Category: South China Sea

Why China blocks bringing of construction supplies to BRP Sierra Madre in Ayungin Shoal

Ellen

When former president Rodrigo Duterte agreed with Chinese President Xi Jin Ping to not repair the BRP Sierra Madre, he was, in fact, abandoning the Marines valiantly manning the rusting ship, which has become a heroic symbol of the Philippine’s resistance against the creeping invasion by China.

In an interview on ABS-CBN after another water-cannoning of the rotation and reprovisioning (RORE) vessel bound for Ayungin Shoal on March 23, Harry Roque, former spokesperson of Duterte, disclosed that the former president and Xi had “a gentleman’s agreement.”

“Ito’y oral [agreement] sa panahon ni [dating] presidente Duterte na ang parehong panig, ang Tsina’t Pilipinas, ay rerespetuhin ang status quo; ibig sabihin, kung ano ‘yung naroroon na, walang dagdag, walang bawas,” Roque said.

(It was an oral agreement during the time of [former] president Duterte in which both sides, China and the Philippines, will respect the status quo; which means, what is there, nothing will be added, nothing will be subtracted.)

Roque said he learned about the agreement in 2018, when Duterte called China’s ambassador to Malacañang after a Chinese ship sprayed water cannon on a RORE vessel bound for Ayungin Shoal. The envoy claimed that “papayagan nilang dalhan ng tubig at pagkain, hindi ang pagpapadala ng materyales for repair ng BRP Sierra Madre.”

(They will agree to the bringing of water and food, but not materials for the repair of BRP Sierra Madre.)
This is underscored in the statements of the Chinese Foreign Ministry spokespersons to justify the Chinese blocking of RORE vessels: “This Philippine resupply mission is not to send necessities, but to bring construction materials to the military vessel illegally grounded at Ren’ai Jiao for its repair and reinforcement in an attempt to build a permanent outpost on China’s uninhabited reef so as to permanently and illegally occupy Ren’ai Jiao.“

Why is China violently opposing the repair of BRP Sierra Madre?

Ayungin Shoal (international name is Second Thomas Shoal; Chinese name, Rén’ài Jiāo ) is a low- tide elevation (meaning, it’s underwater during high tide) in the Spratly Islands in the South China Sea. It is 105 nautical miles from Palawan and is part of the country’s exclusive economic zone and continental shelf. China claims it belongs to Nansha Qundao or Spratlys, which is part of its territory based on its discredited nine-dash line map.

Ayungin Shoal is doubly important to China because it is 21 nautical miles from Mischief Reef (Philippine name, Panganiban Reef; Chinese name, Meiji Jiao), which China occupied in 1995 during the presidency of the late Fidel Ramos and has since developed a military base there complete with an airport.

In retaliation, the Philippine Navy, under the Estrada administration, intentionally grounded he BRP Sierra Madre in Ayungin Shoal.
Built in 1944, the 100-meter long BRP Sierra Madre was originally a World War II vintage US Landing Ship Tank (LSTs). It saw action during the Vietnam War as USS Harnett County. In 1976, it was transferred to the Philippine Navy.

Despite its dilapidated state, BRP Sierra Madre in Ayungin Shoal is a constant source of annoyance to China. Countless times, Chinese officials have told the Philippines to remove it. They would have done so themselves if not for potential politically serious consequences.

BRP Sierra Madre is Philippine territory

BRP Sierra Madre is “a commissioned Philippine naval vessel.” A country’s naval ship is considered part of its territory.
If China touches or steps on any part of BRP Sierra Madre, it would be an act of war. It has to reckon with the 1951 PH-U.S. Mutual Defense Treaty which states in part, “Each party recognizes that an armed attack in the Pacific area on either of the parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes. “
The treaty also says, “… an armed attack on either of the parties is deemed to include an armed attack on the metropolitan territory of either of the parties, or on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific.”

Secretary of State Antony Blinken, during a visit to Manila on March 20, reiterated the current U.S. assurance that its “iron-clad” commitment under the MDT “extends to armed attacks on the Filipino armed forces, public vessels, aircraft – including those of its coast guard – anywhere in the South China Sea.”

