Tag Archives: China

How the Philippines Can Enforce Its Arbitral Award without Going to War with China

By Marcial Bonifacio

August 31, 2020

My friends and countrymen, as we observe National Heroes’ Day on August 31, 2020, it is most appropriate to contemplate our country’s sovereignty, which includes maritime rights.  Throughout his term, President Rodrigo Duterte has repeatedly expressed the false notion that China is “in possession” of the West Philippine Sea (WPS) and that the Philippines is powerless to assert its sovereign rights therein, short of waging war with China, the latest declaration having been made in his last State of the Nation Address on July 27.  Consequently, every time he does so, his critics persistently rebut him, particularly the astute Supreme Court Justice Antonio Carpio, who was instrumental in the favorable 2016 ruling of the Permanent Court of Arbitration (PCA) on the WPS.

In my “Open Letter to President Duterte” and “Why Filipinos Should Give a Damn about Panatag Shoal,” I have presented some of Carpio’s advice on how the Philippines can, indeed, enforce its arbitral award without waging war with China, some of which I have likewise enumerated below.  Some of them are Carpio’s direct response to Duterte upon publicly asking him what action to undertake, as in the following dialogue:

“Xi Jinping [said] there will be trouble,” stated Duterte, “so answer me, Justice, give me the formula and I’ll do it.”

“My response is yes, Mr. President, there is a formula,” replied Carpio, “and not only one but many ways of enforcing the arbitral award without going to war with China, using only the rule of law.”

Without further ado, I present those options which Carpio stated should be implemented “together to fortify the award part by part, brick by brick, until the award is fully enforced.”

  • The Philippines can join a convention with Vietnam, Malaysia, Indonesia, and Brunei regarding the South China Sea.  The convention can declare that no geologic feature in the Spratly Islands generates an exclusive economic zone (EEZ) and that there are only territorial seas from the geologic features that are above water at high tide, as ruled by the PCA.  According to Carpio, China will be “isolated” as the only country claiming EEZs from the Spratly Islands.  Countries that assert freedom of navigation and overflight in the South China Sea are also expected to follow such a convention, he added.
  • The Philippines can invite Vietnam, Malaysia, Indonesia, and Brunei to conduct joint FONOPs in respective EEZs facing the West Philippine Sea.  “This will be a common assertion by 5 coastal states that each of them have their own respective EEZs in South China Sea thereby enforcing the arbitral award that China’s 9-dash line has no legal effect and cannot serve as basis to claim the waters of the South China Sea,” Carpio said.  By conducting joint FONOPs, it will also affirm the EEZ of the Philippines in the West Philippine Sea.  Carpio said that while the Philippines should welcome and join these operations, it has instead distanced the country from them, saying the Philippines “does not take sides” in disputes between China and other countries in the area, a seemingly treacherous gesture vis-à-vis the oldest and most loyal ally, the U.S.
  • The Philippines can welcome and encourage the freedom of navigation and overflight operations (FONOPs) of the U.S., U.K., France, Australia, Japan, India and Canada in the South China Sea, including the West Philippine Sea. The naval and aerial operations of these naval powers, which are in conformity with UNCLOS and customary international law, have increased in frequency since the 2016 PCA award, and are what Carpio describes as the “most robust enforcement” of the arbitral award, bridging the gap between the rule of law and the rule of justice.
  • The Philippines can persuade the U.S. to declare Panatag Shoal as part of Philippine territory, which would protect it under the 1951 Philippine-U.S. Mutual Defense Treaty (MDT).  Such action would add clarity for legal ramifications, since the shoal was known to be under Philippine jurisdiction as early as the American colonial period and even under Spanish rule.  The Japanese did precisely that with their Senkaku islands, which the U.S. declared as part of Japan’s territory for purposes of the U.S.-Japan Mutual Defense Treaty.
  • The Philippines could send the Philippine Navy to patrol Panatag Shoal.  “As the South China Sea is part of the Pacific,” stated U.S. State Sec. Mike Pompeo, “any armed attack on any Philippine forces, aircraft, or public vessels in the South China Sea will trigger mutual defense treaty obligations under Article 4 of our Mutual Defense Treaty.”  Of course, that would prompt the U.S. Navy to intervene.
  • The Philippines can resume joint naval patrols with the U.S. in the West Philippine Sea in order to project military might, which could deter China from continuing its island-building activity on Panatag Shoal.
  • The Philippine Coast Guard can send its ten 44-meter multi-role response vessels that were donated by Japan to patrol the West Philippine Sea.  These vessels, Carpio said, are ideal for patrolling and catching poachers in the Philippines’ EEZ in the West Philippine Sea. Doing so will also assert the country’s sovereign rights in the maritime area.
  • Congress can enact legislation to make permanent the Enhanced Defense Cooperation Agreement (EDCA) and the Visiting Forces Agreement (VFA).  Indeed, the MDT would be rendered obsolete without either of them as elucidated by Foreign Affairs Sec. Teodoro Locsin:


