Position on Scarborough Shoal issues


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Position on Scarborough Shoal issues

  1. 1. PHILIPPINE INSTITUTE FOR PEACE, VIOLENCE VIOLENCE PHILIPPINE INSTITUTE FOR PEACE, AND TERRORISM RESEARCH 2nd Floor, CPDRI Room, Asian InstituteRESEARCH AND TERRORISM of Tourism, University of the Philippines Commonwealth Avenue, 7, West Crame, No. 5, Road Diliman, Quezon City 1101 Philippines San Juan, Metro Manila, Philippines 4333870 Telephone +632 9946972 Fax: +632 www.pipvtr.com www.pipvtr.com POSITION ON SCARBOROUGH SHOAL/WEST PHILIPPINE SEA ISSUES, MARITIME ZONES BILLS AND ARCHIPELAGIC SEA LANES BILLS Rommel C. Banlaoi Head, Center for Intelligence and National Security Studies (CINSS) of the Philippine Institute for Peace, Violence and Terrorism Research (PIPVTR) Delivered at the public hearing of the Committee on Foreign Relations, thePhilippine Senate, on 27 April 2012, at the Session Hall, 2nd Floor, Senate of the Philippines, GSIS Bldg., Financial Center, Pasay City.The Honorable Chairperson and distinguished members of this committee.It is my pleasure to appear before you today to offer my scholarly insights on theagenda of this public hearing, particularly in the light of the on-going standoffwith China in Panatag Shoal or Bajo de Masinloc, which the internationalcommunity calls Scarborough Shoal.I am not a lawyer so I am not in the right position to talk about the legalramifications of the West Philippine Sea, Maritime Zones Bills and theArchipelagic Sea lanes Bills. But as a scholar of international politics and beingthe Head of the Center for Intelligence and National Security Studies (CINSS) ofthe Philippine Institute for Peace, Violence and Terrorism Research (PIPVTR), anindependent, non-government research organization, I am keenly following theseissues not only for research and instructions but also for policy research anddevelopment. I stand before you today to share my humble thoughts on thepresent agenda in aid of legislation.Let me start by stressing that the concept of West Philippine Sea and bills onPhilippine Maritime Zones and Archipelagic Sea Lanes are not only domesticissues but they are also international concerns with profound national andregional security implications. Unless we have a broad understanding of theinternational politics surrounding these issues and concerns, using a new nameand passing domestic laws can just be moot and academic, if not an exercise infutility.The Philippine government has adopted the West Philippine Sea (WPS) to referto the body of waters that is deemed part of Philippine territory, which is locatedWest of our Archipelago. The main intention of the Philippine government in 1
  2. 2. using WPS is to assert our territorial claim in our disputed maritime zones. Theuse of the South China Sea (SCS), the government asserts, has subliminalmessage that this body of waters belongs to China; thus there is a need to changethe name to convey the stand of the Philippines. Vietnam calls it East Sea (ES).So, why don’t we call it WPS indeed? But what’s in a name?1The use of WPS, SCS or ES is just a geographic description. While it haspsychological and propaganda value for states using these names, they are justlabels devoid of any legal meaning that can be used for any form of ownership.The use of the Indian Ocean does not mean that this water belongs to India.The passage of Philippine Archipelagic Baselines Law in 2009 and the proposedMaritime Zones bills and the Archipelagic Sea Lanes bills are part of thePhilippine government’s legal offensives to assert our territorial claims in thisdisputed body of waters in accordance with international law. With limitedmilitary capability to assert our claim, the most logical and pragmatic option forthe Philippines is to really go legal. Even if, for the sake argument, we havesufficient military capability to defend our claim, going to war to settle this kindof territorial disputes is counter-productive for national and regional security.Based on my understanding of international politics, laws passed domesticallyonly have domestic applications for internal law enforcement purposes. Theyhave international applications only if they are consistent with international lawsand are recognized by the international community.Since I am not an international lawyer, I must admit my limitations to discuss thelegal intricacies of these issues, particularly the detailed provisions of MaritimeZones and Archipelagic Sea Lanes bills. I would like to underscore, however, thatif domestic laws of one sovereign state compete with and even being challengedby domestic laws of other sovereign state, particularly if it pertains to territorialownership, then we have an inter-state problem. In this case, the problem can besolved either through bilateral negotiation (multilateral if it involves more thantwo states), international arbitration, or, as a last resort, war.The last option is definitely out of Philippine agenda. But if the Philippines isattacked militarily because of territorial disputes with our neighbors, then we caninvoke the Mutual Defense Treaty (MDT) with the United States. But this is anugly scenario that everyone does not want to happen. Even if we invoke the MDT,retaliation from the U.S. is not automatic, as it needs to pass through theconstitutional processes of the U.S. Congress.The first option apparently puts the Philippines in a very disadvantaged positionif the negotiation is done bilaterally with China because of the asymmetry of ourrelations. But this is a pragmatic, albeit difficult, option. The Philippines wants1For my detailed take on this issue, see Rommel C. Banlaoi, “West Philippine Sea: What’s in aName?”, Newsbreak (15 June 2011). 2
  3. 3. to multilateralize the problem through the Association of Southeast AsianNations (ASEAN). But the grim reality is that ASEAN does not have commonposition on the South China Sea problem, particularly in the context of regionalpower dynamics and intra-ASEAN territorial disputes.The Philippine government regards the second option as our best option –international arbitration. But international arbitration can only occur if theother party is willing to put the issue to this process. Since internationalarbitration is a creature of a “contract” that involves all parties concerned, doingit unilaterally is a gargantuan mission.As a sovereign state, the Philippines is entitled to pass any domestic lawspertaining to our territorial waters, maritime zones and archipelagic sea lanesthat we really deem necessary to promote our national interests. China alsopassed its own domestic law in 1992 declaring almost 80% of the South ChinaSea as part of its territorial waters and contiguous zones.The Philippines already passed its Archipelagic Baselines Law in 2009 and we arenot prevented to pass into law the Maritime Zones and Archipelagic Sea Lanesbills. It is now our call, however, if we have the means and wherewithal toenforce our laws and make violators accountable to these laws.What begs the question at than in the light of the standoff in the ScarboroughShoal is why Chinese and other nationalities continue to fish in what we call ourwaters?For us, other nationalities are not fishing but poaching in our waters. We havelaws to make poachers accountable.However, these waters have been traditional fishing grounds of many people ofvarious nationalities for centuries. Thus, preventing them to fish on the bases ofour domestic laws is really a tall order – it requires adequate resources and astrong political will.The situation is complicated by the fact that other nations claim that the watersthat we call ours also belong to them. That is why we have disputes in the WPS,which we want to settle through international laws.For us to understand the complex territorial disputes in the South China Sea,particularly in the context of the on-going standoff between China and thePhilippines in the Scarborough Shoal (and how to deal with the situation andpeacefully resolve the standoff), we also need to understand the relevance offishing in the maritime territorial disputes.Fishermen of various national origins are attracted to the South China Seabecause of its very rich marine resources. A recent study shows that fish stocks inthe South China Sea “are a multi-billion-dollar industry”, which accounts for “as 3
  4. 4. much as one-tenth of the global catch.”2 Since fish protein represents 22 percentof the average Asian dietary needs (much higher to the global average of 16percent), fish demands from littoral states in the South China Sea grow.3China, particularly, has already demonstrated its increased demands for fish.4The increased demand for fish is directly proportional to the increased income ofChinese citizens resulting from its phenomenal economic growth.The World Bank (WB) has declared China in 2011 as the world’s second largesteconomy, next to the United States. If its current growth of at least 8 percentannually continues, the International Monetary Bank (IMF) forecasted thatChina could be the world’s largest economy by 2016.5 Thus, China’s currentfishing behavior in the South China Sea is dictated by its growing demand forthese resources resulting from the increased purchasing power of Chineseconsumers.China is also increasing its naval and maritime law enforcement capabilities inorder to protect its “maritime defense” (haifang) and “maritime rights andinterests” (haiyang quanyi or haiquan) in the South China Sea and other watersin Asia (such as Senkaku/Diaoyu Island in the East China Sea in conflict withJapan and the Yellow Sea in conflict with South Korea). China regards