In first under Trump, U.S. warship challenges Beijing's claims in South China Sea

The Arleigh Burke-class guided-missile destroyer USS Dewey prepares for a replenishment-at-sea in the South China Sea May 19, 2017. Picture taken May 19, 2017. Kryzentia Weiermann/Courtesy U.S. Navy/Handout via REUTERS

By Idrees Ali and Phil Stewart

WASHINGTON (Reuters) - A U.S. Navy warship sailed within 12 nautical miles of an artificial island built up by China in the South China Sea, U.S. officials said on Wednesday, the first such challenge to Beijing in the strategic waterway since U.S. President Donald Trump took office.

The officials, speaking on condition of anonymity, said the USS Dewey traveled close to the Mischief Reef in the Spratly Islands, among a string of islets, reefs and shoals over which China has territorial disputes with its neighbors.

The so-called freedom of navigation operation, which is sure to anger China, comes as Trump is seeking Beijing's cooperation to rein in ally North Korea's nuclear and missile programs.

Territorial waters are generally defined by U.N. convention as extending at most 12 nautical miles from a state's coastline.

One U.S. official said it was the first operation near a land feature which was included in a ruling last year against China by an international arbitration court in The Hague. The court invalidated China's claim to sovereignty over large swathes of the South China Sea.

The U.S. patrol, the first of its kind since October, marked the latest attempt to counter what Washington sees as Beijing's efforts to limit freedom of navigation in the strategic waters.

The United States has criticized China's construction of the man-made islands and build-up of military facilities in the sea, and expressed concern they could be used to restrict free movement.

U.S. allies and partners in the region had grown anxious as the new administration held off on carrying out South China Sea operations during its first few months in office.

Last month, top U.S. commander in the Asia-Pacific region, Admiral Harry Harris, said the United States would likely carry out freedom of navigation operations in the South China Sea soon, without offering any details.

Still, the U.S. military has a long-standing position that these operations are carried out throughout the world, including in areas claimed by allies, and they are separate from political considerations.

The Pentagon said in a statement it was continuing regular freedom of navigation operations and would do more in the future but gave no details of the latest mission.

"We operate in the Asia-Pacific region on a daily basis, including in the South China Sea. We operate in accordance with international law," Pentagon spokesman Captain Jeff Davis said in the statement.

U.S.-CHINA RELATIONS

Under the previous administration, the U.S. Navy conducted several such voyages through the South China Sea. The last operation was approved by then-President Barack Obama.

China's claims to the South China Sea, which sees about $5 trillion in ship-borne trade pass every year, are challenged by Brunei, Malaysia, the Philippines, and Vietnam, as well as Taiwan.

The latest U.S. patrol is likely to exacerbate U.S.-China tensions that had eased since Trump hosted Chinese President Xi Jinping for a summit at the U.S. leader's Florida resort last month.

Trump lambasted China during the 2016 presidential campaign, accusing Beijing of stealing U.S. jobs with unfair trade policies, manipulating its currency in its favor and militarizing parts of the South China Sea.

In December, after winning office, he upended protocol by taking a call from the president of self-ruled Taiwan, which China regards as its own sacred territory.

But since meeting Xi at his Mar-a-Lago resort, Trump has praised Xi for efforts to restrain North Korea, though Pyongyang has persisted with ballistic missile tests despite international condemnation.

U.S.-based South China Sea expert Greg Poling of the Center for Strategic and International Studies, said the operation was also the first conducted by the United States close to an artificial feature built by China not entitled to a territorial sea under international law.

Previous freedom of navigation operations have gone within 12 nautical miles of Subi and Fiery Cross reefs, two other features in the Spratlys built up by China, but both of those features are entitled to a territorial sea.

Mischief Reef was not entitled to a territorial sea as it was underwater at high tide before it was built up by China and was not close enough to another feature entitled to such a territorial sea, said Poling.

He said the key question was whether the U.S. warship had engaged in a real challenge to the Chinese claims by turning on radar or launching a helicopter or boat -- actions not permitted in a territorial sea under international law.

Otherwise, critics say, the operation would have resembled what is known as "innocent passage" and could have reinforced rather than challenged China's claim to a territorial limit around the reef.

(Reporting by Idrees Ali and Phil Stewart; Additional reporting and writing by Matt Spetalnick and David Brunnstrom; Editing by Cynthia Osterman and Sandra Maler)

Occupation with consent

AS EASY AS ABC By Atty. Alex B. Cabrera (The Philippine Star)

If occupying and building artificial islands within Philippine territory were a commercial deal, we would have done a valuation – what did they gain in exchange for what we gave up? Well, we have not given anything up yet, but we haven’t exactly been paid at all, either.

In an actual business valuation of a private company (which is done when an investor is coming in, or when the business is about to be sold), we look at a few things, such as physical assets, profitability and sustainability, cash flow and liquidity, and its market and intellectual properties.

The other thing that is quite important though is establishing the value of the business after the investor comes in or after it is bought, in the hands of the buyer. There could be a huge strategic value to the buyer’s business, and there could be a lot of synergies. As the seller, you would want to share in the value of that synergy. As a negotiator, if you can estimate in dollar terms what the strategic value of your business is to the investor, you can have leverage in negotiating for a better price.

The Jollibee-Mang Inasal deal fascinated people because Jollibee bought its Mang Inasal stake (the initial 70 percent) at three times what was offered by one potential buyer. The synergistic value to Jollibee was obvious because before the deal, Mang Inasal stores were already side by side with Jollibee’s. (And Jollibee loves to do that with McDonald’s.) The combined Jollibee-Mang Inasal offering was a bigger draw, and more importantly, the revenue is now in the same pocket after the deal. (Now, I suddenly miss that palabok, and that spiced chicken barbecue over rice, but that is not the point here.)

So, theoretically, if the value of your standalone business is 100, and to the buyer, with synergies and all, it is worth 1,000, you know you can get a bit more even if you are already offered 300.