The Mutual Defense Treaty without the VFA and EDCA may be compared to a deflated balloon. For all practical purposes, it becomes an extra large rubber for an Asian. Far more elastic than he can ever need for its purpose and far more suitable as a shower cap than a prophylactic against foreign aggression.

Aside from the two treaties giving teeth to the MDT, making them permanent would revitalize and fortify America’s alliance with the Philippines while deterring China and other potential aggressors, as well as quelling terrorist threats.

  • The Philippines can emulate America’s foreign policy of imposing visa restrictions on all persons and business entities which Pompeo characterizes as “responsible for, or complicit in, either the large-scale reclamation, construction, or militarization of disputed outposts in the South China Sea, or [the People’s Republic of China’s] use of coercion against Southeast Asian claimants to inhibit their access to offshore resources.”
  • The Philippines can terminate contracts with Chinese firms which are, in any way, involved in reclamation and militarization activities in the WPS.  In fact, Locsin has already publicly said he would make such a recommendation to the appropriate agencies.
  • The Philippines can file an extended continental shelf claim in the West Philippine Sea beyond the 200-nautical mile EEZ off the coast of Luzon, where China is the only opposite coastal state. The Philippines can file this unilaterally with the UN Commission on the Limits of the Continental Shelf. China cannot invoke historic rights under its nine-dash line claim which has already been ruled without legal effect by the PCA. China’s own extended continental shelf does not overlap with the extended continental shelf of the Philippines in this maritime area.
  • The Philippines can “bring China’s threat of war to another United Nations Convention on the Law of the Sea (UNCLOS) arbitral tribunal, to secure an order directing China to comply with the ruling of the UNCLOS arbitral tribunal that declared the Reed Bank part of Philippine EEZ.”  He added that the “Philippines can also ask for damages for every day of delay that the Philippines is prevented by China from exploiting Philippine EEZ.”
  • The Philippines can facilitate efforts of active citizens to enforce the arbitral award.  Carpio referred to the case filed by former Foreign Affairs Secretary Albert del Rosario and former Ombudsman Conchita Carpio Morales against Chinese President Xi Jinping before the International Criminal Court. The complaint accused Xi of crimes against humanity over environmental damage in the South China Sea.
  • According to Senator Richard Gordon, the National Security Council can regularly convene and collaborate with a think tank paneled by foreign policy and defense experts.  Such regular meetings could keep the Philippines prepared for various contingencies.  “Alam naman natin na there is always contention in that area,” stated Gordon, “kaya dapat nakahanda tayo kung ano ang mangyayari diyan.”
  • The Department of Foreign Affairs (DFA) can and should immediately issue a clarification that China is in fact not in possession, and legally can never be in possession, of the WPS.  According to Carpio, the international law doctrine of unilateral declarations can bind the Philippines to Duterte’s statement about China’s alleged possession of the WPS, whereby China can claim the Philippines has forfeited its sovereign rights.  Hence, clarification from the DFA is essential.
  • The Senate and the House of Representatives can pass resolutions declaring that China is not in possession of the WPS.
  • All professional, civic, social, political, student, and alumni organizations, and all Filipino citizens, can and should overwhelm Malacañang with statements and text messages: China is not, and will never be, in possession of the WPS.

In conclusion, my friends and countrymen, lest the Philippines becomes “a province of China,” we can and must assert our sovereign rights in the WPS, regardless of Duterte’s rhetoric.  In the authoritative words of Carpio, “The Filipino people should not be intimidated by national leaders who peddle a false option that either we go to war with China or submit to China. This false option should be discredited once and for all. . . We cannot adopt a defeatist attitude and just sit idly by and let China seize what international law has declared to be our own Exclusive Economic Zone. . . This is the moment for all Filipinos to unite in defense of Philippine sovereign rights in the WPS.”

