Untold Truths in the UNCLOS, PCA, WPS, SCS


First of two parts
IS the Permanent Court of Arbitration (PCA) in The Hague ruling really a win? For the Philippines or for the United States? Did China break a deal or did then-Foreign Affairs Secretary Albert del Rosario lose Scarborough?

Quarantines are, among other things, a time for reviewing our life, where we won and lost, for whom, and how to improve.  The anniversary of the PCA arbitration ruling is regularly being revived by former associate justice Antonio Carpio, del Rosario and some US groups as a great victory.  Was it really?  There are many dimensions for us to learn from, just as we review the twists and turns of our careers and lives.

Public relations, big win for the US?  The case has generated convenient materials that have been used for a worldwide media campaign — regularly used by the US and the “5 Eyes” when painting China as a “bully” with no comparison made with the actual record of behaviors of the US or other critical countries.  For the Philippines?  Filers are feted as heroes and supposed “nationalists,” and as possible candidates.  The case covers up for jawdropping misjudgements that got us into this problem.

Sovereignty — legal, not enforceable.  No sovereignty for the Philippines was established, which many forums try to project as a victory.  Everyone is to continue to allow each other access in the areas.  As pointed out by former ambassador and Manila Times columnist Rigoberto Tiglao, the Scarborough Shoal was applied for as a “rock,” and therefore declared as a rock instead of an island… diminishing officially the Philippines’ potential exclusive economic zone or EEZ, and other rights compared to those applied by the US, Japan, Taiwan, Vietnam etc. around their similar or smaller features — this means the Philippines was limited rather than expanded. This and other provisions, including relying so much on the Americans, raises the question were our representatives working for the Philippines rather than the US.  Even the terms used for the features were using US terminology rather than Philippine names.

Fonop — Freedom of navigation. The PCA decision gives the US a debatable basis, not a legal one, to continue to pass freely in the area.  The US also officially opposed the Philippines’ definition of its sovereign area and is the biggest violator, battleships and submarines passing through our territorial waters regularly without informing the Philippines, even against warnings.  Defense Secretary Delfin Lorenzana admits that we are not informed, and that the US feels there is no need to inform us.

Security.  Just this July 7, two US battleships, USS Nimitz and USS Ronald Reagan, passed the San Bernardino Straits, across the Central Visayas on the way to the West Philippine Sea (South China Sea).  Why is this not sensationalized to the public by the Philippine Daily Inquirer, Rappler or protested by Carpio or del Rosario?  This demonstrates that the Philippines is in danger of being caught in between an actual military confrontation between the US and China.  Even more so given EDCA — the Enhanced Defense Cooperation Agreement — which has turned the Philippines into a battleship with possible nuclear weapons just a short distance from China, which Filipinos cannot inspect without permission from the Americans.  This is one of the reasons that China will not give up the Spratleys anymore, in the same way the US refuses to give up Guantanamo in Cuba. Given that the US has been breaking all the rules and commitments in trade, finance, political and defense agreements — to the point of invading and assassinations, direct state interventions, and executions — many nations apply the policy framework that the US word cannot be trusted, and nuclear capability is necessary for implementable policy and negotiation with the US.

Can we deal with China, the US?  Can they deal with the Philippines?  The interesting stories and actual ground events that led to the confrontation will be for another time. During the West Philippine Sea negotiations to scale down the confrontation, China was meeting its end of withdrawal of boats at each stage of the sequence as negotiated by then Sen. Antonio Trillanes 4th, from over a hundred Chinese boats to the last three, despite misunderstandings arising in between.  The last condition to negotiate China’s full withdrawal, even while there were no more Philippine boats in the area, as narrated by Ellen Tordesillas per the accounts of Trillanes and never disputed, was the condition that it is not to be publicized or internationalized.  This last move can be used if China failed to remove the last three boats, yet del Rosario pushed for a public suit and President Benigno Aquino 3rd acceded.  Why was a process proven successful through several steps already abandoned in favor of confrontation?  Did the Philippines, the US or private interests have more to gain from a public embarrassment that will risk a peaceful resolution?  Why was the Department of Foreign Affairs (DFA) asking for US military-based and publicized intervention?  Were they not told and shown China was responding favorably to private negotiations and negatively to public attacks?

China did not renege. Contrary to many of the reports in the Philippines and Western media asserting that China broke the deal, it did not.  There is no actual account to show that, although yes, the deal fell apart, our DFA secretary and President Aquino 3rd abandoned a process that succeeded already 97 percent of the way in favor of a homerun. China’s Fu Ying says there was no deal, and the US has not denied this. While our DFA at the time claims there was a deal, they have no actual direct negotiation, they had abdicated the negotiation to the US, without even asking for some manner of verification. Was our DFA played, or did it play the game too far?  Then-Foreign Affairs Secretary del Rosario endorsed the US as “honest brokers”; after our experiences of betrayal in the takeover of the Philippines, the nonpayment of our veterans, the recent faked weapons of mass destruction accusation in order to invade Iraq after Iraq substantially acceded to destroying weapons destruction, and the same happening to Libya, somehow President Aquino 3rd and the DFA trusted the US on its word?  Many intelligent nations would not find comfort solely on the word of the State Department or any foreign negotiator on their behalf.  In Reality and Diplomacy 101, we fail repeatedly.  We win in Dramatics and Oratory.  We should examine more closely the facts, actual results, and whom we declare as heroes.

Misrepresentations and misunderstanding abound in political topics.  Despite all the US-views represented in forums and news, the PCA is not a United Nations body; and despite the name “PCA”, the body is not a court, it is not permanent, no arbitration happened since this requires the three parties to agree to the arbitration whereas in this case China did not agree.  The exception being under Unclos — the United Nations Convention on the Law of the Sea — that both the Philippines and China had opted out of the provision for compulsory arbitration when the countries ratified the convention, as revealed by former ambassador Rosario Manalo.  The US, who pushed our DFA to file the case, is not even a signatory, since it doesn’t recognize any restraint on its military accessing the rest of the world.  The “Law of the Sea…” is frequently cited by speakers as a law which is one of the indicators of ignorance by both speaker and audiences.

In the end, we are here to know is it good for the Philippines?  Is it good for the world?  How can we enhance it or improve it, or in US idiom, “turn lemon into lemonade”; in Chinese idiom, turn crisis into opportunity?  What is the Philippine equivalent of these —”Take charge of a difficulty and make it positive”?

New Worlds by IDSI (Integrated Development Studies Institute) aims to present frameworks based on a balance of economic theory, historical realities, ground success in real business and communities, and attempt for common good, culture, and spirituality. We welcome logical feedback and possibly working together with compatible frameworks (idsicenter@gmail.com).

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