The situation of the artificial islands built by China as being within Philippine territory (or most of it are) is already official as ruled upon by the UN Arbitral Court at The Hague. Just a brief refresh: the UN Tribunal has said that China has no historical rights because while they have always claimed it historically, other claimant states, especially the Philippines, do not agree with China’s claims.

To top it all, there is the international Law of the Sea that shows that China is way off the mark. Vietnam is about a bit more than the benchmark, at 200 miles away from the Spratlys, and Malaysia has an overlapping claim with the Philippines. To be fair, we only claim about seven “islands” out of the hundred there, but we want our 200-mile exclusive economic zone respected.

Assuming that occupation is consensual and not by coercion, they would need to give compensation to the Philippines for the tons of fishes, the oil and natural gas that are in there. (The US Energy Information Administration (USEIA) estimates that the South China Sea contains approximately 11 billion barrels of oil and 190 trillion cubic feet of natural gas in proven and probable reserves.)

You can count and conclude that the strategic value to China is bigger because they have bigger ships for fishing, more fishermen out of their much, much bigger population, better-equipped to extract the oil and natural gas in the area, and – very important to them – the military positioning and defense that the South China Sea offers.

Economically, and militarily, they simply have more at stake there than the Philippines, with one big “but”. The territory, within the 200-mile exclusive economic zone, is ours.

Sure, it is encouraging that investments, financing, and tourists are coming in or are promised by China. Allow me though to sound a little bit ungrateful here just to bring in a point. The investments have dividends for the investors, the trade deals benefit both countries, and the financing helps in the trade and even gets Chinese companies a piece of the action, and Chinese tourists know it is more fun in the Philippines. My point is, these are hardly compensation for the West Philippine Sea.

The reality is, they will not remove that structure they already built. This cuts out our work for us: we need to put in the Code of Conduct that is not inconsistent with the international Law of the Sea, secure just compensation for the Philippines, secure at least co-use and co-exploration, and rule against militarization of the islands. Let’s make it consensual and be mindful of what should be outside the commerce of men, like the preservation of marine life.

Regarding the Scarborough (Panatag) Shoal, which is figuratively a stone’s throw away from Subic, I guess we cannot be blamed for being suspicious about negative pregnant statements. When China said there were no radar systems there, could they mean that some other system was being developed there instead? After all, they did insist in the beginning that the artificial islands in the Spratlys were for marine research, and not to support a sturdy, permanent aircraft carrier with multiple runways.

I would believe the President when he said that he made no secret deal regarding Panatag, or the Spratlys for that matter, because what comes first in the job description of the President, as a civilian, is to lead the military in defending Philippine territory. We can start by sending erring anti-narcotics policemen to man a post in the Panatag Shoal. If their blood spills there during a standoff, they would have died not as villains, but as heroes.

* * *

Alexander B. Cabrera is the chairman and senior partner of Isla Lipana & Co./PwC Philippines. He also chairs the Tax Committee of the Management Association of the Philippines (MAP). Email your comments and questions to aseasyasABC@ph.pwc.com. This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.

Primer on Philippine maritime areas

I am pleased   to send  herewith a  copy  of  the  “Primer”  I prepared   on  “The  Ocean  Space   or  The  Maritime   Area  of  the Philippines  (Including  the Seabed  and Subsoil  and  their  Air Space under the Law of the Sea Convention  [particularly Part IV], the Philippine  Constitution  and Relevant Laws)”.

The Primer is intended to inform of the maritime areas over which the Philippines  has  sovereignty,  sovereign  rights  or jurisdiction, principally its territorial sea, the contiguous zone, its exclusive economic zone and the continental shelf.  For convenient reference, the pertinent provisions of the Law of the Sea Convention (LOSC),  the   Philippine Constitutions   and   relevant   statutes   are quoted.

Far too frequently opinions and views are expressed,  not in accord even with explicit provisions  of the LOSC.  A recent example are views on the Benham Rise, a part of the extended continental shelf of the Philippines.

It was my privilege  to  have  been  a  vice chairman of  the Philippine delegation  to the Law of the Sea Conference,  initially in the  Seabed  Committee, which  convened in 1968,  and  in the  United Nations  Conference  on  the Law  of  the  Sea,  which   convened  in December 1973.   The Law of the Sea Convention was adopted by the United Nations in 1982, and it entered into force in 1994.

Some observations are made on the Arbitral Award  on  the Philippine Claim  of  July 12, 2016, particularly  in  relation   to  the tensions  in  the  South  China  Sea  and  how  the  administration of President  Duterte  is addressing  its enforcement  and overall relationship with China.

It is my hope that the Primer will contribute to a more enlightened and   productive exchange of   views   in   regard the problems  facing   the  Philippines  in  protecting  and  enhancing  its rights over the maritime areas over which it has sovereignty or jurisdiction.

Estelito P. Mendoza

source:  Business Mirror

Get It Real: The Arroyo/Mendoza gospel and Carpio’s book

One is not sure why lawyer (for Marcos and cronies), former solicitor general and former Pampanga governor Estelito Mendoza has jumped into the conversation on the Philippines’ maritime issues with China, especially since he was quoted as saying that there are currently “too many conversations” on the issues. But he has jumped in with a big splash, launching a “primer” (his description) titled “The Ocean Space or the Maritime Area of the Philippines” in a press conference held at the House of Representatives.

How did he manage that location given that he is not a member of the House? Well, because his costar was none other than former president and now Pampanga Rep. Gloria Arroyo, who was in turn supported by her erstwhile executive secretary, Eduardo Ermita.

That press conference, from the quotes in the media reports, essentially blamed Arroyo’s successor, P-Noy Aquino, for China’s buildup of infrastructures (island-building) in these here parts. How? According to Mendoza, China itself said so. It categorically stated that the Philippines’ case against China in the Permanent Court of Arbitration (in The Hague) had provoked its island-building. Mendoza said there was “relative quiet and peace” during the Arroyo administration. In apparent support of Mendoza, Arroyo chimed in three times that China’s artificial islands were all built during P-Noy’s term.