Nobody wants an armed clash between China and the United States in the South China Sea. That would be a catastrophe. Not even China, despite its strong warning that “if the Philippines does not change course, China will continue to take resolute steps to safeguard its territorial sovereignty and maritime rights and interests.”

Hoping and waiting for the worst for BRP Sierra Madre

What China wants is for BRP Sierra Madre to decay fast and become uninhabitable. The eight Marines stationed there would be forced to abandon it. That would pave the way for China to occupy Ayungin Shoal, which is just 105 nautical miles west of Palawan.

Duterte’s agreement with China to not bring construction materials for the repair of BRP Sierra Madre supports China’s desired scenario. That was surrender.

In effect, Duterte abandoned the patriotic and courageous Marines to the mercy of China. That was abandonment of his sworn duty to protect and serve the people. It’s treason.

This column also appeared in Malaya Business Insight, VERA Files

China takes the offensive

Ellen


It was short and clear. And combative.

In 10 paragraphs, Chinese Ambassador Huang Xilian made known last Sunday, April 16, his government’s anger over the decision of President Ferdinand Marcos Jr. allowing the United States military to preposition and store defense equipment, supplies and materiel in sites “only a stone’s throw away from Taiwan.”

He warned what China, which boasts of the strongest military in Asia and third in the world, might and can do: “… we will not renounce the use of force, and we reserve the option of taking all necessary measures.”

He laid out to the Marcos government how it could be affected adversely in case armed hostilities erupt in Taiwan, where over 150,000 Filipinos work, and what it should do to help prevent that situation from happening: “The Philippines is advised to unequivocally oppose ’Taiwan independence’ rather than stoking the fire by offering the U.S. access to the military bases near the Taiwan Strait if you care genuinely about the 150,000 OFWs.”

Two weeks earlier, when the pre-dominantly Catholic Filipinos were starting their observance of the week-long Holy Week retreat, the government released the location of the additional four EDCA sites: Lal-lo Airport in Cagayan; Camilo Osias Naval Base in Santa Ana, Cagayan; Camp Melchor dela Cruz in Gamu, Isabela; and Balabac Island in Palawan.

EDCA stands for Enhanced Cooperation Agreement between the Philippines and the United States signed in 2014 which established “agreed locations” in the country where the United States Armed Forces can have access on a rotational basis.

Under EDCA, “the Philippines authorizes the United States forces, United States contractors and vehicles, vessels and aircraft operated by or for United States forces may conduct the following activities with respect to Agreed Locations: training, transit, support and related activities; refueling of aircraft, bunkering of vessels; temporary maintenance of vehicles, vessels and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies, materiel; deploying forces and materiel and such other activities as the Parties may agree.”

The four new sites bring to nine the EDCA sites in the country. The five earlier agreed locations are Cesar Basa Air Base in Pampanga, Fort Magsaysay Military Reservation in Nueva Ecija, Lumbia Air Base in Cagayan de Oro, Antonio Bautista Air Base in Puerto Prinsesa and Mactan Benito Ebuen Air Base in Cebu.

The two sites that are driving China up the wall are Lal-lo Airport in Cagayan, which is 590 kilometers to Taiwan, and Camilo Osias Naval Base in Santa Ana, Cagayan, which is 623 km to Taiwan.

The ambassador explained: “Obviously, the U.S. intends to take advantage of the new EDCA sites to interfere in the situation across the Taiwan Strait to serve its geopolitical goals, and advance its anti-China agenda at the expense of peace and development of the Philippines and the region at large. Many Filipino politicians and ordinary Filipino people are questioning whether opening new bases will serve the national interests of the Philippines. ’Why are the new EDCA sites only a stone’s throw away from Taiwan?’ ‘How will the Philippines effectively control the prepositioned weapons in the military bases?’ ‘Why will the Philippines fight for another country through the new EDCA sites?’ These are soul-searching questions of the Philippine people and also doubt by people in China and across the region.”

That’s when he raised the worrisome possibility: “But we will not renounce the use of force, and we reserve the option of taking all necessary measures. This is to guard against external interference and all separatist activities. The Philippines is advised to unequivocally oppose ’Taiwan independence’ rather than stoking the fire by offering the U.S. access to the military bases near the Taiwan Strait if you care genuinely about the 150,000 OFWs.”