thesewaters as part its territory.I have no more time to discuss in detail the military capabilities of China atpresent. But suffice for me to say that that People’s Liberation Army Navy(PLAN) has flirted with the idea of a new type of naval campaign that encourages“attacks against coral islands and reefs” (dui shanhu daojiao jingong zhanyi).Naval experts say that this campaign scenario “appears to be tailored to the SouthChina Sea disputes where China might consider attacking islands and reefs heldby other claimants.”6 It is not year clear, however, whether this idea has beenadopted as an official military campaign strategy of the PLA. My point is that theidea has crossed their minds.2PatrickM. Cronin, ed., Cooperation from Strength: The United States, China and the SouthChina Sea (Washington, D.C.: Center for a New American Security, January 2012), p. 55.3Ibid., p. 90.4PatrickM. Cronin, “China’s Global Quest for Resources and Implications for the United States”(Testimony before the U.S.-China Economic and Security Review Commission on 26 January2012).5 “IMF Report: China Will be the Largest Economy by 2016” (25 April 2011) athttp://www.marketplace.org/topics/business/imf-report-china-will-be-largest-economy-2016.6PhillipC. Saunder, Christopher Yung, Michael Swane and Andrew Nien-Dzu Yang, eds., TheChinese Navy: Expanding Capabilities, Evolving Roles (Washington DC: Center for the Study ofChinese Military Affairs at the Institute for National Strategic Studies of the National DefenseUniversity, 2011), p. 50. 4
  5. 5. Chinese fishermen in the South China and the Scarborough Shoal do more thanfishing. Observers say that fishing activities “are civilian instruments of powerthat help stake out legal claims and establish national maritime rights.”7 Thus,the Chinese government protects their fishermen to promote its concept ofmaritime rights and stake out its legal maritime claims. China’s current behaviorin the Scarborough Shoal is part of this overall power projection. According to areport: Chinese officials are deliberately using civilian maritime law- enforcement vessels, rather than the People’s Liberation Army Navy—to enforce China’s maritime rights and fishing laws. Whereas China resorted to using warships over Mischief Reef territorial disputes in the 1990s, the recent assertiveness of China in these waters has been prosecuted largely with civilian instruments of power.8Aside from fish, China is also convinced to assert its position in the South ChinaSea because of its increasing and incessant demand for oil.It is estimated that the potential oil resources of the South China Sea is 213 Bbbl.There are conflicting claims, however, about the size of natural gas and oildeposits in the area. According to US Geological Survey, about 60% to 70% ofthe hydrocarbon resources in the South China Sea are gas.9A research conducted by Chinese experts reveals that that the total gas resourcesof the South China Sea can reach 900 Tcf (Total Cubic Feet) with an annualproduction of 1.8 Tcf.10 Chinese geologists have recently detected super-thick oiland gas-rich strata in the South China Sea and also identified 38 offshore oil andgas basins in the area.117Cronin, “China’s Global Quest for Resources and Implications for the United States”, p. 2.8Ibid., p. 3.9Global Security, “South “China Sea Oil and Natural Gas” athttp://www.globalsecurity.org/military/world/war/spratly-oil.htm <accessed on 4 January2011>.10 Ibid.11 “Huge Source of Oil, Gas Found in South China Sea”, Sify News (17 January 2011) athttp://www.sify.com/news/huge-source-of-oil-gas-found-in-south-china-sea-news-international-lbrokhcdigb.html <accessed on 7 February 2011>. 5
  6. 6. Because of reported oil and gas resources, all claimants in the South China Seahave existing gas and oil exploration activities in the area.12China has exploration project in Vanguard Bank, which is proximate toIndonesia’s Natuna Gas Field. Vietnam has projects Dai Hung and Blue DragonFields that are adjacent to disputed territories in the South China Sea. ThePhilippines has natural gas power project in Malampaya, which is close todisputed Spratly group of islands. The Philippines also has oil development plansin the Reed Bank that is being contested by China.Malaysia, which controls disputed reefs located in oil rich portion of the SouthChina Sea, has begun its natural gas production from Angsi Field that is expectedto produce 65,000 b/d of oil and 450 MMscfd of gas. Brunei has explorationprojects in Louisa Reef that is also being claimed by Malaysia. To avoid conflictsand create a relationship of amity, Brunei and Malaysia decided to enter intojoint oil exploration projects in Louisa Reef. Brunei also explored the possibilityof joint oil exploration with China considering that China buys an average of20,ooo barrels of oil daily from