by Ambassador Albert del Rosario, Chair, Stratbase ADR Institute
Four years ago or last July 12, 2016, as firm believers in the Rule of Law, Filipinos sought justice against the continuing abuses of China in the West Philippine Sea through the Arbitral Tribunal Award won in The Hague.
The Award upholds the rights of Filipinos under UNCLOS in the South China Sea. Thus, to enforce the Award is to render justice to Filipinos aggrieved by China’s seizure of our lands and waters, harassment of our soldiers, ramming of our fishermen, and the near-permanent destruction of our marine environment in the West Philippine Sea. It also gives justice to our ASEAN neighbors who were similarly aggrieved by China’s malevolent actions.
While President Duterte decided to shelve the Award in expectation of loans and investments from China, he also promised the Filipino people to raise the Award at a “proper time.” During his visit to China in 2019, the President claimed that he raised the Award before Chinese President Xi Jinping. Expectedly, President Duterte was rebuffed by the Chinese President.
In the remaining years of his term, we believe that President Duterte may still have the opportunity to fulfill his promise to the Filipino people to raise the Award: this time, not before Chinese President Xi Jinping, but before the world.
That said, what must we do?
First, the Award must be taken off the shelf and be raised before the 75th session of the United Nations General Assembly (UNGA) this coming September 2020. This will be an opportune moment because the theme of the upcoming UNGA session is the commitment to multilateralism. This is when the leaders of 193 countries will troop to the UN to promote their positions before the global community of nations. This is when we will rely on the UN General Assembly to serve as not only the primary promoter of the rule of law but also the court of world public opinion.
We believe that the Award has multilateral support because it benefits the coastal States of the South China Sea (i.e., Vietnam, Malaysia, Indonesia and Brunei), whose lands and seas are encroached upon by China’s nine-dash line. The Award also benefits the rest of the other countries in the world like the United States, the European Union and Japan because it affirms the freedom of navigation and overflight in the South China Sea. We welcome the fact that, just more than a month ago, the US and Indonesia invoked the Award against China in relation to Malaysia’s submission on its extended continental shelf.
Second, we should take concrete steps to consolidate support and assistance from the US, Australia, EU, Japan, ASEAN and other responsible nations. Most of the countries around the world believe in the Rule of Law and UNCLOS. As a product of UNCLOS, these countries believe that the enforcement of the Award is the legitimate process of resolving the maritime dispute in the South China Sea, not China’s method of bullying and deceit.
Third, we must make Chinese officials criminally accountable for having inflicted the most massive, near-permanent and devastating destruction of the marine wealth in the South China Sea. This finding has been unanimously upheld by the Award. Thus, former Ombudswoman Conchita Carpio Morales and I submitted a Communication to the International Criminal Court on March 13, 2019 to show that President Xi Jinping, Foreign Minister Wang Yi and former Chinese Ambassador Zhao Jinhua, among others, committed crimes against humanity for destroying the livelihood and food security of Filipinos.
This case is a work-in-progress as we will complete our submission regarding the concerns raised by the ICC prosecutors regarding ICC’s jurisdiction.
We urge citizens of Vietnam, Malaysia, Indonesia and Brunei to submit similar communications to the ICC because they too have been affected by China’s systematic and wanton environmental destruction. Under ICC rules, any person—even citizens of the US, Australia and Japan—can submit information and evidence regarding the systematic and wanton environmental destruction committed by Chinese officials in the South China Sea.
Fourth, we also need to make China pay monetarily for its crimes. China mercilessly destroyed the breeding grounds of fish and other marine life in the Spratlys. More than half of our country’s 110 million Filipinos live in coastal communities, relying on marine resources for their daily needs. Where will we get our food when we run out of fish?
The University of the Philippines Marine Science Institute conservatively estimated that our country is losing at least P33.1 billion annually from our damaged reef ecosystems due to China’s reclamation activities and illegal fishing operations. This sums up to P231.7 billion since the start of 2014 (around the time China started dredging) until this year. This money may be used to save our fish and rehabilitate the marine ecosystem destroyed by China in our waters.
