• What did he gain and what did he lose in that Chinese embrace?

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    FRANCISCO S. TATAD

    FRANCISCO S. TATAD

    LAST week the Department of Foreign Affairs “celebrated” the July 12, 2016 ruling by the Permanent Court of Arbitration at The Hague on the Philippine-China disputes in the Spratlys by issuing a statement that read like one from the Chinese Ministry of Foreign Affairs. It was a rare achievement in Newspeak. In case you missed it, here it is:

    “Statement on the first anniversary of the arbitral tribunal award, 12 July 2017:

    “The Duterte administration reaffirms its unwavering commitment to protect our country’s territorial claims and maritime entitlements, but believes that the ongoing territorial dispute in the West Philippine Sea should further be resolved in a manner consistent with the spirit of good neighborly relations. President Duterte’s priority of regional peace and stability has led to the healthy environment of dialogue, cooperation and development.

    “The bold initiatives of the administration in pursuing an independent foreign policy have become a game changer not only in the geographical landscape in the region but more importantly in the lives of our people.

    “The Philippine approach has led to great benefits for the country, allowing us considerable economic gains as well as strengthening our status as Asean chair and regional peacemaker.

    “Through the adoption of positive neighborly relations, our fishermen are back exercising their livelihood in Scarborough Shoal. We have received investment and financial assistance commitments upwards of $30 billion from our partners in the region. The significant developments have likewise allowed our defense resources to also address other pressing securing concerns facing the country.

    “The Philippines is further encouraged by the Agreement on a Framework on the Code of Conduct on the South China Sea that will help us move towards negotiating an effective Code of Conduct.

    “Secretary of Foreign Affairs Alan Peter S. Cayetano reiterates that the Duterte administration is committed to its strategy to strengthen old allies and engage new partner nations. The Philippines shall remain an enemy to none and a friend to all in its pursuit of economic and political benefits for the country, including the long-term security and stability in the region.”

    Each sentence in the statement can be parsed and dissected to see whether it corresponds to the truth, or whether it is pure gobbledygook. I think it’s all Newspeak, the fictional language of Oceania, George Orwell’s fictional state in Nineteen Eighty Four, where the Ministry of Truth (Minitrue) proclaims “freedom is slavery,” and “war is peace.”

    Turning victory into defeat
    It says absolutely nothing about what the DFA thinks of the 2016 ruling, or the status of our maritime claims and our disputes, but rhapsodizes about the “gains” we got “from the region” for not asserting it. For years and years, we used to celebrate our historic defeats like “the Fall of Bataan,” as though they were victories; this is the first time the government has chosen to turn a “victory” into a “defeat.”

    On the day the Hague tribunal ruled, a euphoric crowd gathered near the DFA along Roxas Boulevard to welcome it. The erstwhile Foreign Secretary Perfecto Yasay Jr. cautioned the nation against offending the Chinese government. He was more concerned with saving our neighbor’s face than advancing our sovereign rights and territorial interests.

    President Rodrigo Duterte decided to set aside the ruling in order to embark on an economic-oriented relationship with the Chinese government. He visited China in October 2016 and got an economic package of $24 billion in loans and investments, after he announced “separating” economically and militarily from the United States, and aligning himself with China and Russia “against the world.”

    China’s embrace
    Like many others, I have long advocated an equidistant foreign policy vis-à-vis China and the US. So I supported DU30’s decision to engage with China in the most positive and productive way by putting aside any possible confrontation on the Spratlys. But I expected both governments to agree that the peaceful settlement of their maritime disputes would remain the ultimate desired result of their improved economic, political and people-to-people relations.

    This meant that while their maritime disputes remained unresolved, neither of them would exert any effort to change the status of the maritime features that are subject of these disputes. It seemed to me a most reasonable condition, even if China had refused to participate in the arbitration process, and refused to recognize its results. But this appears to have been reduced into a wishful thought.

    It appears that China’s dredging, island-building and fortification on the disputed features have not been restrained by DU30’s decision not to invoke the ruling in his dealing with the Chinese government.

    The extent of China’s continuing activities is not known to the public. And the government has not tried to inform itself, or the nation sufficiently about it. It has stopped protesting any of China’s perceived unlawful activities in the Spratlys. Fortunately, there are still some highly motivated and independent voices willing to speak, even at the risk of exposing the official prevarications and half-truths of government.

    Golez’s revelations
    Former Congressman and National Security Adviser Roilo Golez is one of these. On my GNN cable TV program (“Una Sa Lahat”) with Catholic media broadcaster Ariel Ayala yesterday, Golez showed the extensive constructions in the area of Mischief Reef. These are “military-capable” constructions.

    The tribunal had ruled that China’s land reclamation and/or construction of artificial islands, installations and structures at Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef and Subi Reef, prior to its ruling, did not constitute “military activities” within the meaning of the UN Convention on the Law of the Sea (Unclos), of which both the Philippines and China are state parties.