Brunei.13China has, in fact, recently announced its plan to step up oil and natural gasexploration in the South China Sea by spending an average of 500 million Yuan($75 million) a year in the next two decades in order to meet the country’sgrowing imported energy needs, which in 2010 already reached 55 per cent oftotal domestic consumption.14 It is forecasted that 60% of China’s oilconsumption will be imported by 2020 making gas and oil exploration in theSouth China Sea necessary to reduce dependence on oil imports.Fishy and oily issues currently propel the assertive behavior of China in the SouthChina Sea. Now, how can we respond to a more assertive China?Passing our bills on maritime zones and archipelagic sea lanes will not alterChina’s assertive behavior.While we believe that passing these bills will strengthen our territorial claims,they will, however, not yet solve our problems in the WPS because overlappingclaims remain. While we can execute our laws in our “non-disputed territories”,executing them in “disputed territories” will be a huge challenge. Even if theselaws are consistent with existing international laws, no international law is self-executing.12See Craig Snyder, “The Implications of Hydrocarbon Developments in the South China Sea” athttp://faculty.law.ubc.ca/scs/hyd.htm <accessed on 8 February 2011>.13Goh de No, “Brunei Open to Joint Exploration with China”, The Brunei Times (3 February2011).14“China to Increase Expenditure on Oil, Gas Exploration”, The Nation (25 January 2011) athttp://thenationonlineng.net/web3/business/energy/25742.html <accessed on 7 February2011>. 6
  7. 7. International law is not like domestic law. It “differs dramatically in enforcementand adjudication. On enforcement, there is no executive to make a state accept acourt decision. International politics is a self-help system. In the classic ways ofinternational law, enforcement was sometimes provided by the great powers.”15In other words, international politics is still in the state of anarchy where there isno supreme authority above the sovereign state. Conflicts among states aresettled either through war or diplomacy. In our conflict with China on the WSPand Scarborough Shoal, our only option is to pursue the diplomatic track andsettle this peacefully.Our pursuit of diplomacy with China can only work if we refrain from usingwords that hurt feelings such as “bully”, “aggressive”, “provocateur”, and the like.We can stand firm in our claims by using more constructive words becauseconflicts and cooperation in international politics are also products of socialconstructions.Friends and foes in international politics are what states make of it. If we callChina a bully, then China will be a bully. If we call China a responsible power,China will be pressured to act that way. This is not naiveté. This is handling thesituation constructively.Dragging the U.S. into our bilateral conflicts with China can only complicatethings. The Philippines can enlarge our voice in ASEAN if ASEAN can come outwith a common position.We can use the international community to get the sympathy of other states. Wecan invoke international laws to prove our case before the community of nations.But at the end of the day, the reality of international politics still prevails. Thereality dictates that in our present circumstances, the only pragmatic option forus is to patiently convince China in a bilateral way that peaceful cooperation inthe South China Sea is more beneficial than prolonging the standoff and draggingthe Philippines and other claimants into costly conflict. For example, we canencourage China to enter into joint maritime patrols of the disputed waters inorder to promote sustainable fishing practices in the South China Sea.China may have the military and economic powers to assert its claims in theSpratlys. The Philippines can use the power of ideas to tame China and find justand lasting solution to the South China Sea problem.Our on-going dispute with China on WPS is just one aspect of our relations withChina. Beyond these disputes, our relation with China is productive. China is the15Joseph S. Nye, Understanding International Conflicts: An Introduction to Theory and History,7th Edition (Pearson Longman, 2008). 7
  8. 8. Philippines’ second largest source of official development assistance, third largesttrading partner and fourth largest source of foreign tourists.The years 2012 and 2013 have been declared as years of friendly exchangesbetween the Philippines and China. Let us not allow the disputes in the WPS andthe standoff in the Scarborough Shoal destroy this friendship. Let us talk to Chinaand remind China that the Philippines is a friend and we deserve to be treatedthat way.Please accept my sincere appreciation for extending to me this rare opportunityto impart my humble thoughts today. 8