On April 10, Marcos said he will not allow the EDCA sites to be used in any offensive attack. He added in Filipino, “If no one attacks us, they don’t need to worry because we won’t fight them.”

Taiwan is one of China’s core issues. Since 1949 when the then Mao Tse Tung-led Communist Party of China took over the mainland after more than two decades of civil war and pushed the Chiang Kai shek-led Nationalist Party of China to Taiwan – an island about 100 miles away – the Beijing government has made the One-China Policy a pre-requisite in its relations with other countries.

Under the One-China Policy, which the Philippines, the U.S. and more than 180 countries have adopted, the Beijing-based People’s Republic of China is the legitimate government of China and Taiwan is a province of China.

For many years, the world has seen peace under a delicate situation of “no unification, no independence, and no use of force” policy. In recent years, however, Beijing finds Taiwan under President Tsai Ing-wen leaning more towards independence.
Two years ago, I asked a Chinese journalist about the possibility of an armed confrontation over Taiwan, he said, “Not in our lifetime.”
Last month, I asked him the same question. His answer: “I’m not sure anymore.”

Liar

Ellen

No, the jet ski boast was not a joke. It was a lie.

Joke is defined by Merriam-Webster as something said or done to provoke laughter while a lie is an untrue statement made with the intention to deceive.

It was a lie, planned with his campaign staff, which he used in almost all of his 2016 campaign rallies, complete with flag-kissing. There was the INTENTION to deceive.

And indeed, 16.6 million were deceived. And Rodrigo Duterte became the 16th president of the Republic of the Philippines.
It was another lie, on top of a lie, when he said it was a joke, when asked to account for his campaign promises. He kept on repeating that lie, the latest of which was last May 10 when, during his weekly televised talk, he said that those who believed his ”joke“ were stupid.
Talk about adding insult to injury.

In his own words:

“Panahon sa kampa — panahon sa kampanya ‘yan. At saka ‘yong biro na ‘yon, ‘yong delabra — we call it “bravado,” ‘yong bravado ko that was just a pure campaign joke.

“At kung naniniwala kayo sa kabila, pati na siguro si Carpio pati si — I would say that you are really stupid. Sige, maghanap ka ng tao dito magpunta ng jet ski. Hindi pa mag-abot pa ng ilang oras I would conk out in the middle of the sea … ýung naniniwala kayo niyan, I really do not know if you — if you harp on that, it’s — it’s a pure … I was not taking lightly the sovereignty but it was a pure joke actually, but just to emphasize na talagang hinaluan ko lang ng biro.
“Isipin ninyo kung paano maging totoo ‘yan, matutunaw ‘yong utak ninyo. Maniwala sa jet ski p**…’”

(That was during a campaign. And that joke was, in other words, — we call it bravado, that bravado was just a pure campaign joke.

And if you believe on the other side, maybe including Carpio and … I would say that you are really stupid. Go, look for someone who would go with a jet ski. Even before a few hours later I would conk out in the middle of the sea … those who believe that, I really do not know if you — if you harp on that, it’s — it’s just a pure — I was not taking lightly the sovereignty but it was a pure joke actually, but just to emphasize that, I injected humor into it.

Think how it can be true, your brains will melt. Believe in jet ski …p**…)

By constantly repeating the jet ski lie as a joke, Duterte has come to believe it. Stupid is he who believes his own lie.

***

This column appeared also in:

https://verafiles.org/articles/liar

https://news.abs-cbn.com/blogs/opinions/05/17/21/duterte-jet-ski-joke-ellen-tordesillas

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How much did PH pay for foreign lawyers in case vs China?

Ellen

(I did this article for VERA Files.)

The government paid $7 million in legal fees to the international team that gave the Philippines its landmark victory against China over the disputed features in the South China Sea, a member of the Philippine delegation to The Hague hearings said.

The source who asked for anonymity said the $7 million was a ceiling in lawyers’ fees the government of President Benigno Aquino III insisted on, having learned a costly lesson from the case against the Philippine International Air Terminals Co. (Piatco) where, under an open-ended agreement, the lawyers’ fees reached $65 million.

