Dealing with China

Another blame game has erupted between our country and its tormentor in the West Philippine Sea (WPS), China. The thing that I have been fearing –Philippine and Chinese vessels colliding with each other – finally happened several nautical miles away from our Ayungin Shoal military outpost. Thus, the exchange of diplomatic protests and the trading of barbs between our countries in the past days.

President Marcos Jr. promptly called for a command conference after the China Coast Guard (CCG) and militia vessels hit two of our boats on a resupply mission to the BRP Sierra Madre. Defense secretary Gibo Teodoro Jr. blasted China for egregiously violating our exclusive economic zone (EEZ) and obfuscating the truth about China’s latest illegal activity. China’s Foreign Ministry, meanwhile, claimed it was our Philippine Coast Guard (PCG) vessels that dangerously bumped with CCG ships, which were conducting law enforcement measures in the area. The Ministry accused the Philippines of violating China’s territorial sovereignty and maritime rights and interests.

American intervention

Quick to join the fray, American President Joe Biden declared in a White House press conference that any attack on Filipino aircraft, vessels or armed forces would invoke the United States’ Mutual Defense Treaty (MDT) with the Philippines. Biden’s statement continues America’s about-face on its erstwhile policy of non-interference on issues related to disputed territories. It builds on the Bilateral Defense Agreement formulated in May, which states that an armed attack in the Pacific and South China Sea on both countries will trigger MDT commitments.

When the country lost control of the Panganiban Reef in 1995 and the Panatag Shoal in 2012 to China, the Americans did not come to our aid. Their reasoning then was that the WPS (Spratly Islands) fell outside the ambit of the 1951 Treaty. The MDT covers the metropolitan territories and the Pacific Island territories of both the Philippines and the US (Article 5). However, we cannot claim territorial jurisdiction over the Ayungin Shoal even if it is within our EEZ. We only have sovereign rights but not sovereignty over the atoll. Likewise, no international tribunal has ruled that the Philippines owns the other islands it occupies and controls in the WPS.

The big question is whether the MDT invocation will merit America’s congressional approval. As I have previously articulated, the absence of automaticity has hampered its enforcement. Militarily, the US cannot directly intervene in our affairs without the support of its Congress. Currently, the US is heavily invested and preoccupied with the conflict-torn Ukraine and Israel. Incidentally, the White House requested Congress for a $106-billion supplemental budget, a big chunk of which will go to both countries: $60 billion for Ukraine and $14 billion for Israel (ABC News).

Another $7 billion will fund its policy of deterrence and enforcement in the Indo-Pacific. Therefore, I am not surprised about America’s anti-China and anti-Russia stance in the region. True to its messianic complex, the US aims to save its regional allies from the economic and military snares of its long-time rivals. America wants to create an alternative to China’s so-called coercive lending practices. It seeks to shield allies from an increasingly assertive China and support countries in transition from the military equipment of Russia.

While the Indo-Pacific budget did not specifically mention Taiwan, I am pretty sure it has to do with thwarting China’s increasing threat to the island state. The budget request was also silent about funding support for the Philippines’ operations against China’s unlawful activities. I wonder how much of the budget will be allocated to our security and defense requirements. Anyone’s guess is as good as mine.

Armed attack?

Over the years, the Western and local mainstream media has practically painted China as a domineering tyrant, given its single-minded quest for ownership of all the WPS maritime features and waters. I cannot completely blame these media organizations. China has taken away the Panganiban Reef and the Panatag Shoal from us. In many instances, its CCG and other ships have attacked our Coast Guard vessels, Navy boats and fisherfolk with water cannons, laser beams and blockades. Instead of a proportional response, our country continues to exhaust diplomatic and legal channels to make China account for its maritime transgressions. 

It is the Philippines and not China that has always acted with restraint and professionalism. Therefore, I find it odd that the government has not fully tapped the expertise of our Ambassador to China, Jaime FlorCruz, to de-escalate the tension in WPS. He has lived in that country for almost five decades. He was educated in Peking University and was a former CNN bureau chief. As an authority on Chinese politics and culture, the Ambassador should be in the forefront of crafting policies and strategies concerning China and the WPS. Our President needs people like him as policy advisers. Let us not leave policy-making to individuals that do not advance the Sino-Philippine peace and cooperation.

But is the collision between Philippine and Chinese boats tantamount to an armed attack, especially on China’s part? Did China commit a crime of aggression by deliberately hitting the PCG vessels? In the landmark Nicaragua vs. United States, the International Court of Justice states that an armed attack not merely action by regular armed forces across an international border but also the sending by a State of armed bands on the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack had it been carried out by regular armed forces.

Moreover, the UN General Assembly Resolution 3314 (XXIX) defines aggression as the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any manner inconsistent with the UN Charter. The Rome Statute of the International Criminal Court, as amended in 2010, establishes that the crime of aggression means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of UN Charter.

While China’s recent belligerent action deserves our condemnation, we cannot claim that it is an armed attack on Philippine territory. We cannot retaliate through the use of unilateral force. We cannot justify collective self-defense and allow America to defend us. At this point, we can only rely on diplomacy and continued dialogue to resolve our maritime conflict with China.