Supreme Court Senior Associate Justice Antonio Carpio said this yesterday as he dismissed as a mere joke President Duterte’s pronouncements that he would invoke the MDT and ask the US to send its Seventh Fleet to the West Philippine Sea for a confrontation with Chinese forces.
Michael Varcas
Carpio on Duterte invoking MDT: Just another joke
Edu Punay, Pia Lee-Brago (The Philippine Star) - July 19, 2019 - 12:00am

MANILA, Philippines — The government cannot invoke the Mutual Defense Treaty (MDT) with the US to compel the latter to attack China and drive its forces from Philippine waters.

Supreme Court Senior Associate Justice Antonio Carpio said this yesterday as he dismissed as a mere joke President Duterte’s pronouncements that he would invoke the MDT and ask the US to send its Seventh Fleet to the West Philippine Sea for a confrontation with Chinese forces.

“I think the President is just joking, just like his jetski joke. The President knows that the Philippines can invoke the PH-US Mutual Defense Treaty only if there is an armed attack on Philippine territory or Philippine military ships and aircraft. This has not happened,” he said in a text message to The STAR.

Carpio explained that the MDT operates only for self-defense and not for aggression against another state.

“A war of aggression is prohibited by the Philippine Constitution and the United Nations Charter. A war of aggression makes leaders of the aggressor state liable for an international crime subject to the jurisdiction of the International Criminal Court,” the senior SC magistrate pointed out.

Duterte voiced his plan to invoke the treaty in an interview over Pastor Apollo Quiboloy’s television program.

Former foreign affairs chief Albert del Rosario also chided the President for entertaining the thought of turning to the US for military help in resolving the West Philippine Sea issue.

“The President cannot invoke the Mutual Defense Treaty to start a war because the treaty is about the right of countries to defend themselves,” Del Rosario said in a statement.

“Starting a war violates the Philippine Constitution and international law,” Del Rosario said. “Under Philippine law, inciting to war is a crime punishable by imprisonment.”

He said the Philippines can only invoke the MDT if there is an armed attack on its territory or its armed forces, public vessels or aircraft in the Pacific.

“However, we all know that none of these have happened,” he added.

US Secretary of State Michael Pompeo gave assurances during his visit to Manila in March that the US would help if the Philippines was attacked in the South China Sea.

In his interview with Quiboloy, Duterte challenged American forces and his critics to join him in confronting China over its activities in the West Philippine Sea. He said Carpio and Del Rosario, two of the most outspoken critics of his policy on China, should also witness the deployment.

Duterte said the Philippines would “dry up” if China decides to use nuclear bombs to counter the deployment.

“I’m calling now America. I’m invoking the RP-US pact. I would like America to gather all their Seventh Fleet in front of China. I’m asking them now. I will join them,” Duterte said.

“I will ride on the boat where the admiral of the US is. I will drag along Carpio and the rest. When the Americans say, ‘We’re here now, ready,’ I will press them,” he added. The Seventh Fleet is based in Yokosuka in Japan.

Sarcastic

At Malacañang, presidential spokesman Salvador Panelo said the President was just being sarcastic when he made the remarks regarding the 1951 MDT with the US.

He said Duterte simply wanted to highlight the “absurdity” of Carpio’s and Del Rosario’s insistence that the Chief Executive take a bold stand against China’s provocations.

“Because he knows that you cannot invoke that treaty without any armed assault or attack against any of the parties in that treaty,” he said.

“He kept on saying that by way of putting into absurdity the criticism by the critics and detractors – and challenging them that in the event of any armed attack and the treaty will be operational, then these critics and detractors which the President has named should go with him in defending the West Philippine Sea,” Panelo added.

“And again, as I said, to show the absurdity of their position that we should be aggressively enforcing the arbitral ruling when the very effective method of getting whatever benefits we can achieve from the arbitral ruling could be gotten in the diplomatic negotiations,” he said.

Panelo added that Duterte’s statement allowing Chinese fishermen to fish in Recto Bank area was actually an assertion of the Philippines’ sovereign rights over the area.

“He’s right about it. If you claimed to be the owner and if you feel that you are the owner, it is the owner who gives the right to someone who seek your permission to fish,” he said.

Panelo defended anew Duterte’s stand vis-à-vis a Constitutional provision mandating protection and preservation of the country’s exclusive economic zone.

“But we have already explained that, right? We said that, that provision of the Constitution is subordinate to the earlier provision of the Constitution directing him to serve and protect the Filipino people,” he said.

“Moreover, as he explained, there are traditional fishing grounds and (Panatag) Shoal is one of them. Meaning, fishermen of other countries traditionally fish there and that is why those who have been there prior to the arbitral ruling, as the arbitral ruling says, can fish,” Panelo said.

Panelo noted that the previous administration may have made the wrong move when it raised the issue before an international arbitral court, which later declared Panatag Shoal traditional fishing grounds for all claimant countries.

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