Mabuhay ang Pilipinas!

Why Filipinos Should Give a Damn about Panatag Shoal

By Marcial Bonifacio

My friends and countrymen, within 200 nautical miles of the exclusive economic zone of the Republic of the Philippines (RP) is a small cluster of rocks, encompassed by a body of water, known as Panatag Shoal to Filipinos and Scarborough Shoal internationally.  It was the subject of dispute between RP and China.  In 2013, President Benigno Aquino III filed a case before the Permanent Court of Arbitration (PCA) for which it ruled in RP’s favor in 2016.  Predictably, imperial China does not acknowledge the ruling and insists on claiming 90% of the international waters via its own “nine-dash line” metric, which the PCA has invalidated pursuant to the 1982 United Nations Convention on the Law of the Sea (UNCLOS).  The PCA also declared Panganiban (Mischief) Reef, Recto (Reed) Bank, and Ayungin (Second Thomas) Shoal as “part of the exclusive economic zone and continental shelf of the Philippines, and are not overlapped by any possible entitlement of China.”

Perhaps you all are pondering why we Filipinos should care about some cluster of rocks surrounded by water.  If President Rodrigo Duterte defends it, will that put food on our tables, educate our kids, or improve the quality of our lives?  If not, then why should any of us be concerned, especially since it risks provoking a war with China—a state of affairs which appears to be nothing short of a suicide mission?  Indeed, these are all legitimate and ubiquitously relevant questions worthy of addressing.

First and foremost is the legal issue of sovereignty and constitutional mandate of the President.  Since the PCA upheld RP’s sovereignty over Panatag Shoal, it is the government’s duty to defend it.  Pursuant to Art. XII, Sect. 2 of the 1987 Constitution, “The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone. . .”

Dereliction of this duty could be construed as betrayal of public trust, which is an impeachable offense according to Supreme Court Justice Antonio Carpio and Sen. Richard Gordon.  Aside from that, forfeiting our sovereign territory will only serve as a dangerous precedent for other potential encroachments by China.  What if China claims it recently unearthed a map indicating their sovereignty over Philippine Rise (formerly Benham Rise) or even the entire province of Palawan?  Not only is ceding Panatag Shoal a slippery slope towards imperial tyranny, it calls into question RP’s adherence to the Constitution and the rule of law—international law—in this case.

Second, Panatag Shoal is abundant in fish and natural resources, including minerals and gas.  Such resources can be utilized by consumers and businesses, while driving energy costs down, creating more jobs, raising living standards, and generating more tax revenue.  Indeed, it would stimulate the economy and contribute to a prosperous future for our country’s youth.  If, on the other hand, China is given free reign, there is a risk of irresponsible food shortages.  As former assistant secretary of defense for Asian and Pacific Security Affairs Wallace Gregson pointed out, “China stands harshly criticized in the UN Permanent Court of Arbitration judgment for ‘permanent and irreparable harm to the coral reef ecosystem.’”

Third, should China seize Panatag Shoal, freedom of navigation and overflight would be compromised.  Indeed, one third of world shipping (valued at over $5 trillion) passes through this route annually.  Hence, China has militarized seven reefs with runways, surface navy ship and submarine posts, hangars, radars, and surface-to-air missiles.  “The fear,” states Asia-Pacific security expert William Choong, “is that China will start dredging, followed by militarization, thus creating a strategic triangle connecting Woody Island, the Spratlys chain and Scarborough Shoal that would dominate most of the South China Sea.”  In order to prevent this, RP can and must assert its sovereignty.

Fourth, should RP decide to publicly acknowledge and enforce the PCA’s ruling, it would project fearless and determined leadership.  Not only would ASEAN consider RP an economic partner, it would be respected for defending its sovereignty, vis-a-vis an imperialistic juggernaut.  Indeed, it would be a successful model for Vietnam, Malaysia, Brunei, and Taiwan to emulate, since those ASEAN members also have maritime disputes with China.  Incidentally, RP happens to be one of ASEAN’s founders and is the first country to defend its sovereign territory against China via the PCA (and won), which puts it in a historically unique position.  Unfortunately, Duterte squandered a perfectly good opportunity to invoke the favorable PCA ruling at the ASEAN summit in which he himself presided as its chairman.