The Philippines was represented in the two-and-a half year litigation by Foley Hoag LLP. The case against China was filed with the Permanent Court of Arbitration in The Hague, Netherlands on January 22, 2013.

Counsel for the Philippines Paul S. Reichler. Photo from Permanent Court of Arbitration.

Counsel for the Philippines Paul S. Reichler. Photo from Permanent Court of Arbitration.

The $7 million (P328,996,500 at P47 to $1) was the third ceiling set, more than 65 per cent higher than the original contract fee of $4,212,000 agreed upon in December 2012 by then Solicitor General and now Supreme Court Associate Justice Francis Jardeleza and Paul S. Reichler of Foley Hoag.

Reichler headed a team of six American and British lawyers from Foley Hoag, which has offices in Washington D.C, Boston and Paris.
Other members of the Philippine legal team are Lawrence H. Martin and Andrew B. Loewenstein, both from Foley Hoag ; Bernard H. Oxman of University of Miami School of Law, Miami; Philippe Sands of Matrix Chambers, London; and Alan Boyle of Essex Court Chambers, London.

Lessons from PIATCO case

In 2004, the Philippines under the government of President Gloria Arroyo nullified the contract for Piatco to build, operate and maintain the $650-million NAIA 3 terminal for a concession period of 25 years.
The Arroyo government said the company did not possess the requisite financial capacity, and that the agreement was contrary to public policy.

Piatco sued the Philippine government before the International Chamber of Commerce (ICC) arbitration tribunal in Singapore for $565 million in damages.

Its foreign investor, the German firm Fraport, separately sued the government at the International Center for the Settlement of Investment Disputes (ICSID) in Washington.

A lawyer experienced in the litigation of private cases in international courts said counsels are paid per hour for their court appearances. He said the rate varies depending on the standing of the law firm with top-notch lawyers charging $1,000 per hour.

Adjustable cap

In the case against China, the source said the original cap of $4,212,000 was adjusted to $5,870,000 in July 2015 under a supplemental agreement that would “cover all legal services and expenses through the end of the oral hearings on the merits of the Philippines claim.”

Excluded would be “any post hearing proceedings and any extraordinary hearings such as requests for provisional measures.”
In December 2015, Foley Hoag exhausted the payment and sought another adjustment of the ceiling.

Executive Secretary Paquito Ochoa, Jr and Solicitor General Florin Hilbay expressed reservations on setting a new ceiling as it would negate the purpose of the agreement to fix a maximum amount to avoid the risk of higher and unexpected costs.

Hilbay also expressed the concern any payment outside the engagement contract might be considered illegal, irregular or excessive and may unnecessarily expose the President and other officials involved including himself to potential suits.

An increase in lawyers’ fee, however, became necessary when, in May 2016, Taiwan intervened in the case concerning Itu Aba or Taiping, the biggest feature in the Spratlys which it occupies.

Taiwan insisted Itu Aba is an island entitled to a 200-nautical-mile exclusive economic zone that would overlap with the Philippine EEZ.

It cited numerous scholarly works in Chinese that had to be researched, translated and rebutted in a response by the Philippine legal team, as requested by the tribunal.

The Tribunal sided with the Philippines in its ruling that Itu Aba is “not capable of sustaining an economic life of their own” and is not entitled to an EEZ and continental shelf.

Counsel for the Philippines Prof. Philippe Sands. Photo from Permanent Court of Arbitration.

Counsel for the Philippines Prof. Philippe Sands. Photo from Permanent Court of Arbitration.


Debate on hiring foreign lawyers

President Aquino’s spokesman, Edwin Lacierda, defended Malacañang’s decision to hire foreign lawyers.
“We have the knowledge, but in so far as appearing before international tribunal, you get the best persons you can hire for that. It will be foolhardy for us not to hire experts with experience appearing before this tribunal,” Lacierda said.

He added the lawyers the Philippine government engaged for the historic case “have international reputation appearing before the tribunal. We can rely on them. “

Joel Butuyan of Roque & Butuyan Law Office, who has handled cases in the World Bank’s International Centre for Settlement of Investment Disputes said, “The Philippines does not lack legal talent and expertise that equal those of the foreign lawyers who successfully represented the Philippines in the West Philippine Sea arbitration.”

