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Another Confused And Biased Critique Of Duterte's China-US Policy

2021-07-16 15:37:11       source:NISCSS

May 29, 2021

This is in response to J.C. Gotinga's recent piece "Philippines : Duterte's Inconsistent Policy on South China Sea Hurts Manila". His article presents yet another confused and biased critique of Duterte's China policy.


There are two basic maritime disputes between China and the Philippines in the South China Sea - those over maritime jurisdiction and those over territory. China's historic claim to rights beyond 12 nautical mile territorial seas in the Spratlys have been discredited by an international arbitration panel. But China's claims to above high tide Spratly features and Scarborough Shoal-and their territorial seas-are just as valid as those of the Philippines.


This is an important distinction that seems lost on many commentators and even high officials in the Philippine government. The real Philippines’ complaint seems to be that the vessels are violating its claimed territorial waters - not its EEZ. Armed Forces Chief-of-Staff Lieutenant General Cerilito Sobejana said "We do not tolerate incursions in our territorial waters from anybody." 


Indeed, most of the issues stem from a series of disputes over ‘who owns rocks within 12 nm of where the vessels are and what they are doing’.  Perhaps the author has the same misconception as the Philippines Foreign Minister Theodore Locsin who insists that the features fall within the Philippines EEZ and that they are therefore "ours". But a country can-and many do-claim features and their territorial seas - in other countries’ EEZs.

As for the Whitsun Reef incident, the presence of the Chinese boats may have been in compliance with the Law of the Sea  based on China's claims to high tide features and their territorial seas, not its discredited claims to historic rights in maritime areas of the South China Sea beyond territorial seas. Indeed, Duterte's spokesperson Harry Roque may have been correct that the Chinese vessels at Whitsun Reef were not in the Philippines EEZ - if that is what he meant.


China also claims Whitsun Reef. Some sources say there are sand bars on the reef that remain above water at high tide. 


If so, they can be claimed as territory and are entitled to a 12 nm territorial sea. Again, if so, and the vessels were moored within 12 nm of them, then they were in a territorial sea around a disputed legal rock claimed by China, the Philippines and Vietnam. Whitsun Reef is also within 12 nm of Grierson Reef –a legal rock occupied by Vietnam – but also claimed by China - and thus within its claimed territorial sea.


After the boats dispersed as demanded, critics complained that the "maritime militia" vessels are "now scattered in an even wider area within the Philippines [EEZ]." If the Chinese vessels are fishing without authorization in the Philippines’ EEZ outside of 12nm from rocks that both claim, then they should indeed cease and desist. But as the author indicates, permission may have been granted.


If the boats are moving between China-claimed territorial seas, they do have the right of freedom of navigation in the Philippines EEZ.  And if they are anchored within 12 nm of its claimed features - including Thitu, their presence is legally justified.  


Contrary to the piece's assertion, Duterte's policy toward the U.S. and China is not unreasonable. Duterte likely thinks that American power in the region is waning and China's is rising. He recognizes that the Philippines will have to live with and get along with China for the long term - perhaps long after the U.S. presence and relative power in the region has diminished. He does not want the Philippines to get caught up  in the US-China struggle for dominance in the region. Charting a more neutral course between the two is his way of hedging.


Whether or not the Philippines should try to implement the arbitration decision depends on what one means by that. Chinese boats do have a right to be in their claimed territorial seas and to freedom of navigation in the Philippines EEZ. If it means preventing China from fishing in the Philippines EEZ,  or interfering with Philippine resources– related activities there, Duterte apparently believes that there is no present political way that he can get China to moderate its position. There is no international enforcement mechanism to implement the arbitration decision. The Philippines is no political, economic or military match for China. He is unsure if America will back up the Philippines in a conflict with China over remote disputed rocks - especially if the Philippines is seen as provoking it. His previous caution regarding deployment of the Philippine Navy - such as it is - and coast guard patrol boats may reflect this concern. Now he has yielded to the militarists by stepping up patrols. But this makes the situation all the more dangerous for the Philippines.