Perhaps you may understand and concur with my factually based points.  However, skeptics may reiterate Chinese Pres. Xi Jinping’s war threat and Duterte’s rationale that RP cannot win a war against China, due to its inadequate military capability.  In that case, I must defer to the authority of Supreme Court Justice Antonio Carpio, some of whose practical advice I conveyed in my letter to Duterte on May 2017:

  • The Philippines should “bring China’s threat of war to another UNCLOS arbitral tribunal, to secure an order directing China to comply with the ruling of the UNCLOS arbitral tribunal that declared the Reed Bank part of Philippine EEZ.”  He added that the “Philippines can also ask for damages for every day of delay that the Philippines is prevented by China from exploiting Philippine EEZ.”

 

  • The Philippines should persuade the U.S. to declare Panatag Shoal as part of Philippine territory, which would protect it under the 1951 Philippine-U.S. Mutual Defense Treaty.  Such action would add clarity for legal ramifications, since the shoal was known to be under Philippine jurisdiction as early as the American colonial period and even under Spanish rule.

This map was composed in 1734 showing Panatag Shoal within Philippine jurisdiction under Spanish rule. It is highlighted as “Panacot.”

  • The Philippines should send the Philippine Navy to patrol Panatag Shoal.  Should China stage an attack on any Philippine navy vessels, the Philippines can invoke the Mutual Defense Treaty, since it covers armed attacks on such vessels, pursuant to Article IV.  Of course, that would prompt the U.S. Navy to intervene.

 

  • The Philippines should resume joint naval patrols with the U.S. in the West Philippine Sea in order to project military might, which could deter China from continuing its island-building activity on Panatag Shoal.

In spite of such recourse against China’s war threat, some contend that China would renege on its commitment to financing a $180 billion infrastructure program in RP (including two railways, a hydroelectric dam, and an irrigation system).  It must be noted that its impact is not confined to transportation exclusively.  Indeed, it adversely affects commerce, the rate of employment, and the price and quality of goods and services.

However, this is a maritime dispute which need not alter trade or financial relations.  “I would take the approach of Vietnam as the model,” stated Carpio, “because Vietnam is very strong in resisting China’s encroachment but they continue to have very strong trade relations with China.”  Former national security advisor Roilo Golez even raises a 2014 incident in which Vietnam asserted its maritime sovereignty against China, leading to battle.  Ultimately, “after two months of that kind of encounter, watched by the entire world, China backed out.  That is something that we can study, how they do it.

Even if China’s financial commitment is fully dependent on RP’s forfeiture of Panatag Shoal, China does not possess a monopoly on capital.  Alternative financing could be secured from Japan, South Korea, Australia, Sweden, EU, UK, or the U.S.  Otherwise, some of the funding can come from tax reform or liquidation of confiscated assets of prosecuted drug lords.  In the U.S., Sen. Ted Cruz proposes the Ensuring Lawful Collection of Hidden Assets to Provide Order (EL CHAPO) Act which would allocate seized assets of drug dealers (like “El Chapo”) towards funding President Donald Trump’s border “wall.”

Furthermore, the significance of Panatag Shoal should not be underestimated, nor should our country’s capability of defending it against China, in spite of President Xi Jinping’s war threat.  In fact, defending the shoal would display our country’s resolve to effectively enforce its constitutional mandate and would serve as a model for other ASEAN maritime claimants to follow.  Additionally, the shoal’s bounty can provide food and jobs for citizens and be a reserve for our country’s energy needs—now and for our youth’s future.

Finally, should the aforementioned reasons be insufficient, ponder this.  Last month marked the 119th anniversary of our independence from Spain on June 12, 1898.  Today is our 61st anniversary of independence from the U.S. on July 4, 1946 and this year, the 75th anniversary of the Bataan Death March in 1942.  Indeed, they are all appropriate occasions in which to contemplate the sacrifices of our soldiers.  After all, did they not shed their own blood for the entire Philippines, including Panatag Shoal?  Ergo, is it not incumbent on us to cherish and protect what they fought for, so that their deaths shall not have been be in vain?  Surely, my friends and countrymen, for this reason alone, I submit we Filipinos should give a damn about Panatag Shoal and implore, nay, demand that the President defend it!

The Bataan Death March was a 65-mile trek into which over 76,000 Filipinos and Americans were coerced by Japanese captors during World War II in 1942.  Many died of starvation, sickness, and bayoneting by the Japanese.  Their death in serving and defending the Philippines gives them the highest honor.

