim that China was ignoring the July 12, 2016 decision of the ad hoc arbitral tribunal on the suit filed by the Philippines against China in 2013, when Chinese vessels blocked and water-cannoned a boat that the Philippine Navy had hired to deliver supplies to the BRP Sierra Madre grounded at Ayungin Shoal.

Why don’t they read the decision itself? Even if China rejected the entire arbitration (proceedings) — after all, how can an arbitration be an arbitration if only one party participates? — one of its rulings basically supports Chinese actions in that shoal.

The tribunal’s decision on this particular aspect of the Philippine suit against China all but strengthened China’s hold on the shoal it calls Ren’ai Jiao. The Philippines had asked the tribunal back in 2013 to declare illegal China’s alleged interference with the former’s “rotation and resupply” (RoRe) operations for the BRP Sierra Madre. These are exactly the same RoRe operations that the Philippine Navy has undertaken, and more frequently, in the past six months.

These were all blocked by Chinese vessels using water cannons and maneuvers, producing vivid photos and videos of the Chinese allegedly bullying the Philippines and violating international law. The US ambassador to the Philippines claimed that “China’s interference with Philippine freedom of navigation violates international law.”

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, where Ayungin Shoal is.

Nine-dash

Yes, the award it did rule on was that China’s so-called nine-dash line enveloping much of the South China Seas had no basis under Unclos. But nowhere in China’s laws and declarations that defined its sovereign territory does it claim that the line is its basis for claiming sovereignty over the Spratlys.

In the first place, 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. In the ruling’s very first page, the tribunal emphasized;

“The Convention, however, does not address the sovereignty of States over land territory. Accordingly, this tribunal has not been asked to and 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. None of the Tribunal’s decisions in this Award are dependent on a finding of sovereignty, nor should anything in this Award be understood to imply a view with respect to questions of land sovereignty.”

In short, the Philippines claims it has sovereign rights over Ayungin Shoal because it is within its exclusive economic zone. China, on the other hand, claims it is within its sovereign territory called the Nansha archipelago. The arbitral tribunal said it cannot rule on such disputes.

How hard is it to understand that?

Defending

For China, therefore, is merely defending its sovereign territory against the Philippines, which is invading it by supplying the BRP Sierra Madre not just with supplies but with materials to make that dilapidated ship an outpost. Indeed, 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 — no body has — to rule on the validity of a country’s claims of sovereignty over a a particular territory made more than a hundred years ago.

Ironically, it was one of the late President Aquino 3rd’s American lawyers in the arbitration suit, Philippe Sands, who first conceded — a stupid blunder — 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).

Worse for the Philippines, 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).

Unclos

The tribunal 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 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.

Now, 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.”

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

Since 1999, our foreign affairs officials have been telling Chinese officials that the BRP Sierra Madre’s grounding was an accident and that it would be towed away “tomorrow.”

Even Aquino’s foreign affairs secretary Albert del Rosario at the Asean ministerial meeting in Brunei in 2013, 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.

Marcos

President Ferdinand Marcos, Jr. in August 2023: “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.”

That was a very careless statement, and Marcos, in effect, said goodbye to the BRP Sierra Madre in Ayungin.

I think because of the Navy’s many recent provocations to insist that it can bring whatever it wants to Ayungin Shoal, China will be moving to decisively end this flash point.

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 their 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 there and get them to abandon the vessel.

Furthermore, the Philippine Navy’s moves have driven the Chinese leadership into a corner: If China cannot defend such a really useless small area like Ayungin shoal, how can it build the confidence that it can take over rich Taiwan?

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 drive away our vessels. Did the US assist us? It is sheer delusion to believe the Americans will escort our vessels to supply the BRP Sierra Madre. President Biden certainly doesn’t want any conflict in the run-up to the US presidential elections just eight months away.

We really have to take seriously the threat of the Chinese foreign ministry spokesman that the Philippines must “be prepared to bear all potential consequences” of its actions in the South China Sea. And war isn’t solely the Chinese weapon it could use against us.


Facebook: Rigoberto Tiglao

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My website: www.rigobertotiglao.com

This Post Has 2 Comments

  1. Yojei

    As for the stationed marines/afp personnel, if it comes to their minds to abandon that rusty ship and defect to China, that cannot of blame to them. They should be considered heroes for saving the country and the citizens for a possible war, and not coward like the country’s leadership having no balls and just pure words that does not help deescalate the situation, always asking for help from other countries.

  2. Dorina S. Rojas

    Our officials consistently refuse this ruling because they are US puppets and have no balls to go against them. I may look at China as a bully but knowing what they have as defense against our leaders who are stupid or playing stupid because of cowardice, money rewards for themselves or both, we might lose all of our inland territories to US except hopefully, the soil we are standing on.

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