Get the logic?  If the Philippines hadn’t brought up the case in the first place, China would not have done what it did (spending all that money to build all those structures, reclaiming the land, and destroying the environment). Thus, it was all P-Noy’s fault. We shouldn’t have challenged China at all.

Gott im Himmel. The gospel according to Arroyo/Mendoza. China’s actions have all been in reaction to the Philippines’ actions. It had no global strategy at all. So if we had just kept quiet, there would be peace now, and President Duterte would not be facing this “most difficult problem.”

This scenario is not only logically flawed (e.g. post hoc: The buildup started after P-Noy, so he must have caused it), there are factual errors, too.  The Trump-Duterte syndrome is spreading very fast.

Thank heaven we have Justice Antonio T. Carpio’s new e-book, “The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea.” It is going to be launched soon, and it can be freely downloaded. And it tells you everything about the matter, in a very simple, understandable manner, so there is no excuse for not reading it, and getting the facts straight. The best of research.

Let’s see what Carpio’s book can tell us about the Arroyo/Mendoza gospel:

Well, it turns out that China first brought to the world’s attention its nine-dash line (which it adopted in 1948) in 2009—in protest against Malaysia and Vietnam’s extended continental shelf (ECS) claims. Notice: 2009 was during Arroyo’s watch.

What are the ramifications of China’s nine-dash line? Asean countries would lose anywhere from 30 percent to 80 percent of their exclusive economic zones (EEZs). The Philippines, in particular, would lose 80 percent of its EEZ comprising about 381,000 square kilometers of maritime space including the entire Reed Bank and part of the Malampaya gas field, and 100 percent of its ECS.

Malaysia and Vietnam lost no time in protesting this. Arroyo didn’t do anything about it while she was president. The note verbale was sent only during P-Noy’s time (2011). No wonder there was relative peace and quiet with Arroyo.

The problem, Reader, is that “silence or inaction can be interpreted as a state’s acceptance of a factual or legal situation.”

By the way, it was in the Philippines’ case against China that the Permanent Court of Arbitration ruled that China’s nine-dash line was baloney (although not in such graphic terms). Asean, I think, has yet to thank us.

Carpio’s book also discusses China’s objective: economic and military control of the South China Sea, not a fit of pique versus the Philippines.

Is it a case of nothing-can-be-done? No. Carpio suggests, among other things, lawfare (with specific examples), and missiles. Read his book.

By: Solita Collas-Monsod - @inquirerdotnet

Philippine Daily Inquirer / 12:28 AM April 22, 2017

U.S. has few reasons to fan drone spat

For all the outrage after China seized a US naval drone last week, it’s far from clear whether it will herald a new era of confrontation on the high seas between the world’s biggest economies.

China’s unprecedented move last week drew condemnations from the Pentagon, the Philippines and President-elect Donald J. Trump, who accused the nation of stealing the drone. China rejected that characterization on Monday, saying it made the seizure to protect shipping in the area, while agreeing to return the unmanned vehicle.

Either way, further escalation is unlikely for a few reasons: China’s response has been muted, the drones are relatively common and unsophisticated and the US has little reason to send warships on what it considers peaceful operations. Moreover, the incident fell into what strategists call a gray zone, too mild to provoke a military response that risks destabilizing the region.

“Allies in the region do want to see a steadfast American presence and maintenance of the rules-based order, but they don’t want to see overly assertive or prematurely assertive American behavior that might be making things worse,” said Ashley Townshend, research fellow at the US studies center at the University of Sydney.

China sought to downplay the episode on Monday, with Foreign Ministry Spokesman Hua
Chunying likening the drone to an object found on the street.

Drone intelligence

“You have to take a look and investigate it to see if the thing belongs to one who wants it back,” Hua said.

Fox News and other media outlets reported the glider may be returned as early as Tuesday at an agreed location in the South China Sea, citing unidentified US officials. “We’re working out the logistical details,” Defense Department Spokesman Peter Cook said.

Whether China found anything interesting remains to be seen. Underwater gliders like the one seized are used to collect environmental readings, such as water temperature, salinity and information on currents for use by the military as navigation aids for ships and submarines, according to Sam Bateman, a research fellow at the Australian National Centre for Ocean Resources and Security in Wollongong.

“It was surprising the Chinese bothered to recover it,” he said. “They probably wouldn’t be able to read the data on it, and they might not get a great deal of intelligence out of it.”

Bateman, who is a former Royal Australian Navy commodore, said the incident is unlikely to prompt the US to start using warships for what it considers peaceful operations.

‘Bit naughty’

“The Chinese were probably a wee bit naughty taking this thing,” he said. “Some are making the argument that this is China demonstrating that they can do as they like in the South China Sea. That’s a stretch.” China has long opposed American patrols and surveillance within its exclusive economic zone, while the US views anything beyond 12 nautical miles as international waters in which military activities can take place.

“The issue for the United States is less about a strong response to a specific incident and more about a broader and resolute US response to what is seen as a pattern of sustained Chinese assertiveness in the region,” said Andrew Scobell, a senior political scientist at RAND Corporation. Any US response to future moves “would be measured and appropriate to the scope and scale of any Chinese action.”

No strategy

The location of this incident, about 50 nautical miles northwest Subic Bay, raised eyebrows. Defense Secretary Delfin N. Lorenzana said on Monday that, while the matter should be resolved between China and the US, it was “very troubling” because it occurred within the country’s 200-nautical-mile exclusive
economic zone.

The last major incident between the US and China in the South China Sea occurred in 2013 when the USS Cowpens and a Chinese military vessel had a confrontation in the South China Sea that required maneuvering to avoid a collision. In August 2014 a Chinese fighter buzzed within 20 feet of a US surveillance plane in international waters near Hainan island.