    But the latest reports indicate that the newly constructed structures are apparently being prepared for military use. These reports deserve to be verified, and the government should be the one to do it. But how can the government do so, in light of its July 12, 2017 statement? Indeed, what is the real position of the DU30 government not only on the arbitral ruling, but above all on the official complaint which became its basis?

    Imperative questions for DU30
    Because of DU30’s decision not to invoke the ruling as a necessary factor in shaping his government’s relations with China, this question must now be asked. And it must be answered. To begin at the beginning, in 2013, the Aquino government asked the tribunal to arbitrate its dispute with China concerning the source of maritime rights and entitlements in the South China Sea.

    It asked the tribunal to declare that China’s rights and entitlements must be based on the Unclos, not on any claim to historic rights; that its claim to rights within the nine-dash line marked on Chinese maps are without lawful effect to the extent that they exceed the entitlements permitted China by the Convention.

    It asked the tribunal to resolve the dispute concerning entitlements to maritime zones generated under the Convention by Scarborough Shoal and certain features in the Spratlys, a constellation of small islands and coral reefs in the southern part of the South China Sea, existing just above or below water, that comprise the peaks of undersea mountains rising from the deep ocean floor.

    The Philippine position
    To the Philippines, all of the features claimed by China in the Spratlys as well as Scarborough are submerged banks or low-tide elevations (land exposed at low tide but submerged at high tide), incapable on their own of generating entitlements to maritime areas and cannot sustain human habitat or economic life of their own, and do not generate an entitlement to an exclusive economic zone of 200 nautical miles or to a continental shelf.

    The government asked the tribunal to also resolve some disputes like Chinese interference in Philippine rights to fishing, oil exploration, navigation and construction of artificial island and installations within its EEZ; the destruction of marine environment by harvesting endangered species, using destructive methods that damage the fragile ecosystem, and engaging in extensive land reclamation at the seven reefs (earlier mentioned); and restricting a detachment of Philippine Marines stationed at Second Thomas Shoal, within the Philippine EEZ and continental shelf.

    China refused to recognize and participate in the arbitration process. But the Permanent Court of Arbitration (PCA) assumed jurisdiction and commenced the process on January 22, 2013, with five judges, a panel of lawyers from the Philippine government, and observers from Australia, Vietnam, Malaysia, Indonesia, Thailand and Japan. On July 12, 2016, the court ruled in favor of the Philippines on virtually all counts, except on some issues that involved “military activities,” where the court had no jurisdiction.

    Some details of the ruling
    The PCA declared that China’s claims to historic rights or jurisdiction, with respect to the South China Sea encompassed by the ‘nine-dash line’ are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of its maritime entitlements under the Convention; that no maritime feature claimed by China within 200 nautical miles of Mischief Reef or Second Thomas Shoal constitutes a fully entitled island for the purpose of the Convention, and therefore no maritime feature claimed by China within 200 nautical miles of Mischief Reef or Second Thomas Shoal has the capacity to generate an entitlement to an EEZ or continental shelf.

    The tribunal declared that China violated Philippine sovereign rights, and that it undermined the integrity of the proceedings. For while the tribunal was called upon to determine the status of features in the Spratlys and the entitlements such features were capable of generating, China has permanently destroyed evidence of the natural status of those features; the small rocks and sand cays that determine whether a feature constitutes a low-tide elevation or a high-tide feature capable of generating an entitlement to a territorial sea are now literally buried under millions of tons of sand and concrete, making the yribunal’s task so much more difficult, the ruling said.

    Despite this, the tribunal declared its decisions concerning the status of the features are well-founded in fact.

    Despite China’s refusal to recognize the process and its result, the yribunal expressed confidence that as a signatory of Unclos, China will do what is expected of it by the Convention and international law. But with DU30 waiving China’s obligation to comply with the arbitral ruling, China may have been released from that obligation. The real question that must be asked is this: Is DU30 actually disowning the Aquino government’s action in filing the complaint before the Court, and is he ready to contradict its finding that China violated Philippine sovereign rights, that Scarborough Shoal and Second Thomas Shoal are within the Philippine EEZ, and that China’s claim to historic rights to the South China Sea encompassed by the ‘nine-dash line’ beyond the geographic limitation of its maritime entitlements under Unclos has no legal basis?

    This is the large and long-term question DU30 will have to answer even as his relationship with China rises to the point where he is now receiving a big pile of arms and munitions to help him fight Islamist extremists. Having cleared the way for the criminal prosecution of his immediate predecessor, B. S. Aquino 3rd, in connection with the massacre of 44 SAF commandos at Mamasapano, DU30 will have to prepare for the day when his current handling of the Spratly issue could prompt another administration to do to him what he is doing to Aquino right now. We do not need Matthew (7:2) to remind us that “in the same way you judge others you will be judged, and with the measure you use, it will be measured to you.”

    fstatad@gmail.com

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