SUPREME Court Associate Justice Antonio Carpio, who contributed immensely to our winning our arbitration suit against China’s “nine-dash line” maritime claim, wants President Rodrigo Duterte to shut up.
He didn’t put it that way, but it was part of his point. Justice Carpio asked the President to take care in speaking on territorial issues, to avoid explicitly or implicitly relinquishing sovereign claims and rights.
As head of state, President Duterte speaks for the Republic. Hence, if he says, for instance, that the Philippines can do nothing about construction and other actions by China on Scarborough or Panatag Shoal, it could be construed as giving up our claim.
And if the Duterte government actually does nothing, not even protesting Beijing’s building plan or work, it may further buttress the claim that we’re not interested in asserting territorial rights.
Plus: The President may be shirking his constitutional duty to defend the national territory and patrimony — an impeachable offense.
Another expert in international maritime law, however, begs to differ with His Honor the Senior Associate Justice.
Legal luminary Estelito Mendoza was Philippine representative in global negotiations decades ago forging the United Nations Convention on the Law of the Sea (UNCLOS), the legal regime for maritime sovereign rights, freedom of navigation, and other provisions governing the high seas.
The Marcos-era justice secretary and solicitor general also advised in crafting the 2008 Baselines Law and claiming the 130,000-sq km Benham Rise undersea plateau, which the UNCLOS declared part of our extended continental shelf, with no nation objecting.
The ECS confers exclusive rights to harness resources in the seabed, like offshore oil, while the exclusive economic zone (EEZ) covers use of the waters, like fishing.
Mendoza believes President Duterte has not said or done anything weakening territorial and maritime claims, even in declaring: “We cannot stop China from doing its thing [on Panatag]. Even the Americans were not able to stop them.”
Or when he disclosed that he allowed China to do marine research at Benham Rise, amid concern over a Chinese vessel staying there for three months last year. (Notably, Justice Carpio also said research on the waters is fine, but not on the seabed.)
So, which legal opinion is correct? We won’t know for sure until President Duterte’s actions and statements are cited by a rival claimant in some international tribunal on conflicting territorial claims. But it’s wise to be careful, as Justice Carpio urged.
Asserting sovereign rights
He also suggested five ways for President Duterte to fulfill his constitutional duty of asserting territorial claims, even without force. One is to avoid statements and actions undermining sovereign claims and rights. The government can also strongly protest violations — “the least the Philippines can do,” said Carpio. And Duterte can send vessels to patrol our claimed areas.
Third, the government can ask Washington to declare Panatag Shoal as part of territory covered by the Philippines-US Mutual Defense Treaty, Carpio argued, since it was part of the country when we were under American rule. And he urged accepting the US standing offer of joint naval patrols in disputed areas, which President Duterte stopped.
The Palace has not been utterly silent on territorial issues. Last week, Presidential Spokesperson Ernesto Abella raised concerns over the Chinese vessel in Benham Rise. He also asked Beijing to clarify reports that it plans to build a environmental monitoring station on Panatag Shoal.
Yesterday, China’s Foreign Ministry denied it just when the Justice and Foreign Affairs Departments said they would file a strong protest.
On Carpio’s proposals, one hopes the President would mind his tongue on maritime matters, despite his refusal to be silenced on other issues.
Despite his amicable policy toward China, downplaying disputes, there should be room for protests even between friends. But sea patrols, especially with the US, seem unlikely for now. The Navy will secure Benham Rise, which isn’t disputed territory.
Regarding the defense treaty, President Duterte reiterated during his Myanmar visit his aversion to military activities with the US, which may provoke China, even though he saw much improved ties with President Donald Trump’s administration.
Time to get a real stick
So, is that all we can do about territorial encroachments — speak softly, since we don’t have a big stick?
In fact, there are defensive capabilities we should develop, but never did, due to our excessive dependence on the US alliance.
In April 2012, when the past regime lost Panatag Shoal, the Washington security think-tank Center for Strategic and Budgetary Assessments (CSBA) urged: “The United States needs to help the Philippines develop its own set of ‘anti-access/area denial’ capabilities to counter China’s growing power projection capabilities.”
Those A2/AD assets include maritime surveillance planes to survey the high seas, anti-ship missiles to deter intruders, and anti-aircraft systems to protect the projectiles, argued the CSBA report, “The Geostrategic Return of the Philippines” <https://www.files.ethz.ch/isn/154663/2012.04.18-Geostrategic-Return-Philippines1.pdf>.
Former National Security Adviser RoiloGolez has long advocated acquiring 200 BrahMos supersonic anti-ship missiles made in India with Russian know how. The truck-mounted hard-to-find rockets, with their 300-to-400-km range, can protect our entire EEZ and most of our ECS.
Since the BrahMos would secure offshore oil deposits, their deployment could be an energy-related undertaking funded with Malampaya gas royalties, now well over P150 billion. Vietnam is buying the BrahMos, along with that other key A2/AD weapon: submarines. (President Duterte should mention both when he visits Moscow.)
Why didn’t Washington follow CSBA advice and provide A2/AD gear, as Tokyo is doing with two surveillance planes recently turned over? Just a wild guess, but maybe it’s because if we could defend ourselves, we wouldn’t let American forces escalate deployment and use bases in our country.
What if we’re attacked or invaded for sinking intruding ships? Then the US alliance kicks in. And despite Duterte’s cussing, America will fight to keep the Philippines from falling into enemy hands and becoming a vast hostile military platform dominating Asia.
So, Mr. President, you’re right for us to bide our time until we’re strong enough to defend what’s ours. Now, let’s get those A2/AD armaments pronto.
Mabuhay ang Inang Bayang Pilipinas!