The US must develop a strategy for responding to incidents involving underwater unmanned vehicles because they are likely to become more common, said Collin Koh Swee Lean, an associate research fellow at the S. Rajaratnam School of International Studies in Singapore. Even so, he said, the devices aren’t worth going to war over.

“The good thing about the device is that it was unmanned,” Koh said. “The US understands they are meant to be lost.”

source:  Business Mirror

DESPITE RHETORIC: Duterte gives nod to PHL-US Balikatan war games, EDCA — Lorenzana

President Rodrigo Duterte has given his nod to the continuation of the Balikatan joint military exercises between Philippine and US forces, Defense Secretary Delfin Lorenzana told reporters on Monday.

Lorenzana said the continued conduct of Balikatan in the country was one of the DND's recommendations that Duterte approved.

The secretary said the Enhanced Defense Cooperation Agreement between the two countries would also continue.

Lorenzana's remarks came weeks after Duterte declared in Beijing that he was separating the Philippines from the US, in terms of the military and the economy.

He said he was pursuing a foreign policy in which the Philippines would no longer follow the dictates of its treaty ally.

Duterte previously announced to end military exercises with the United States.

He also hinted revise or abrogate executive agreements just to see foreign troops out of the country.

"Nag-present kami. Practically in-approve niya lahat ng recommendation," Lorenzana told reporters on Monday.

"Iyong recommendation namin is the exercises will go on except na bawasan ang major exercises na involving landing exercise," he added.

This means that the Balikatan military exercises would still push through every year with the same number of participating Americans troops of 1,000.

"'Yung mga Balikatan na lang [ang natira]. So yearly, continue nalang siya. Ang matitira is counterterrorism, tsaka 'yung humanitarian response, 'yung mga special operations na mga counterterrorism, mga engineering projects, civic action. 'Yun na lang muna," he added.

This means that the Philippines will no longer engage in the Philippines Amphibious Landing Exercise (Phiblex) and the Cooperation Afloat Readiness and Training (CARAT) with US forces.

Lorenzana said the EDCA would remain.

"It will remain. Hindi naman [i-abrogate]," Lorenzana said.

source:  GMA News Online

Incoherent

SKETCHES By Ana Marie Pamintuan (The Philippine Star)

The day after President Duterte announced his “separation” militarily and economically from Uncle Sam, all his officials were running around like headless chickens, trying to explain the unexplainable to a flabbergasted world.

After returning to the country Friday night via Davao, Duterte added to the confusion by clarifying that he did not intend to cut ties with Washington because, he said, “the Filipinos in the United States will kill me.” I’m sure neither the Americans nor the Chinese are amused.

Du30, who promised to undergo a “metamorphosis” – only to say later that he saw no need to change his ways and we have to take him as he is – will find it useful to adopt two minor changes in his work ethic.

One is to read prepared speeches. If he can’t help it, he may confine his extemporaneous remarks,  profanities and ejaculations of political incorrectness and uninformed commentary to small or localized gatherings where he knows the audience shares his sense of humor and is charmed by a cussing president. But even in such gatherings, and even outside the coverage of mainstream media, he must remember that smartphones and social media can still spread his remarks around the planet in real time.

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Another useful change is to start consulting his Cabinet on matters of grave national importance. Obviously this is not happening. In the past days I’ve heard people who personally know some of his Cabinet members wonder how long the secretaries will last with a boss who takes them for granted, shoots his mouth off and then leaves them to clean up the mess.

Du30 should also consider the latent condescension in one of his favorite stories to regale an adoring Pinoy audience. He did it again in Beijing. Look at my Cabinet members, several of them childhood friends, he told the gathering of Filipino expats. The Cabinet men were valedictorians, overachievers, the best and brightest in their youth. And now here they are, he said, the “trabajante” of the underachiever who barely passed.

He tells the story to illustrate his belief in destiny, and to stress that God put him where he is now. So many atrocities have been committed in the name of God, and it’s always dangerous when someone starts believing that he has the mandate of Heaven. The last president to invoke God’s mandate was Gloria Macapagal-Arroyo.

Destiny surely must have been at work in their lives, and there are Pinoys these days who are saying that God must hate the Philippines so much. The government seems to be lurching needlessly from one self-made crisis to another.

This is kamikaze governance. Left unchecked, it could bring down if not the nation, then Du30’s government.

* * *

Already, Du30’s motor mouth is costing him his credibility before the international community. And he should stop saying he’s not the president of the world, but only of the Philippines. Such myopia is dangerous for a country that is progressively slipping in international competitiveness. He should be encouraging Filipinos to become global citizens, to compete with the best in the world.

Being a lawyer, Duterte has to understand the importance of words, nuance and context. He claims weak proficiency in English and Filipino ­– something that is hard to believe for someone who has served as a public prosecutor and has three children by an American. But if the claim is true, this makes it all the more important for him to read prepared speeches.

Flip-flopping is never good for a world leader. At this point Du30 is still considered a world leader, but if he keeps up with his juvenile behavior, hyperboles, crude language, flip-flopping and clarifications of public statements, he might find himself regarded as an international buffoon.

If his incoherent foreign policy continues, we will soon become the laughingstock of the world.

* * *

Du30 should consider that he might be putting even his preferred allies on the spot with his intemperate remarks.

After openly raising expectations of asserting Philippine fishing rights over Panatag (Scarborough) Shoal, for example, there was deafening silence from Beijing, and Du30 came home empty-handed. There was no mention of the continuing Chinese occupation of Panganiban or Mischief Reef, over which the Permanent Arbitration Court has given the Philippines sovereign rights.

And while Beijing surely appreciates his “pivot” away from the US and into the arms of China, there must be enormous befuddlement – perhaps even snickering – in Beijing and Moscow over his announcement of forming a “triumvirate… against the world” with nuclear club members China and Russia.

