Submitted to the Senate Committee on National Defense and Security, Peace, Unification and Reconciliation, Committees on Foreign Relations, Public Works and Finance and Special Committee on Philippine Maritime and Admiralty Zones that are conducting public hearings on the West Philippine Sea by the International Law and Relations Society of the Philippines (ISIP), an intellectual society composed of retired Chief Justice of the Supreme Court Reynato S. Puno, retired CG Admiral Joel S. Garcia, Dr. Melissa Loja, Prof. Romel Bagares and Atty. Al Soriano.
Bearing in mind the nature of the CCG and PCG, did the presence of the Philippine Navy, US Navy and Chinese Navy in the WPS transform the incident into a military situation? What are the legal and political implications of the deployment of the Philippine military to the WPS and its use of the assistance of the US Navy? Does the MDB SEB have legal authority to seek or allow the assistance of an armed or unarmed aircraft of the US Navy during a Philippine law enforcement activity in the WPS?
T is respectfully submitted that a military situation was in effect in the WPS on August 13, 2023. As held by the Arbitral Tribunal in the SCS Arbitration, the acts of Chinese non-military vessels in preventing the Philippine resupply mission amounted to a military activity. In effect, the Chinese vessels were performing a military function of territorial defense. Further, the Chinese Navy and Philippine Navy were present in the vicinity.
The presence of an aircraft of the US Navy while a military situation was in place in the Second Thomas Shoal engenders the question of whether the Mutual Defense Board and Security Engagement Board had authority to allow such presence. Under the Enhanced Defense Cooperation Agreement (EDCA), the MDB and SEB have two specific functions.
First, the MDB and SEB shall be the bilateral security mechanism through which the Philippines shall grant the US “operational control of Agreed Locations for constructions activities and authority to undertake such activities on, and make alterations and improvements to, Agreed Locations.”
Second, the MDB and SEB shall serve as the bilateral security mechanism through which the Philippines may authorize the United States to “preposition and store defense equipment, supplies, and materials…including, but not limited to, humanitarian assistance and disaster relief equipment, supplies, and materiel, at Agreed Locations.”
Nowhere in the foregoing provisions of EDCA are the MDB and SEB authorized to request and allow the deployment of an aircraft of the US Navy to assist in an actual and live Philippine military activity of resupplying BRP Sierra Madre in an area contested by China.
To be sure, under Article IX of Supplementary Agreement No. 2 to the Treaty of Friendship, Cooperation and Security between the Government of the Republic of the Philippines and the Government of the United States of America: Agreement on Installations and Military Operating Procedures, the MDB shall decide on matters regarding US projection of forces in times of war or peace. However, in 1991, the Philippine Senate did not concur in the ratification of said supplementary agreement.
More importantly, as established in 1958, the MDB shall have equal representation from the Philippines and the US, and its decisions shall be made by agreement between the Philippine co-chair and US co-chair. As created in 2006, the SEB shall likewise have equal representation from the US and Philippines and its decisions shall be made by agreement by the Philippine and US co-chairs. In effect, decisions by the MDB and SEB on matters relating to the conduct of foreign relations by the Philippines vis-à-vis China would not be decisions rendered by the Philippine President as head of state and commander in chief, much less by the Philippines as a sovereign state.
Thus, the following questions would require deliberation and appropriate legislation by the Philippine Congress:
(1) What is the source of power in getting the assistance of the US Navy?
(2) Can the President do it as Commander in Chief? What is the role of Congress?
(3) Can the President invoke the EDCA to authorize the MDB and SEB?
(3-1) In relation to the role of the MDB and SEB, what is meant by “agreed locations”? Do they cover the disputed areas?
(3-2) What is meant by “operational control”?
(3-3) What is meant by “defense equipment, supplies and materials…?”
(3-4) What is the process to be followed by the US if the EDCA is invoked? Was this process followed?
(3-5) Can the MDB and SEB invoke EDCA without the express authority of the President?
What legal and non-military courses of action may the Philippines take to respond to the recent collision at sea and blockade by Chinese vessels against Philippine resupply vessels?
5.1 Was the collision an act of war?
5.2 Was the blocking maneuver an act of war?
It is important to ascertain the precise location and nature of all the vessels involved, before and at the time of the collision, to be ascertained. As there is no official source of this information, the discussion below would have to be based on certain surmises.
Assuming that the Chinese vessels were within the EEZ of the Philippines and, at the same time, outside the territorial sea of any of the rocks being occupied by China, the presence of said Chinese vessels would be justified only under freedom of navigation. Moreover, the collision that take place within the EEZ of the Philippines would not qualify as an act of war as no armed force was used upon a territory or territorial extension of the Philippines. Assuming that the blocking maneuver took place also within the Philippine EEZ, the same would not amount to an act of war if no armed force was applied. However, such blocking maneuver by China would be an impairment of freedom of navigation by the Philippines in its own (Philippine) EEZ or an internationally wrongful act under Article 31 of UNCLOS in relation to existing conventions on safety of navigation.