Comments

From Freedom Wall:

 

 From Asian Alliance Against RED CHINA :

Lawrence Mark Pinoys do care about Panatag…. Unless youre a dutertard… 😂

LikeShow more reactions  ReplyJuly 4 at 5:32pm  Remove 

 Ronald David haha
LikeShow more reactions ReplyJuly 4 at 7:35pm Remove
Jennifer Bichara I did not know you posted this already
LikeShow more reactions Reply1July 4 at 5:35pm Remove
Jennifer Bichara Anyway, yes this is our soveignty
LikeShow more reactions  Reply1July 4 at 5:39pm Remove
Ave Rex Andrada Wow! Excellent article about the disputed Panatag/Scarborough shoal.
LikeShow more reactions ReplyJuly 4 at 6:54pm Remove
Marcial Bonifacio Clearly, Duterte does not value Panatag Shoal, Jennifer. Do you think his supporters do?
LikeShow more reactions ReplyJuly 4 at 8:21pm Remove
Jennifer Bichara They don’t see the value. They are utterly clueless about the consequences of his policies to the future of our country
Like ReplyJuly 4 at 8:26pm Remove 
Lawrence Mark do his supporters not value Panatag?.. u know whatever duterte says.. like that china is our friend crap.. ofcourse they will absolutely agree… like mindless zombies 😂
Marcial Bonifacio I appreciate the positive feedback, Ave.
LikeShow more reactions ReplyJuly 4 at 8:24pm Remove 
Ave Rex Andrada I think Duterte will give the Shoals to China in exchange for the projects that we may not need and for the commissions that he’s going to gain. Hopefully, it won’t be too late for the next administration to reclaim what ever is left of our EEZ… It would be pointless to expect as of now, anything from the Duterte administration.
Like ReplyJuly 4 at 8:58pm Remove 
Marcial Bonifacio Well that’s the trouble with Duterte’s short-sighted, provincial perspective, impulsiveness, and anti-American attitude.
Ave Rex Andrada Another alternative is to take the old navy ship, ready to be decommissioned to the Panatag shoal, and anchor or aground it, (ala, BRP Sierra Madre) somewhere near the mouth of the shoal. It would become the new permanent base of marines and Filipino fisherman. 
Like Reply1July 5 at 1:38pm Remove
Marcial Bonifacio Isn’t Sierra Madre currently stationed in the Spratly Islands, Ave
Like ReplyJuly 9 at 8:19pm Remove 
Ave Rex Andrada right sir… the old warship was purposely aground in the Ayungin Shoal… 
LikeReplyJuly 10 at 6:08am
Roger Pepito Of korz! we Pinoys shud & must, its well within our EEZ & only about 200kms from Luzon..
LikeShow more reactions ReplyJuly 5 at 9:58pm

 

From Opinyong Tunay:

Eddie Macasinag HO HO HO HO, bakit pala ano? Doon kaya Mr Duterte ka mag declare ng Martial Law,
Marcial Bonifacio Are you suggesting I tell Duterte to engage in war with China, Eddie?
Eddie Macasinag Sira ba ulo mo Marcial BonifacioMatuturoan ko ba yan c Duterte ?
Marcial Bonifacio Dinaramdam ko, Eddie. Marahil meron misunderstanding. I was just trying to clarify your point.
From For the Love of the Philippines:
Kenneth Villar Who cares? Duterte and his Dutertards doesn’t even care at all! 😜😜😂😂😂
Kenneth Villar Who gives a damn! Even Duterte doesn’t gives a shit!
Marcial Bonifacio If Duterte respects the Constitution, then he should give a damn because defending our sovereign territory is his constitutional mandate.
Roy Samontina char!nagsalita ang mga experto!😆😆😆😆
From Get Real Philippines:
Al Giorgio Sy Why just now? because US mongrels aka liberal party said so? if they really did care about the place, they would have set infrastructure there way before china did. pinoys need to suck up their pride and whining when they get outmaneuvered because of their incompetency.
From Balitang Global o Local:
Jeffrey Claros's Profile Photo, Image may contain: one or more people, people sitting, table and indoorJeffrey Claros . Too late to fight it if the UN officials and counsel has no teeth for the action in arbitruary case which won before duterte’s presidency.
Marcial Bonifacio Duterte is the one who needed teeth. He simply could have raised this issue with American President Donald Trump. Surely, he would have given full support, Jeffrey.
From Gising na Pilipinas :