Philippine authorities have the right to seize assets and properties owned by Chinese State in the Philippines to satisfy China’s debt to the Filipino people. These Chinese assets are subject to Philippine jurisdiction by the fact that they are located in the Philippines.
The lawful seizure of Chinese assets in an injured State’s jurisdiction to satisfy what China owes for damages should be considered by Vietnam, Indonesia, Malaysia and Brunei which are similarly affected by China’s systematic and wanton environmental destruction. It should also be considered by others like the United States, Australia and Europe which claim to have been injured by China in the context of the COVID-19 pandemic.
Fifth, it is time that our country develops a minimum credible defense posture, rejoin our partners in conducting joint patrols in the South China Sea and work to strengthen our alliance with the US. As a self-respecting country, we need the capacity to protect our territory and defend ourselves against external threats like China’s incursions, as mandated by our Constitution.
To do this, we need to develop our own defense assets and call upon like-minded allies like the US, Australia and Japan, which share our respect for the Rule of Law and the values of freedom and democracy. No other nation can support us more than we do ourselves, and there can be no unity over the right course of action unless we initiate this unity.
Sixth, to the deep dismay of our people, we are still succumbing to threats of force including a threat of war. It is a grave insult to our forefathers who died and fought for our country’s self-respect and independence if we only cower in fear before such threats. It is also a grave insult to our children and grandchildren if we give away our waters and territories in the face of such threats.
It may be high time for our government to assert our rightful position by relying on the skill, courage and patriotism of our Navy and Armed Forces which are capable of developing a credible minimum defense posture against any bully or aggressor, whoever that might be.
As we had previously said, we are opposed to war—as we should be. But if threatened by the use of force, we should be ready to inflict, at the very least, a bloody nose on any attacker who is out to harm us.
It is in this light that we also welcomed the recent clarification of the US as to when the Mutual Defense Treaty (MDT) can be invoked. Last year, US State Secretary Mike Pompeo declared that “[a]s the South China Sea is part of the Pacific, any armed attack on any Philippine forces, aircraft, or public vessels in the South China Sea will trigger mutual defense obligations under…our Mutual Defense Treaty.”
Earlier this week, Secretary Michael Pompeo added the following:
“The United States champions a free and open Indo-Pacific. Today we are strengthening U.S. policy in a vital, contentious part of the region – the South China Sea. We are making clear: Beijing’s claims to offshore resources across most of the South China Sea are completely unlawful, as is its campaign of bullying to control them. In the South China Sea, we seek to preserve peace and stability, uphold freedom of the seas in a manner consistent with international law, maintain the unimpeded flow of commerce, and oppose any attempt to use coercion or force to settle disputes. We share these deep and abiding interests with our many allies and partners who have long endorsed a rules-based international order.”
To Secretary Pompeo, we profer our deep thanks for the foregoing support of the United States.
Seventh, we respectfully urge our Government to engage as official government advisor, Justice Tony Carpio, for his unparalleled wisdom, expertise and sound judgement on the South China Sea Dispute. Throughout the years, we have seen that Justice Carpio’s work on this issue has always been for the country’s interest, with the goal of protecting our lands and seas for generations of Filipinos.
Eighth, and finally, our government must listen to its people. Nine out of ten Filipinos believe that it is important for the Philippines to regain control of the artificial islands built by China in the West Philippine Sea. Similarly, nine out of ten Filipinos also believe that it is important to strengthen the military capability of the Philippines, especially its navy. Furthermore, eight out of ten Filipinos believe that the South China Sea issues should be brought to the UN General Assembly.
It is time for Filipinos to unite and demand what is due from China. We therefore beseech our Government to lead us in this endeavor, as representatives of the Filipino people aggrieved by China’s actions. We should not be hoodwinked into giving up our rights by the mere prospect of Chinese money. Seeking accountability for China’s atrocities in our land and waters is not waging war against China; it is taking what Filipinos justly deserve under the Rule of Law.