Assuming that the Chinese vessels were inside the territorial sea of any of the rocks being occupied by it, said vessels would be engaged in the exercise of territorial sovereignty by China. The collision would not be an act of war by China against the Philippines as no armed force was applied against a Philippine territory or territorial extension. Had the blocking maneuver taken place within said waters, the same would not be considered an act of war. China’s refusal of passage by Philippine vessels would also be justified as the latter is an opposing claimant state to the territorial waters in question.
Without a doubt, there is escalation from diplomatic negotiations to military maneuvers as the principal means employed by the parties to address their disputes. Nonetheless, the prohibition against use of force still applies. The only available recourse of the Philippines is to open a permanent and direct diplomatic channel between the Philippines and China. The existing bilateral mechanism may not be adequate as it is activated only once or twice a year.
Moreover, the provision on counter-measures in the proposed maritime zones law would not be enforceable in the territorial and maritime and air spaces that are occupied by China, Vietnam or Malaysia, though claimed by the Philippines. Even in the Philippine EEZ/CS, the forcible application of such countermeasures against foreign state vessels would amount to acts of aggression. As Prof. Stuart emphasized by citing the Ara Libertad case, no countermeasures, such as boarding and seizure, can be brought against state vessels that enjoy sovereign immunity.
As such blocking maneuvers and collisions are likely to recur, and may become kinetic, it may be useful to anticipate scenarios to which the foregoing discussion and some additional preliminary guidance might be relevant:
Assume that there are no conflicting claims between Philippines and China over the area within 200 nautical miles from the Philippines baselines or the Philippine EEZ/CS.
(1-1) What are the rights that can be exercised by the Philippines in its EEZ and CS? What rights can the Philippines not exercise?
Article 56(1)(a) of UNCLOS declares that coastal states like the Philippines shall have only sovereign rights rather than territorial sovereignty rights. Sovereign rights relate to the purpose of exploring and exploiting and conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, as well as the production of energy from the water, currents and winds.
Article 56(1)(b) defines the nature of sovereign rights as jurisdictional and limits its scope to (i) the establishment and use of artificial islands, installations and structures (Article 60); (ii) marine scientific research (Part XIII); (iii) the protection and preservation of the marine environment (Part XI: Article 220). Article 56(1)(c) provides that the coastal state shall have “other rights and duties provided for” under UNCLOS, such as the establishment of continental shelf installations (Article 60) and the right of hot pursuit for violations of the sovereign rights of the coastal state (Article 111). The Philippines may issue and enforce laws and regulations for the exercise of said enumerated sovereign rights.
No state, such as the Philippines, may claim territorial sovereignty over any area beyond the limit of its 12 nautical mile territorial sea. While said state may exercise jurisdiction in its CZ to prevent or punish violations committed in its TS or land territory of its fiscal, immigration, custom and sanitation laws, it may not exercise constitutional, criminal, civil and tax/customs/commercial/labor laws in its EEZ/CS. Such claim to territorial sovereignty is precluded by the express recognition by customary international law, as codified in Article 58 in relation to Articles 87 to 111 of UNCLOS, that in the EEZ/CS of any state, other states, such as China, enjoy freedom of the high seas, such as navigation, overflight, laying and maintenance of submarine cables and pipelines.”
Moreover, according to the US, freedom of the high seas includes the conduct of military activities, such as “anchoring, launching and landing of aircraft, operating military devices, intelligence collection, exercises, operations and conducting military surveys,” provided that the state engaging in military activities in the EEZ/CS of another state, complies with the obligation to give due regard to the enjoyment by the latter of its sovereign rights.
(1-2) What are the rights of any vessel of China or any foreign state in said undisputed Philippine EEZ?
As discussed under (1-1), in the undisputed EEZ/CS of the Philippines, China and other foreign states enjoy freedom of the high seas, such as navigation, overflight, laying and maintenance of submarine cables and pipelines, and the conduct of certain military activities.
Assume there are conflicting territorial and maritime claims between China and the Philippines over the area within 200 nautical miles from the Philippine baselines.
Given the decision of the SCS Arbitral Tribunal, can China intrude into our EEZ/CS without the permission of Philippine authorities?
No, provided the term “intrude” means exercise of sovereign rights and the term “EEZ/CS” means the maritime zone and seabed up to the limit of 200 nautical miles from the Philippine archipelagic baselines “but beyond the territorial sea” of the rocks being disputed in the SCS.
Yes, if the term “intrude” means activities in exercise of freedom of the high seas and the term “EEZ/CS” encompasses the territorial seas of rocks that are disputed in the SCS but occupied by China.