For a president who keeps promising that his government will be clean, Du30’s choice of allies is baffling. Beijing is battling corruption at all levels. Apart from national corruption scandals, the venality in the Chinese bureaucracy has given the world melamine in milk and candy, lead in toys, killer toxins in pet food and cardboard in siopao filling. Beijing’s crackdown on corruption has been bad news for Philippine casinos; the expected influx of high rollers from the Chinese mainland has not materialized.

Russia, meanwhile, has been plagued by cronyism, inefficient state capitalism and gangster activities. The economy has faltered because of weak oil prices and massive defense spending for Vladimir Putin’s wars overseas.

Putin, whom Du30 has said he likes, has enough problems, both domestically and internationally. The Russian president must be dumbfounded to learn that his country is being made part of a “triumvirate… against the world.”

* * *

Definitely the Americans have gotten the message that this Philippine President is no fan of Uncle Sam. But a recalibration of foreign policy can be done without pugnacity and with so much more finesse, so that the Philippines gains more friends instead of losing allies.

If Duterte is crafting an “independent” foreign policy, he should just do it, quit yapping about it, and show the world what he means exactly.

In refusing to be an American “puppet” – as he likes to describe the ties with the Philippines’ treaty ally – Du30 should avoid turning into a Chinese puppet.

It’s early days yet and the nation that sent Duterte to power by a landslide is still fervently wishing that he does well. The success of a president generally spells success for the nation. But cheering him on is getting harder with each passing day.

The President must not make it hard for a still optimistic nation to support him.

Duterte wrong on China non-invasion – Carpio

GOTCHA By Jarius Bondoc (The Philippine Star) 

President Rodrigo Duterte misstated in Beijing that China never has invaded any part of Philippine territory. This was pointed out last week by Supreme Court Senior Justice Antonio Carpio. For, China did grab Scarborough Shoal in 2012.

Expert in international law, Carpio called on the government immediately to correct Duterte’s history lapse, lest it be taken against the Philippines. The jurist extensively has researched the South China Sea dispute, and was among those who brought the Philippine case for UN arbitration. The UN court has rubbished China’s alleged right to occupy Scarborough, off the coast of Luzon and well outside China’s territorial or economic zone waters.

Following is Carpio’s lament:

“President Duterte is quoted in the Channel News Asia’s article, “Philippines’ Duterte Praises China on Beijing Visit,” posted in its website on 19 October 2016. The statements of President Duterte as quoted in the article must be corrected to avoid serious damage to the Philippines.

“In referring to China’s relation with the Philippines, President Duterte is quoted in the article as saying: ‘It (China) has never invaded a piece of my country all these generations.’  This is incorrect. In 2012 China physically seized and in effect invaded Scarborough Shoal, which is defined as Philippine Territory under Republic Act No. 9522 (Amended Definitions of the Archipelagic Baseline of the Philippines). RA 9522 states that the Philippines has ‘sovereignty and jurisdiction’ over Scarborough Shoal. In 1995 China seized from the Philippines Mischief Reef, which is part of the submerged continental shelf of the Philippines as affirmed by the Tribunal’s Final Award of July 12, 2016.

“All ancient maps of the Chinese dynasties show Hainan Island as the southernmost territory of China. There is no ancient Chinese map showing Scarborough Shoal or the Spratlys as part of Chinese territory.  Ancient maps of the Philippines show that Scarborough Shoal has been Philippine territory since 1636, and the Spratlys were part of the Philippines since at least 1690. On 29 September 1932, China officially declared to the world, in a Note Verbale to France, that China’s southernmost territory were the Paracels, moving a little further south its southernmost border.  Even then, it meant that Chinese territory never included Scarborough Shoal or the Spratlys.

“Regarding the Tribunal’s Final Award, President Duterte is quoted in the article as saying: ‘The arbitral award gives us the right; China has the historical right.’ That is incorrect. The UNCLOS Tribunal at The Hague concluded: ‘The Tribunal sees no evidence that, prior to the Convention, China ever established a historic right to the exclusive use of the living and nonliving resources of the waters of the South China Sea, whatever use it may historically have made of the Spratlys Islands themselves.’ The Tribunal explained that China’s uses in the past of the South China Sea beyond its territorial seas, through fishing by Chinese fishermen and sailing by its merchant ships and navy, were uses of high seas freedom, just like the uses of the South China Sea by other states. The South China Sea was never exclusively used by China, in the past or now.

“These statements by President Duterte must be corrected lest China claim, quoting him, that Scarborough Shoal is not Philippine territory and that the Philippines recognizes China’s historic rights to the South China Sea, a claim the Philippine government already successfully refuted as false before the Hague Tribunal. Under international law, unilateral statements of a head of state can bind the state and can be taken against such state in an arbitration between such state and another disputant state; thus the need for the government to issue immediately a correction, lest these statements of President Duterte bind the Philippines.”

* * *

Agrarian Reform Sec. Rafael Mariano accuses the Cojuangco clan of non-payment of P1.3 billion to thousands of workers of Hacienda Luisita in Tarlac. Ironically however, those workers say it is Mariano’s fault that they haven’t been paid the amount due them.

The Supreme Court has ruled with finality that the Cojuangcos must pay the P1.3 billion, from the sale of 500 hectares of Hacienda Luisita as an industrial estate and the expropriation of 83 hectares to construct the South Luzon Expressway. The SC ordered the Dept. of Agrarian Reform to initiate the audit of the exact amount to be paid to the workers, minus administrative costs incurred by the Cojuangcos’ Hacienda Luisita. The workers say Mariano has not commenced the audit although the SC has designated the three auditing firms. Instead, Mariano reportedly is entertaining the petition of a handful of workers to reverse the conversion of agricultural land to industrial estate.

The workers say such reversion is no longer possible since the SC has deemed legal the sale of the industrial estate. What is left to be done is for Mariano to junk the petition, proceed with the audit to determine the exact amount, and finally, distribute the cash to the beneficiaries.

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Japan might join PH, China talks on South China Sea – Duterte

MANILA, Philippines – Depending on "developments," President Rodrigo Duterte said future talks with China over maritime disputes in the South China Sea might include Japan.