“In fact, Philippine lawyers would have had the advantage of unequalled passion and dedication if they were given the chance to represent their country,” Butuyan said. “And certainly, Philippine lawyers would have been much less expensive.”
But he pointed out foreign lawyers come with years of actual experience handling country versus country cases, and have already addressed, researched and argued basic issues of jurisdiction.

“They have the international stature as the acknowledged experts in this kind of cases,” Butuyan said. “While stature of a lawyer does not necessarily translate into a benefit for the client, it certainly does not disadvantage the client.”

Formidable legal team

Reichler is described in the Foley Hoag website as one of the world’s most respected and experienced practitioners of public international law, specializing for more than 25 years in the representation of sovereign States in disputes with other States, and in disputes with foreign investors.

He has earned the description of being a “giant-slayer,” having humbled the United States in the case filed by Nicaragua against the superpower’s low intensity conflict campaign in the Central American country.

Former journalist now lawyer Romel Bagares, who wrote the article “The South China Sea Arbitration: the Philippines’ Nicaraguan moment” for VERA Files noted “the uncanny parallels and ironies “in the case of Nicaragua vs U.S and Philippines vs China.

“Not to be missed is the fact that Foley Hoag, the Philippines’ lead counsel in the South China Sea Arbitration is the same American law firm that won for Nicaragua respect in the world stage in its legal battle against the United States at the height of the Cold War,” Bagares said. “Both cases involved a behemoth in world politics – the United States in the 1986 case, China in the 2016 case.”

The online site The Litigation Daily named Reichler “A Litigator of the Week.” A post by Michael D. Goldhaber said, “Paul Reichler has been dubbed Mr. World Court for his dominance at the seat of public international law. But in the past week Mr. World Court became Mr. Arbitration. It was a great week for public health and maritime borders. And a terrible week for international bullies.”

Cost of Arbitration

The fee of $7 million does not include the cost of arbitration which PCA asks Parties involved in the case to shoulder.

The PCA is not part of the United Nations but is an intergovernmental organization established by the 1899 Hague Convention on the Pacific Settlement of International Disputes.

Headquartered at the Peace Palace in The Hague, the Netherlands, the PCA facilitates arbitration, conciliation, fact-finding and other dispute resolution proceedings among various combinations of States, State entities, intergovernmental organizations, and private parties.

Its rules of procedure allow the PCA to ask the Parties to deposit equal amounts as advances for the costs of the arbitration to cover the fees and expenses of members of the Tribunal, Registry, and experts appointed to assist the Tribunal, as well as all other expenses including hearings and meetings, information technology support, among many others.

Should either Party fail to make the requested deposit within 45 days, the PCA said, the Tribunal informs Parties so that one of them may make the payment.

In the Award the Tribunal mentioned that “while the Philippines paid its share of the deposit within the time limit granted on each occasion, China has made no payments toward the deposit. Having been informed of China’s failure to pay, the Philippines paid China’s share of the deposit.”

PCA said it would “render an accounting to the Parties of the deposits received, and return any unexpended balance to the Parties’ after the issuance of this Award.”

Budget Secretary Ben Diokno said he has no idea yet how much was allotted by the Aquino administration for the payment of the Arbitration Cost.

But a lawyer experienced in international litigations said arbitration cost is about $400 to $450 per hour not limited to hearing sessions, and including research and study.

Last July 12, the Arbitral Tribunal released a decision that overwhelmingly favored the Philippines. It invalidated China’s all-encompassing nine-dash line map.

Senior Associate Justice Antonio T. Carpio, who has been advising the Philippine team and gone around the country and the word to rally support for the Philippine case, said the Tribunal’s ruling “re-affirms mankind’s faith in the rule of law in peacefully resolving disputes between States and in rejecting the use or threat of force in resolving such disputes. This rule of law is enshrined in the United Nations Charter.”

Former Foreign Secretary Roberto R. Romulo, who said the Arbitral Court’s Award provides a permanent frame to adherence to the rule of law and respect for multilateral institutions in any conversation on the South China Sea, said “whatever the cost, it was worth it.”