ASEAN and its members are not going to kinetically back the Philippines in a conflict with China. Those who think otherwise are living in a fantasy world. ASEAN - as an organization - cannot even unite on a stance regarding critical elements of the Code of Conduct let alone against China. China simply has sufficient political and economic power to prevent that. Indeed, some of whose members were unhappy at not being consulted before the Philippines filed its complaint against China and continue to oppose ASEAN's involvement in what they view as a bilateral dispute. 


Duterte's official position on the arbitration result, as stated before the UN General Assembly is that "The award is now part of international law, beyond compromise and beyond the reach of passing governments to dilute, diminish, or abandon,"but waiting for a more advantageous time to try to implement it.


The author praises President Benigno Aquino III's "hard line" stance against China. This –and his concern with the uncertainty of extension the US-Philippines Visiting Forces Agreement (VFA) reveals his bias.


The presence of US forces in the Philippines has always been controversial and asymmetrical. In 1947, the two countries signed the US Military Bases Agreement that allowed the US to establish and operate air and naval bases there. In 1951 the U.S. further strengthened its interest in Philippine political affairs by entering a Mutual Defense Treaty (MDT) with it. In 1991 the Philippines Senate declined to renew the bases agreement and US forces left the country. However, the two continued to have military cooperation under the 1999 VFA. In 2014, President Benigno Aquino signed a supplement to the VFA, the Enhanced Defense Cooperation Agreement (EDCA) – that allows a rotational presence of US troops and assets at Philippine military bases.

In recent years the MDT and the VFA/EDCA have become key to U.S. military strategy to maintain its dominance in the region vis a vis China.  Indeed, the Philippines is geographically integral to the US strategy of controlling the first island chain and encircling China. It also needs bases or ‘places’ there to provide in theater support for its fleet operations in the South China Sea, including medium range missiles.

But Duterte, who was elected in a 2016 landslide, has threatened to withdraw from the MDT. He has also threatened to withdraw from the VFA and delayed implementation of the EDCA. He at least wants the country to get proper compensation for the risk that entails.


US opposition to what it views as Duterte's pro-China policies is palpable.  A successor to Duterte will be chosen in the 2022 elections and the U.S. obviously has major security interests in the outcome. The MDT, the renewal of the VFA/EDCA and the Philippines/China relationship are looming ever larger as major issues in the elections. 


History tells us that US interference in Philippine politics cannot be ruled out.  Indeed, the US Central Intelligence Agency (CIA) has long been involved in Philippine politics. It ran the successful 1953 campaign of the Philippines 7th  President Ramon Magsaysay. It funded President Diosdado Macapagal as well as Raul Manglapus, the foreign secretary in President Corazon Aquino's Cabinet, and Emmanuel Pelaez, a former vice president and Philippine ambassador to Washington. As for President Benigno Aquino, he was proud of his CIA affiliations, though he spoke–perhaps naively– of having worked "with" rather than "for" the Agency.


As the author implies, there are many Americanophiles in high places in and out of government and, most worrying, the military, that are opposed to Duterte's move away from the U.S. and some are beating the drum for him to change policy or be removed. 


Many allege that Duterte is a dictator. But he allowed contradictory rhetoric and actions on this issue by his cabinet members and senior military officials. This and a disinformation campaign by his opposition has indeed caused some confusion. But sometimes confusion is the price of a democracy. A dictator would have quieted these dissident voices right away.


Regarding the upcoming elections, the opposition's hope - and perhaps that of the author– is that the Chinese ‘intrusions’ in Philippine waters in the South China Sea will become a prime issue in next year's elections and spur demand for military enforcement of Philippine claims and a return to a pro-US foreign policy. Perhaps this will happen. But if it does it will have serious negative consequences for an independent Philippine foreign policy and its relations with China.


Given the history of US involvement in Philippine politics, the author should be careful of what he may wish for.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China.