"We (Philippines and China) will find the day to talk about it – only on the issue of the South China Sea. It could be bilateral. It depends on the developments. It could be multilateral, and that would include Japan," Duterte said Friday night, October 21, during a press briefing in Davao City upon his arrival from Beijing.

"Those are what I suggested (to China) [that we can do] in the future," Duterte said.

Duterte is visiting Japan next week, his 6th foreign destination as Philippine president. His statement Friday night was a response to a Japanese reporter who asked about the agenda in Japan. (READ: Duterte's Japan visit to focus on investments, defense)

"We can only agree to talk peacefully to resolve the dispute and maybe come up with something that is good for everybody. Just maybe," Duterte said.

Japan also has maritime disputes with China, particularly over the Japan-controlled Senkaku Islands located west of Japan and east of China. Taiwan is also a claimant.

Based on their common alliance with the US, Japan and the Philippines stepped up security cooperation during the previous administration of President Benigno Aquino III,donating ships to beef up the fleet of the Philippine Coast Guard.

In 2015, Philippine and Japanese navies flew together over the West Philippine Sea for the first time since the World War 2. The two countries also began talks on a possible visiting forces treaty that will allow Japanese troops in the Philippines.

How the new Duterte administration is going to proceed with plans under the former administration with respect to cooperation with Japan remains unclear as his administration pivots to China and away from the US.

Duterte's state visit to China has resulted in, among others, a Memorandum of Understanding (MOU) on the establishment of "joint coast guard committee on maritime cooperation."

Duterte resumed bilateral relations with China, years after the previous administration froze communications lines because of China's practical occupation of Scarborough Shoal. The Philippines filed and won an arbitration case against China to junk its blanket claim of historic rights over the seas.

Duterte gave assurances that he will not give up the country's sovereignty over the West Philippine Sea amid concerns that his pivot to China will allow the military superpower to dominate the South China Sea.

"I told everybody and I told China, I cannot surrender anything there," Duterte said.

Duterte said his visit to Japan will focus on economic cooperation.

"My talks with the Japanese government would really be solely on, most of it really, is economic cooperation and, of course, shared interests," he said.

Duterte said he also wants to visit Japan's Congress, the Diet. – Rappler.com

Panatag trumped by $24-B promise

POSTSCRIPT By Federico D. Pascual Jr. (The Philippine Star)

AFTER attacking the United States to the delight of his hosts in Beijing and probing what China could offer the Philippines, President Rodrigo Duterte wrapped up his four-day state visit Friday carrying home promises of investments ($15 billion) and soft loans ($9 billion).

But Duterte failed to convince China to allow Filipinos back to their traditional fishing grounds at the Panatag (Scarborough) shoal off Zambales. He got instead another promise from Beijing to talk later about fisheries and such issues over disputed areas of the South China Sea.

The question of who lost in the bargain is likely to haunt the aspiring power player from Davao now dreaming of forming a China-Russia-Philippines axis against “the rest of the world.”

We were aghast, embarrassed even, that our President bad-mouthed its ally of long standing, the United States, while he was visiting China in search of goodwill and goodies. He did not have to announce his “separating” from the US to please his hosts.

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The 2,330-word joint statement of Duterte and China President Xi Jinping avoided mentioning the arbitration ruling last July 12 in The Hague that struck down as illegal China’s extensive claim over much of the SCS, including several maritime areas of the Philippines.

China has built what appear to be military facilities on Kagitingan (Fiery Cross), Panganiban (Mischief), Zamora (Subi), Kennan (Chigua), Mabini (Johnson South), Burgos (Gaven) and Calderon (Cuarteron) reefs, areas being claimed by the Philippines.

Those who were hoping Duterte would fight for Filipino fishermen illegally deprived by China of their only livelihood found him agreeing instead to postpone Panatag discussions to a date to be decided by Beijing.

Before playing Axis, fix traffic first

WE CUT down our commentary on the Duterte-Xi statement when we read, and liked, an essay of Sen. Ralph Recto on the same subject. Excerpts from the Batangas senator:

“Foreign policy rebalancing should not mean that we swing the pendulum to the other extreme, that we dump old friends for new suitors.

“We should practise big-tent diplomacy, welcoming all, and shunning no one. The national interest is served by extending amity to all, and hostility to none.

“In rewriting the country’s foreign policy playbook, the President can perhaps pick up a few pointers from his Facebook team.

“These are: You need not unfriend someone to befriend another. If you don’t like him at the moment, you can unfollow him without unfriending or blocking him so that you retain the option to follow him again.

“Any drastic shift in our foreign policy direction should be well-thought-out and not simply blurted out. It should be a product of deep study and wide discussion. Because of its far-reaching implications, it cannot be an announce-now, study-later thing.

“Crafting an independent foreign policy requires introspection, not impetuousness. This is all the more true if the object of the President’s pique is not a backwater failed state, but a nation that is home to the largest number of Filipinos abroad, the biggest source of foreign exchange remittances, one of the biggest ODA donors, a major market of our products and services, like the BPO.

“Yes, our relations with the United States may not be perfect. But a country which has illegally built a great wall of sand in our seas is not, and far from, the epitome of a good friend either.

“As to our joining Russia and China in a new axis, let us fix our traffic first before we insert ourselves in the power games of nuclear states.”

• EJKs may harm Phl GSPP status

SPACE limitations forced us to also cut last Thursday an article of Dean Mel Sta. Maria of the Far Eastern University Institute of Law on extra-judicial killings in the Philippines that have caught the attention of the International Court of Justice.

ICC Prosecutor Fatou Bensouda recently said: “I am deeply concerned about these alleged killings and the fact that public statements of high officials of the Philippines seem to condone such killings and further seem to encourage State forces and civilians to continue targeting these individuals with lethal force.