The pitfalls of joint development of Spratlys with China

Ellen

Foreign Secretary Perfecto Yasay, Jr.

Foreign Secretary Perfecto Yasay, Jr.

It’s best that Foreign Secretary Perfecto Yasay Jr. study carefully the intricacies of joint exploration with China so he can advise President Rodrigo Duterte to go slow about it.

Yasay, in his clarification about what he said in an interview with Agence France Presse last week, said, ““As the ruling will not address sovereignty and delimitation, it is possible that some time in the future, claimant countries might consider entering into arrangements such as joint exploration and utilization of resources in disputed areas that do not prejudice the parties’ claims and delimitation of boundaries in accordance with Unclos (United Nations Convention on the Law of the Sea).”

Even if the Philippines gets a favorable ruling Tuesday on the issues they raised against China before the United Nations Arbitral Court, there would still be a lot of complications about joint development of the disputed areas in the South China Sea.

The number one problem is China’s concept of “setting aside dispute and pursuing joint development.”

One of the resource materials on the issue in the website of the China’s Foreign Ministry, says “The concept of setting aside dispute and pursuing joint development has the following four elements: 1. The sovereignty of the territories concerned belongs to China. 2. When conditions are not ripe to bring about a thorough solution to territorial dispute, discussion on the issue of sovereignty may be postponed so that the dispute is set aside. To set aside dispute does not mean giving up sovereignty. It is just to leave the dispute aside for the time being. 3. The territories under dispute may be developed in a joint way. 4. The purpose of joint development is to enhance mutual understanding through cooperation and create conditions for the eventual resolution of territorial ownership.”

Yasay should clarify with China the statement “to set aside dispute does not mean giving up sovereignty” because the Philippine could be the one who would be giving up sovereignty over the disputed area to be developed. No two countries could have sovereignty over the same area.

In one of his lectures on the South China Sea, Senior Associate Justice Antonio T. Carpio pointed out that the Kalayaan Island Group (KIG) is part of Philippine national territory as defined in the Philippine Baselines Law (RA No. 3046, as amended by RA No. 5446 and RA No. 9522) and in Article 1 of the 1987 Philippine Constitution on the National Territory.

“Any President who concedes sovereignty over the KIG to China culpably violates the Constitution and commits an impeachable act,” he said.

Another problem would be the provision in the Constitution (Sec 2, Art XII) that states, “The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens.”

China National Offshore Oil Corporation is state-owned.

JMSU map by VERA Files

JMSU map by VERA Files

Yasay should ask a briefing about the Joint Marine Seismic Undertaking (JMSU) that the Philippines, China and Vietnam undertook over a large portion of the Spratlys including Reed Bank near Palawan in 2004.

A brainchild of former House Speaker Jose de Venecia, Jr. JMSU was first a joint exploration project between the Philippines and China as part of package of multi-billion dollar projects which include the Northrail, NBN-ZTE telecommunications deal and Zhongxing Technology Equipment (ZTE) Diwalwal mining project.

Then acting Justice Secretary Merceditas Gutierrez warned De Venecia and the DFA the Constitutional provision that “exploration” of Philippine natural resources be only by the State.

They were able to find a way to circumvent that provision by using the word “seismic undertaking.” Vietnam, which also claims parts of the area to be covered by the deal, later on joined the project.Findings in that “seismic undertaking” were supposed to be used in the next phase of the cooperation which was joint development.

In 2008, Bayan Muna partylist questioned the JMSU’s legality before the Supreme Court. In deference to the case filed by the Philippines before the U.N, the Supreme Court withheld decision on the JMSU case in order not to give China reason to cite it as proof that the Philippines had recognized its (China) ownership claim over the disputed area.

The U.N. court decision on Tuesday will not say who owns Scarborough shoal and the disputed rocks and shoals in the Spratlys.

The Philippines in its suit filed in January 2013, asked the arbitral tribunal to rule on three basic issues: the validity of China’s nine-dash lines; low tide elevations where China has built permanent structures should be declared as forming part of the Philippine Continental shelf; and the waters outside the 12 nautical miles surrounding the Panatag Island (Scarborough shoal) should be declared as part of the Philippine’s 200 nautical mile Exclusive Economic Zone.