THE government was quicker to protest the portrayal of a fictional Philippine President (Datu Andrada) making improper advances on the fictional US Secretary of State (Elizabeth Mc Cord) in the American TV series “Madam Secretary” than to react to the presence of Chinese vessels at Benham Rise, a 13-million hectare mineral- and biodiversity-rich area in the undersea region near Aurora province, known to be part of our extended continental shelf. This was disconcerting to most of my friends. Andrada and McCord are fictional characters in a fictional TV series while Benham Rise is a real part of our geography. Had the fictional President been American, would the White House, the State Department or any reasonable American individual have made a mountain out of that molehill? I sincerely doubt it.
In reality, President Rodrigo Duterte likes to make playful passes at pretty TV news reporters during press conferences. In that respect, he may not be totally unlike the fictional Andrada in the TV series. But even if Andrada and DU30 had identical qualities, so long as the fictional character wasn’t called DU30 or made to look physically like DU30, there can be no valid ground for a complaint. It’s fiction, pure and simple. It’s no more scurrilous than Dan Brown’s Da Vinci Code which amused readers who knew the distinction between fiction and fact.
It’s a political, not military call
But why does the government want to make a federal case of it, while it is so careful not to be seen asserting its rights over Benham Rise? The area is undisputed, unlike any of the various islands, islets and shoals in the West Philippine/South China Sea, which are highly contested and seen as potential regional flashpoints. China itself acknowledges our rights to the area, except that PDU30 does not want to offend China by asserting those rights. “My order to the military,” he said, “is to tell them straight it’s ours, but to say it in friendship… Let’s not fight about ownership or sovereignty at this time because things are going great for our countries.”
The whole approach seems childish. No one is spoiling for a fight with China; but we have the right and the duty to tell them they have overstepped the limits, if and when they have, as indeed they have. But it is not for our military, as DU30 seems to believe, to tell them our position; it is for the Department of Foreign Affairs to make it clear that Benham Rise is part of our extended continental shelf. What does this mean?
Under the UN Conference on the Law of the Sea (UNCLOS)—(www.un.org), “the continental shelf is that part of the seabed over which a coastal state exercises sovereign rights with regard to the exploration and exploitation of natural resources, including oil and gas deposits as well as other mineral and biological resources of the seabed. The legal continental shelf extends to a distance of 200 nautical miles from its coast, or further if the shelf naturally extends beyond that limit.”
The extended continental shelf
Where the continental shelf extends beyond 200 nautical miles a State is required by UNCLOS (Article 76) to make a submission to the Commission on Limits of the Continental Shelf (CLCS). This submission sets out the coordinates of the outer limits of the shelf and is accompanied by technical and scientific data to support the claim. The Commission assesses the limits and data submitted by the coastal State and makes recommendations. The outer limits of the continental shelf established by a coastal state based on these recommendations are final and binding.”
A recent statement by the Chinese Foreign Ministry conceded that in 2009, the Philippine government submitted the coordinates of the outer limits of the shelf, and that in 2012, the UN Commission on the Limits of the Continental Shelf approved the submission of the Philippines. It should therefore be free to carry out exploration and development of natural resources in the area, the statement said. But it doesn’t mean the Philippines owns the whole place, the statement added.
The real problem, though, seems to be coming not so much from China as from PDU30 himself. For starters, he seems to mix up Benham Rise with the West Philippine/South China Sea, where he has decided to embrace Pax China without invoking the prudential safeguards provided by international law. On his government’s conflict with China on Scarborough Shoal, he has decided to set aside a ruling of the permanent arbitration tribunal at The Hague, which upholds the rights of the Philippines to the resources within its exclusive economic zone, and declares China’s so-called “nine-dash line”, under which it claims almost all of the South China Sea, to be without any legal basis.
Keeping everyone in the dark
DU30 appears to have granted China free access to the area without informing the Department of Foreign Affairs and the Department of National Defense, which have been left groping in the dark. While both departments were saying there are no arrangements for Chinese vessels to be conducting surveillance in Benham Rise, DU30 after a number of evasive comments said, to their utter surprise, that he had authorized the Chinese presence.
No document has surfaced to reveal such an agreement, so it is logical to presume that it must have been an informal oral agreement made during a secret conversation between DU30 and a Chinese official, without minutes or witnesses or need to be confirmed by legislation. This is no way to handle the serious and sovereign business of State.
This is a more dangerous version of what President B.S. Aquino III did when he abolished the civilian “chain of command” in order to launch his special operations in Mamasapano, Maguindanao, where 44 Special Action Force commandos perished, after they were denied badly needed military reinforcement. In the Mamasapano tragedy, as recorded in Sally Belosillo’s excellent documentary, “Fallen But Not Forgotten,” Aquino cut off the Secretary of Interior and Local Government, the acting PNP chief, and the Armed Forces of the Philippines from the traditional command chain, and shared his information with no one except the suspended PNP chief Alan Purisima, and the SAF commander who did not trust the military forces in Mindanao.
In Benham Rise, DU30 shared his information with absolutely no one. He decided to act as the full equivalent of the Republic of the Philippines. Which is why there is a demand in Congress for him to disclose the terms of his “agreement” with Beijing.
Amending the impeachment complaint
Magdalo party-list Rep. Gary Alejano, who has authored the first impeachment complaint against DU30, seems to believe the President’s clandestine agreement with China, in derogation of the territorial integrity and national security interests of the Philippines, carries with it the smell of treason, even though we are not at war with Beijing. This could compel an amendment to the impeachment complaint, whose success is uniformly discounted by those who doubt Magdalo could muster one-third of the total House membership to move the complaint through the House justice committee to the Senate for trial.
But the more serious warning comes from Supreme Court Senior Associate Justice Antonio Carpio who says DU30 would be violating the Constitution if he fails to uphold the sovereignty and territorial integrity of the Philippines. China has become harder to deal with after DU30 unilaterally set aside the arbitral ruling on Scarborough Shoal (Panatag) in favor of the Philippines. Having gained a reprieve from the tribunal’s adverse ruling, it became easier for China to deny its surveillance activities at Benham Rise until DU30 revealed he had authorized them. This has now emboldened China to plan the construction of new structures on Scarborough reputedly to monitor the environment. Asked about this, DU30 replied, “we can’t stop Chinese structures on Panatag shoal.”
Giving diplomacy a chance
Justice Carpio’s blunt advice is for DU30 to send the Navy to Panatag, and stop the Chinese construction. If China stops the Navy from discharging its mission, DU30 should call on the US, under the terms of the 1951 US-Philippine Mutual Defense Treaty, to come to the defense of the Philippines. Under Article IV of the MDT, an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety, and declares that it would act to meet the common dangers in accordance with its constitutional processes. For purposes of Article 1V, an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific.
This would put to the test the statement made by US Secretary of State Rex Tillerson, before he was confirmed by the Senate, that the US would not allow China to build structures on any of the disputed islands, and would not allow it to have access to such structures. So far there is no hard information on China’s reported construction plans. With no sufficient information on China’s activities on the disputed islets and islands, the most the DU30 government can do, and so far has been able to do, is to inquire from the Chinese government what they are doing on Panatag and be satisfied with their reply, even without any verification.
This technical capability of the DU30 government is not expected to improve soon. But if it wants to engage in serious diplomacy and achieve something ambitious for itself and for the region, the government should begin to be more creative and explore the full range of short-term and long-term foreign policy options. It should give real diplomacy a chance.