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Walking on water for the UNCLOS ruling

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Amelia H. C. Ylagan-125

Corporate Watch

No, he did not “jetski to a disputed island occupied by China in the West Philippine Sea to plant the Philippine flag and stake the country’s claims” — a campaign promise made in 2016.

When Rodrigo Duterte was elected president, he “tried to forge closer ties with Beijing in an effort to court Chinese money and investments into the Philippine economy. The Duterte administration has also played down a 2016 United Nations-backed tribunal ruling that invalidated most of China’s expansive claim to the disputed waters,” the Philippine Star of March 1, 2018 commented. Quoted in the same article, Duterte dismissed his campaign comment as just a joke. “It’s just talk. I’m surprised you believed it,” he said before members of the Philippine National Police’s elite SWAT units.

But it was not just talk that our President favored China as a friend and ally. “So, I would say, I need China. More than anybody else at this time of our national life, I need China. I will not say something which is not true,” he said, as quoted by GMA News online on April 9, 2018. “I just simply love Xi Jinping. He understood, he understands my problem and he is willing to help,” Duterte said in a press conference in Davao before leaving the country to China to attend the Boao Forum for Asia (cnn.com, April 9, 2018).

“In his fifth State of the Nation Address (2020 SONA) Duterte again stressed that he could not afford to go to war against Beijing over the South China Sea dispute, calling himself “inutile” in that aspect, CNN Philippines reported on July 28, four months into the COVID-19 pandemic quarantines. The President already said this in his fourth SONA — that he cannot go to war with China over the West Philippine Sea because China is already “in possession” of the strategic waterway. But National Security Adviser Hermogenes Esperon, Jr. then immediately sought to clarify that the President’s remarks that China is “in possession” of the West Philippine Sea, actually should read “in position” in the disputed waters — all due to the President’s regional accent (Philstar.com July 23, 2019). Was Esperon the jester?

But it cannot be just jesting and joking about such a serious issue as the Philippine’ territorial and economic rights over the sea and its boundaries — already settled in its favor against China by the United Nations Permanent Court of Arbitration in July 2016. Efforts toward this landmark ruling were by the team of then Associate Chief Justice Antonio T. Carpio, Ombudsman Conchita Carpio-Morales and Ambassador Albert del Rosario in the administration of Benigno S.C. Aquino III and the ruling awarded early in the Duterte term.

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In observance of the fourth anniversary of the UN award, and close to Duterte’s COVID-time SONA, the indefatigable Social Weather Station (SWS) asked a universe of about 1,500+ representative respondents if “the Philippine government should assert its rights over the islands in the West Philippine Sea as stipulated in the 2016 decision of the Permanent Court of Arbitration.” Seventy percent agreed and 13% disagreed, for a net agreement score of +57, classified by the SWS as “extremely strong” as reported by the Philippine Star of July 15, 2020. (The nationwide net agreement score, however, was higher at +82 in June 2019.)

A separate question was asked of the same 1,550 respondents, “(Should) the Philippines form alliances with other democratic countries that are ready to help us in defending our territorial rights in the West Philippine Sea (?)”. Four out of five people polled said the country should form alliances in light of what was happening in the West Philippine Sea (CNN Philippines, July 14, 2020).

In a maritime forum held in Makati in 2018, former ambassador Wilfrido Villacorta described the divisiveness created by the West Philippine Sea issue, and the way Duterte treats it as a non-issue. “Our country is so polarized now. If you disagree with [Supreme Court Senior Associate Justice  Antonio] Carpio, then you’re pro-China and [pro]-Duterte supposedly. And if you’re pro-enforcing the arbitral tribunal, then you are pro-US or pro-opposition,” he said. “Camps are often divided between President Rodrigo Duterte and his predecessor, former President Benigno Aquino III. The ex-president had relied heavily on the US, while Duterte is swinging hard towards China,” a Dec. 8, 2018 Rappler analysis said.

Imagine the surprise of all on Tuesday, Sept. 22, when at the online 75th session of the United Nations General Assembly, President Duterte read from a prepared speech and unblinkingly shifted a full 180 degrees on the stance he had obstinately held for four years — his intransigent resignation over his perceived unenforceability of the UNCLOS ruling and his fear of war with China.

“The Philippines affirms that commitment in the South China Sea in accordance with UNCLOS and the 2016 Arbitral Award. The Award is now part of international law, beyond compromise and beyond the reach of passing governments to dilute, diminish or abandon. We firmly reject attempts to undermine it,” Duterte said to the UN, quoted by Interaksyon on Sept. 24. He also acknowledged the “increasing number of states” that have shown support for the award. France, Germany, and the UK have recently issued a joint verbale to the UN rejecting China’s sweeping claims in the disputed waters, the Philippine Daily Inquirer of Sept. 23 said. What he declared was almost exactly the SWS questions asked of the representative Filipinos, who said that was what they felt about the West Philippine Sea (WPS) issues.

Justice Carpio, noted for his staunch leadership in the WPS issues, was the first to welcome President Duterte’s unexpected assertion to the UN General Assembly of the 2016 arbitral award that struck down China’s massive South China Sea (SCS) claims. It was Justice Carpio and former Foreign Secretary Albert del Rosario who suggested raising the Hague ruling before the UN early last year as a way for Duterte to rally world opinion behind the decision.

“I fervently hope that this is the policy that the Duterte administration will implement across all levels — in the protection of our exclusive economic zone in the West Philippines Sea, in the negotiations for the Code of Conduct (CoC), and in gathering the support of the international community for the enforcement of the arbitral award,” said Carpio in Rappler on Sept. 23. In other words, Duterte must now “walk the talk.”

In his column in the Inquirer last week, Justice Carpio strongly advised that the Arbitral award must be specifically cited in the CoC to counter China’s obvious efforts to delete mention of such an arbitral award in the document. “Clearly,” Carpio wrote, “China’s objective is to reverse the arbitral ruling through the CoC. (If China succeeds in deleting any mention of the ruling) it can trumpet before the world that since its position prevailed in the CoC, then the arbitral ruling is not in accordance with international law and the UNCLOS [United Nations Convention on the Laws of the Seas],” he added.

Maritime law expert and University of the Philippines professor Jay Batongbacal told Rappler that “a nervous Philippine military might be perceiving a ‘real possibility’ of Chinese action in the South China Sea” and that in the overheating power play between the US and China, Duterte might have trimmed his political hedge by suddenly affirming the Philippine arbitral win to the UN General Assembly. Batongbacal also warned in an ANC interview last week that despite the arbitral award, the problem remains on what to do with the islands and reefs within the Philippine EEZs, installed with military equipment by China. How to drive China out — we must now ask our President, who has judged himself “inutile” against China in our territories?

No, Rodrigo Duterte did not just jetski in the West Philippine Sea to claim to plant the Philippine flag and stake the country’s claims in contested territories, as he joked he would do during his campaign in 2016. Duterte has come miraculously by “walking on the water” (maybe like Jesus Christ in the gospel).

“But He said to them, It is I; do not be afraid.” (John 6:20)

Filipinos must have faith.

 

Amelia H. C. Ylagan is a Doctor of Business Administration from the University of the Philippines.

ahcylagan@yahoo.com

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