Rod P. Kapunan (Special Commentator)
It seems that we have an endless dispute with China over claims in the South China Sea. This issue was aggravated after the Permanent Court of Arbitration (PCA) nullified China’s claim of the so-called Nine (9)-Dash Line coupled by the fact that we could not enforce that decision. The decision has become more of a euphemism for the PCA failed to demarcate areas what should be handed to the Philippines as claimant considering that big power politics have complicated the peaceful cooperation and utilization of the resources in an area that has become a strategic passageway for international shipping.
The latest raw involved is the approval by China of its Coast Guard Law. In brief, the law means that no foreign vessel could freely navigate in areas designated by China as “exclusion zone”; demolish structures built in reefs claimed by it; and inspect vessels navigating its territorial waters. The second involves the entry of China’s research ship Jia Geng off the coast of Catanduanes allegedly without clearance from the Philippine government and the subsequent refusal by its crew to allow the Philippine Coast Guard to inspect the vessel to comply with the COVID-19 protocol.
Judging the two issues, the Coast Guard Law passed by China is an application of the general principles of international law. It simply prohibits ships from passing areas designated as its territorial waters. What makes the issue sensitive is the threat to demolish structures built within those reefs by claimant countries. This means that ships, particularly naval ships from countries with no coast line in the SCS, would be prevented from patrolling the waterway; from exploiting mineral resources, and to impose its rules on navigation which could be treated as an exercise of sovereignty.
This column concurs that “The use of force under international law is generally prohibited.” To authorize China’s coast guard to fire at foreign vessels could escalate tension in contested waters.” As Roque added, “China’s laws must follow obligations under the United Nations Convention on the Law of the Sea (UNCLOS), which only allows the use of force in “well-defined exceptions” like self-defense and authorized by the UN Security Council. For China to authorize its coast guard to fire on foreign vessels is generally prohibited,” he told reporters. To demolish structures built on the reefs, or to board and inspect vessels navigating on its territorial waters is rather questionable. Permanent structures built by other countries are assertions of physical occupation akin to claim of sovereignty. Countries would vigorously object to alteration as to apply the decision of the PCA could result in bellum injustum or unjust war. As Deng Xiao Peng would put it, let time heal to resolve the problem as when he resolved the integration Hong Kong and Macau with China under the concept of “one government under two systems”.
There is no question that every state has the right to pass a law for its own domestic observance. The test however is on how other countries would react. When a domestic law is implemented to affect other countries, it is no longer a matter of who is right but touches on the sensitive issue of sovereignty. This is the reason why countries often submit their dispute or differences for arbitration to avoid war. In fact, the use of force even in the guise of enforcing international law is prohibited because the consequence is unimaginable. Such act could lead to war. This explains why many say the provisions in China’s Coast Guard Law can be said to be mere suppositions of what will happen should there be violation. Yes, violation of China’s territorial waters, enforcement of maritime laws or UN Security Council resolution, or interdicting smuggling, sale of arms, prohibited drugs and human trafficking are of universal application but there are gray areas that bear a shade of sovereignty like demolition of structures on any of the islands or reefs or the boarding of vessels or arresting crew members outside of its territorial waters.
No specific state was mentioned in that domestic law. But as far as China is concerned, their Coast Guard Law is purely for domestic law purposes that cannot be interpreted to interfere with other countries. These are theoretical equations on the possibilities that will happen in the SCS unless other countries would claim that their sovereignty was violated.
All that Roque said “…there was a “probability” the Philippines could take China to court again over its Coast Guard Law “but the decision on whether or not to actually do so will be dictated by national interest, not only of the Philippines, but also of the different ASEAN countries.” He said the matter “would be left to the Department of Foreign Affairs but not before sharing his opinion that “we need to show that there is an actual case or controversy” with the enforcement of China’s new law.”
On the permission to seek shelter, the burden lies with the Department of Foreign Affairs that the research vessel of China was without entry permit. It must be pointed out that on January 29, the Chinese embassy requested clearance to allow its ship to take shelter off Catanduanes due to bad weather. The Chinese vessel was not prevented, and can never be branded an intruder. Rather, the Chinese vessel refused the coast guard personnel to board because of health protocol caused by COVID-19.
The local media being easily agitated by US propaganda played up the story that a Chinese vessel “intruded” into our territory without clearance and/or permission from our coast guard. Incidentally, the US navy was aware of the Chinese vessel and in fact the China Maritime Studies Institute of the US Naval War College was monitoring its movement but kept silent.