“Any person in the Philippines who incites or engages in acts of mass violence including by ordering, requesting, encouraging or contributing, in any other manner, to the commission of crimes within the jurisdiction of the ICC is potentially liable to prosecution before the Court.”

In his article, Sta, Maria warned: “If we lose (because of EJKs) the Generalized System of Preference Plus status granted to the Philippines by the European Community, about 6,800 Philippine products will be subjected to tariff entering 20 EU member-countries whereas, under the GSPP, they will not be charged. The Philippines could lose billions of dollars.

“The GSPP is non-reciprocal. The Philippines has no obligation to provide EU members with the same privilege for their products entering the Philippines. The GSPP is an EU system helping underdeveloped countries in global trade. The only conditions are that the grantees have a good governance system, respect for labor rights and core human rights values. The EU does not want to extend privileges to countries notorious for human rights violations.

“In the ASEAN, Myanmar and other members followed the lead of the Philippines and were granted GSPP status, but the EU suspended the Myanmar grant because of violation of core human rights and labor conventions by Myanmar dictators. But Myanmar changed its direction and has recently shown some improvement in these areas. It reapplied and EU reinstated its GSPP status.

“The Philippine GSPP status is up for renewal next year. Because of the EJKs, the EU tried to remind the Philippines of its concern on its human rights situation. President Duterte, instead of taking this constructively, cursed EU with a middle finger sign to boot. Until now, the bad-mouthing continues. There is a danger of losing GSPP status if EJKs continue. Undoubtedly, EJKs involve serious violations of human rights and a negative implication on proper governance.”

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ADVISORY: To access Postscript archives, go to www.manilamail.com (if necessary, copy/paste theurl on your browser’s address bar). Follow us on Twitter as @FDPascual. Email feedback tofdp333@yahoo.com

Duterte: China visit a turning point in history

President Rodrigo Duterte said his visit to China signaled a turning point in history as it proved the capability of the two nations to work together.

"My state visit to China signaled a turning point in our shared history and showed that both countries are fully capable of working together for mutual beneficial cooperation even as we remain committed to settle disputes peacefully in full adherence of international law,” Duterte said in a speech in Davao City on Friday evening upon his arrival from his four-day China visit.

He added: "To realize the vision of a deeper and more meaningful engagement, we have opened formal lines of communications between our government and agreed on the full resumption of the regular bilateral consultations mechanisms which were put on hold for several years."

Duterte had spoken with the Chinese government on a number of issues concerning both China and the Philippines.

“In all meetings, we had productive and extensive discussions of the full-range of Chinese-Philippine relations from the trade to infrastructures and tourism and to science and technology and health,” the president said.

Duterte also said he talked to President Xi Jinping on the Scarborough Shoal issue, saying, "Yes, of course [we talked about it]. I leave it to the Chinese authorities what they will do in the next few days.”

Amid these talks, Duterte said what is important is to protect the country’s sovereignty.

“In every step the took the relationship of Philippines and China further forward, I was guided by the duty to protect the sovereignty of our nation and the interest of our people,” Duterte said as he vowed to put the nation’s interest above everything else.

“In all my engagements abroad, rest assured that I will always pursue our nation's best interest consistent with our independent foreign policy anchored on the basic tenets of sovereignty, non-interference and mutual respect,” he said.

He said in his speech that both countries have agreed to return to bilateral consultations to resolve the territorial disputes.

"We acknowledged the need to address disputes through peaceful means in accordance with international law. We also agreed to continue discussions on confidence-building measures, including a bilateral consultation mechanism to discuss immediate issues of concern in South China Sea," Duterte said.

He added that the two countries have affirmed "the importance of maintaining and promoting peace, freedom of navigation and overflight in South China Sea." — VVP/ALG, GMA News

What price is Du30 paying for Panatag?

HAGGLING with the Chinese is always fun, yet tricky to the uninitiated and the faint of heart. But then Filipinos have a tough President Rodrigo Duterte to negotiate for them in Beijing.

Haggling is time-consuming. The beauty of it is that both buyer and seller know that they are just makingtawad (bargaining) unmindful of any occasional unintended offense -- and in the end both parties feeling they brought home a good deal.

In Beijing, with the preliminary haggling already done by subordinates, the final options and sticky main points are left to President Duterte and his Chinese counterparts to decide.

By his repeated cursing of the United States, calling its president and ambassador names and threatening to cut ties, et cetera, Duterte has performed his own preliminaries to the delight of his hosts in Beijing.

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Scanning his long shopping list, we think his top priority, and most difficult case, is having Panatag (Scarborough) shoal off Zambales reopened to Filipinos. Aside from protecting Philippine sovereign interests, Duterte has to show concern for displaced fishermen.

On the other hand, sharing Huangyan Dao (Chinese name of Panatag) with Filipinos must be difficult for China, especially if it has plans to use the area to consolidate control over crucial maritime lanes.

Panatag’s strategic location and resources dwarf the package of projects under an enhanced partnership in trade and investments – estimated to be worth some $3 billion – fattened by side contracts that a planeload of businessmen from Manila are eager to close.

• Camouflaging the Panatag issues

NEGOTIATING access to Panatag appears to be at the center of Duterte’s four-day state visit. China is expected to reject it or exact a heavy price for it.

His hosts could pressure Duterte to gloss over the recent ruling of the Permanent Court of Arbitration in The Hague that the “nine-dash line” basis of China’s claiming some 90 percent of the South China Sea is against international law.

For China to give up its exclusive hold on Panatag, which the tribunal said was unlawful, would amount to its accepting the arbitral verdict. Beijing has refused steadfastly to do that.

Besides, although the ruling was issued on petition of the Philippines, its implications on neighbors that are not a party to the case but have similar overlapping claims are devastating.

We doubt if Duterte is ready to throw away the landmark award that the Philippine government worked hard to get. Turning his back on it in exchange for Panatag could raise accusations back home of a $3-billion sellout.

Maybe the possible fallout on both China and the Philippines, and the consequent loss of face, could be minimized by the clever camouflaging of Panatag issues.