According to the SCS Arbitral Tribunal, in the TS and/or internal waters of BDM, Philippines, China and Vietnam have common rights to ancestral fishing.
What acts can be done by China short of threats or use of force while inside Philippine EEZ/CS?
In areas within the Philippine EEZ/CS but are encompassed by the TS and seabed of rocks that are occupied by China, the latter may exercise territorial sovereignty, including the use of force to defend itself.
In areas within the Philippine EEZ/CS that are encompassed by the TS and seabed of rocks that are not occupied by China, the latter may not exercise territorial sovereignty. It may not use force to claim the territories.
In areas within the Philippine EEZ/CS but beyond the TS and seabed of rocks that are disputed in the SCS, China may not claim or exercise sovereign rights. However, it may exercise freedoms of the high seas.
Notwithstanding the language of existing laws and pending bills, for the SCS Arbitral Tribunal the Philippine represented to it that the Philippine EEZ/CS is defined as follows:
683. The Philippines submits that “the waters, seabed and subsoil of the South China Sea within 200 M of the Philippine coast, but beyond 12 M from any high-tide feature within the South China Sea, constitute the EEZ and continental shelf of the Philippines” under Articles 57 and 76 of the Convention….
What acts constitute “armed attacks?” Is the use of laser, water cannon or blocking maneuver an “armed attack”?
Not every act of aggression or use of force can rise to the level of an armed attack as would justify the right to self-defense under Article 51 of the UN Charter. Noting that there is no definition of armed attack in the UN Charter or the San Francisco proceedings, the ICJ merely delineated thresholds. Thus, it held that, because of its scale and effect, the operation of the US of sending “armed bands to the territory of [Nicaragua]” would have been considered an armed attack “rather than a mere frontier incident…had it been carried out by regular armed force.” On the other hand, it categorically declared as an armed attack the act of armed Iranian militants of “overrunning…[the premises of the US Embassy in Tehran] the seizure of its inmates as hostages, the appropriation of its property and archives and the conduct of the Iranian authorities in the face of those occurrences.”
From the foregoing cases, it is apparent that a territorial target is indispensable. Thus, while use of force on an artificial island of China or Vietnam would amount to aggression, it would not qualify as an armed attack for an artificial island is not a territory unless the same is situated on the territorial sea.
Given the foregoing threshold, the use of lasers or water cannons and the blocking maneuver of vessels do not amount to armed attacks. Whether or not an attack by a swarm of Chinese militia vessels upon Philippine military or law enforcement vessels would amount to an armed attack as would activate Article 51 would depend on the threshold in the foregoing ICJ cases.
What responses can be done by the Philippines vis-à-vis the above actions of China?
What is the significance of the use of the PCG?
Having the PCG at the frontline signals adherence by the Philippines with the UN Charter on recourse to peaceful means rather than use of force in the settlement of disputes.
However, a dedicated 24/7 diplomatic team would be more effective.
What is the significance of the use of our military, the Philippine Navy?
Having the military at the frontline increases the risk of immediate recourse to lethal force rather than peaceful means of settlement.
What is the significance of the invitation of foreign military forces, i.e., USN?
The presence of the USN per se is not contrary to Philippine law or international law, especially if the latter’s presence is merely in exercise of freedom of navigation. As pointed out earlier, the US position is that freedom of navigation includes the conduct of military activities in the high seas as well as the EEZ/CS of other states.
However, the participation of US military officers in decision making through the MDB and SEB, is legally suspect. It also places the Philippines under the category of a non-neutral state in the event of an armed conflict between the US and China/Russia/Iran/North Korea.
Assume China resorts to an “armed attack” against the Philippines.
What lawful acts of self-defense can the Philippines do?
The Philippines may resort to an armed counter-attack in self-defense under Article 51 of the UN Charter. At the same time, it may bring the matter to the UN Security Council in order to activate the provisions of Chapter VII of the UN Charter.
Will the armed attacks, acts of self-defense, acts of retaliation let loose an all-out war between the China and the Philippines and their allies?
In case of an all-out war, can the Philippines lose not only its sovereign rights over its EEZ but even its sovereignty over its territory (land and territorial seas)?
As a rule, conquest or armed occupation is not a valid means of territorial acquisition.
However, the reality shown by Israel’s and Russia’s military occupations is that the way in which a state controls its territory can be perceived by a powerful neighbor as a threat to its own security.
In that eventuality, does the Philippines have any effective remedy under international law?
The continuing saga of Palestine and Chagos Archipelago demonstrates the reality that no effective institutional enforcement mechanism is available under international law. Perhaps proactive neutrality and conflict-prevention through diplomacy are the more rational choices.
Respectfully submitted for the consideration of the Philippine Senate.
International Law and Relations Society of the Philippines
November 15, 2023