There was confusion because Secretary Locsin failed to promptly forward the request of the Chinese embassy to the Philippine Coast Guard. Instead, Locsin castigated Roque to “lay off foreign affairs.” Maybe it was an attempt to deflect responsibility. The DFA chief was curt in reminding Roque on matters about the DFA” although the issue about the Chinese vessel was different from the approval by China’s National People’s Congress of its Coast Guard Law.
By making an issue against secretary Roque, Locsin avoided answering why he failed to promptly communicate the Chinese request to the PCG. Locsin was even sarcastic saying that “Roque is not competent to speak for foreign affairs in the Philippines.” He said, “I am not listening to Harry Roque. Love the guy but he’s not competent in this field. We do not go back to the Hague. We might lose what we won. Harry, lay off. ” Locsin’s knee jerk reaction exposed how our officials could not get their axe together on matters involving simple request for
maritime shelter. Besides, whether or not a typhoon did happen, Philippines is obliged to provide the necessary humanitarian assistance to save life at sea because China is a member of the UNCLOS and the International Convention for the Safety of Life at Sea (SOLAS).
It seems the DFA headed by Locsin was surprised why a Chinese vessel suddenly popped out off the coast of Bato, Catanduanes. In fact, since January 25 the US has been monitoring the vessels indicating that it entered the country’s exclusive economic zone. Ryan Martinson, an assistance professor at the China Maritime Studies Institute of the US Naval War College even posted on Twitter last Jan. 27 that Jia Geng was located 130 nautical miles east of Samar Province.
The Chinese ship left Gaogi Wharf in Fujian Sheng last Dec. 23 and passed through the high seas between Taiwan and northern Luzon before it entered the Pacific. The ship sought clearance from the Philippine government last Jan. 30 to anchor in Cabugao Bay from Jan. 29 to Feb 2 “due to “weather and sea conditions.” According to the data tracking station shared to Inquirer, Jia Geng has been conducting research in the northwest Pacific Ocean and was running at 1 knot for a few days before entering Philippine waters. It was on Jan. 30 when Commodore Armand Balilo informed the Department of Foreign Affairs that the Chinese embassy requested for clearance to take shelter but which request remains pending until the issue reached the desk of the local media who made a feast to generate bad image against China.
Under Chapter VI of the Coast Guard Law of China, it provides in particular Articles 46 to 51 the circumstances when police equipment and weapons may be used under exceptional circumstances which is for purely defensive purposes. What added confusion is the insistence by that “the Arbitration Tribunal has no jurisdiction over the present case to determine directly or indirectly the sovereignty of claims, which the Philippine is entitled to enjoy and exercise under the Convention. The premise of this claim must be that the spatial extend of the Philippines’ maritime jurisdiction is define and undisputed, and that China’s actions have encroached upon such defined areas.” (p. 534, “South China Sea Arbitration Awards: A Critical Study,” China International Publishing House, Beijing 2018). To quote that relevant is that portion of the study made by the Chinese Society of International Law: “With regard to disputes concerning territorial sovereignty and maritime rights, China has always maintained that they should be peacefully resolved through peaceful negotiations between the countries directly concerned.” (Ibid., p. 535) It may appear that the tenor of the law is indicative of China’s reaction to the heighted anti-Chinese rhetoric, and this is most evident how Beijing is showing some kind of disfavour to countries willing to joined the anti-China bandwagon orchestrated by Preident Trump.
Countries that have conflicting claim with China seem to realize that the anti-Chinese drumbeating of former President Trump still reverberates loud and clear, and the new coast guard law is a cue for other countries to make some fine tuning of its policy towards China for geographically it is here to stay. However, the optimist says that China’s policy even with the approval of the new law will not affect China’s attitude its overall towards countries in the South China Sea. The policy resonates to its basic policy of multilateralism, opening up and economic integration not to say that maintaining good neighborliness is an old and tested Chinese adage. The stakes are high that improving ties is a much better option than keeping a wedged to prove our loyalty to an old ally that appears to be more in need in wanting to keep our alliance to derail economic prosperity and development.
In fact, drumbeating the anti-China would soon faint because an outmoded political propaganda especially now that the Trump administration would have less impact. The Philippines have no much but to take advantage of the offer that could make the Philippines at the new maritime silk road to the Pacific Ocean and onward to South America for all to realize the Chinese adage of a win-win diplomacy for all.