To buy time and avoid embarrassment, they could initially agree “in principle,” with the access details to be ironed out in subsequent negotiations. (This “postponement” will not sit well with the Manila crowd.)

Or in the joint statement announcing some agreement, the two parties could avoid direct mention of the Permanent Court of Arbitration award and the United Nations Convention on the Law of the Sea.

Since the award said Panatag should be opened to all nationals who traditionally fish there, the statement could invoke instead “tradition” and possibly “historical basis” (as China has used the term to justify its “nine-dash line” claims).

China itself need not say so, but such opening of Panatag could be interpreted by third parties, including the media, as effective compliance with that aspect of the arbitral ruling. That could help save face for Beijing.

To look good, the neighbors (later possibly with Vietnam whose nationals also “traditionally” fish there) could draw up an understanding on common use, harvest quotas, resource conservation, safety and security, mutual assistance, and whatever else.

• EJK is murder; abetting it is a crime

THE ISSUE of extrajudicial killings (EJK) , meanwhile, refuses to vanish as cadavers of suspects in drugs-related cases pile up. Latest reports place at around 4,000 suspects shot dead by the police and vigilantes since July 1.

To help explain the phenomenon that has caught the attention of the International Court of Justice, we share below excerpts (edited to fit) from an article of Mel Sta. Maria, resident legal analyst of TV5 and dean of the Far Eastern University Institute of Law:

“In the Philippines, death as punishment cannot be meted out by human beings on human beings. Rep. Act No. 9346 prohibits the death penalty. This is the societal imperative all must observe.

“No one is above the law. Not even the Supreme Court can order death as punishment; neither can the President. For the death penalty to be imposed, the law must be amended to allow it. But even with an amendment, the President still has no power to order the killing of people because only the judiciary can impose punishment.

“Any death sentence ordered by any other entity or person outside of the courts is extra-judicial. And if the order is carried out, it is EJK -- the commission of murder no less.

“Although it is not yet a legal term in our statute, EJK is now specially used to highlight its gravitas over and above the other types of murder -- the brutal extermination of ordinary people, especially the poor, caused or executed by state and non-state actors.

“Because EJK is a crime, every time President Duterte says ‘I will kill you’ or when he said, referring to 3,000,000 drug addicts, ‘I’d be happy to slaughter them,’ he, the head of state, conveys a deadly message discordant with the rule of law.

“The declarations may be taken as encouragement, especially for people in authority like Philippine National Police officers, to have the same motivation and objective. Put into action and ultimate fruition, it is EJK.”

(Next time: What could happen if ICC stepped in?)

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ADVISORY: To access Postscript archives, go to www.manilamail.com (if necessary, copy/paste theurl on your browser’s address bar). Follow us on Twitter as @FDPascual. Email feedback tofdp333@yahoo.com

‘Separation from US unwise, incomprehensible’

MANILA, Philippines - President Duterte’s announcement of cutting ties with the United States in an apparent attempt to shift foreign policy in favor of China is “unwise and incomprehensible,” former foreign affairs secretary Albert del Rosario said yesterday.

“What is unfolding before us must be considered a national tragedy which does not need to happen,” Del Rosario said.

“It is our earnest hope that this most unfortunate declaration will be corrected,” he added.

Duterte said he would realign the Philippines with China and Russia in a triumvirate “against the world.”

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“The declared shift in foreign policy casting aside a long-time reliable ally to hastily embrace an aggressive neighbor that vehemently rejects international law is both unwise and incomprehensible,” Del Rosario said.

During his visit in Beijing, Duterte announced that he is cutting military and economic ties with the US and is veering towards China, in a dramatic foreign policy shift that his officials said would open more opportunities for the Philippines.

“The declared shift in foreign policy casting aside a long-time reliable ally to hastily embrace an aggressive neighbor that vehemently rejects international law is both unwise and incomprehensible,” Del Rosario said.

During his visit in Beijing, Duterte announced that he is cutting military and economic ties with the US and is veering towards China, in a dramatic foreign policy shift that his officials said would open more opportunities for the Philippines.

Duterte claimed the US has been arrogant and has been imposing its policies on other countries, including the Philippines, its traditional partner and ally.

“We must be with responsible nations with whom we share our core values of democracy, respect for human rights and the rule of law,” Del Rosario said.

“To stand otherwise is not what Filipinos are; it is not what we do; it is not what is right.”

Del Rosario said a principled and independent foreign policy that Duterte wanted should not be driven by a possible bias and threatening to burn bridges with valued partners and friends to favor another state.

He said Duterte’s foreign policy had gone “off-track.”

Unusual

Former foreign undersecretary Lauro Baja Jr. said it was “unusual” for the President, a guest of a foreign government, to make the announcement abroad that he is separating from a long-time ally.

He said the statements could be construed as a policy of the Duterte administration.

“It’s unusual though to say this abroad and as a guest of a government but… if it’s a policy, it’s a major statement from the President,” Baja said in a television interview.

It was one of the President’s normal off the cuff statements, but Baja said it is something that bears watching for further developments.

“His word is not severing, it’s separation. I don’t know what he means by ‘separation.’ I caught also a statement that China, Russia and the Philippines against the world. I don’t know what he means. I doubt that his Cabinet members particularly (Foreign Affairs) Secretary (Perfecto) Yasay and (Finance) Secretary (Carlos) Dominguez were consulted. So we don’t know what he means as of this time,” he said.

Baja said the situation in Panatag (Scarborough) Shoal should have been discussed by Duterte in his visit to China.

“No matter how you look at it, it’s a victory for China and what do we get for the Philippines is now nothing except to talk. I would have hoped that at least the situation in the Scarborough Shoal should have been discussed,” Baja said. “It’s incumbent for the Philippines to execute whatever awards. Again it will send a wrong message to China, a wrong message to the US, a wrong message to their ally, maybe a wrong message to Filipinos.”

source:  Philippine Star