Scarborough: Is war necessary?

Ian Alfredo Magno

WITH the escalating tensions involving the West Philippine Sea, the apparent rift between China and the Philippines just doesn’t seem to end soon.  Truth is the issue involves a myriad of entwined international interests, which necessarily involve a host of nations, if not the world.  Hence, both unceremonious and scholarly dialogues on the subject have not entirely discounted the possibility of war in the largest scale.  In fact, some experts surmise that the recent global unrest via the positioning and repositioning of military forces, maritime drills, fly-bys and the show of force are actually indicative of and preliminary to a third world war.

I don’t think so.

In his recent address in a business forum held in Davao City several days ago, incoming President Rodrigo “Digong” Roa Duterte, categorically announced his policy on the matter.  “I will not go to war just because of Scarborough Shoal…” he explained.  Does it mean that we are not standing by our claim on the matter?  Of course not.  Certainly, however, war is not the only option.

In understanding our alternatives, therefore, it is necessary that we first understand both Scarborough itself and the Philippines (as a landmass) vis-a-vis applicable international laws and local legislations affecting the same.

Article I of the 1987 Philippine Constitution defines our National Territory as:

“The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.”

By virtue hereof, the entire territory of the Philippine Republic is recognized as one integrated unit (instead of being divided into more than seven thousand islands). This is referred to as the Archipelagic Doctrine, which is substantially aligned with the delineations of the United Nations Convention of the Law of the Sea (Unclos)–to which, in fact, both Philippines and China are signatories.

What then is the significance of the Unclos?

The significance lies in correlating it with Section 2, Article II of the 1987 Philippine Constitution, otherwise deemed as the “Incorporation Clause,” which states:

“The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.”

Unclos is the International Agreement that resulted from the third United Nations Conference on the Law of the Sea, which took place between 1973 and 1982, and was ultimately entered into force in 1994.  By virtue of the Incorporation Clause of the 1987 Constitution, in theory, the Unclos automatically became part of the laws of the Philippines, and became a direct source of rights and obligations–both international and domestic. The Unclos, therefore, is the foundation upon which we lay our claim versus China before the international arbitral tribunal.

Now, where does Scarborough fit in the picture?

We shall see by how the Unclos demarcates specific areas, by defining certain limits.

Under the Archipelagic Doctrine, waters located within the straight baselines are deemed internal waters, also known as Archipelagic Waters.  Over these waters, Philippines exercises full sovereignty.  These baselines are imaginary lines circumscribing the entire Philippines, which can be gleaned by connecting the outermost points of the (irregularly-shaped) Philippine archipelago.  Meanwhile, waters immediately beyond the baselines are the territorial sea, contiguous zone or exclusive economic zone, as concisely classified herein, thus:

Territorial Sea

• 12 nautical miles (22 kilometers; 14 miles) from the baseline where the state is free to set its own laws; regulate and use any resource

Contiguous Zone

• 12 nautical miles further from the territorial sea where the state can enforce its customs laws, taxation, immigration and pollution control

Exclusive Economic Zone (EEZ)

• extends up to 200 nautical miles (370 kilometers; 230 miles) from the archipelagic baseline; the state has sole exploitation rights over all natural resources, including fishing, mining, and oil exploration among others

Philippines has since then passed laws and administrative orders adhering to the principles embodied in the Unclos, namely:  PD 1599, Establishing an Exclusive Economic Zone and for Other Purposes in 1978;  RA 8550 otherwise known as the Philippine Fisheries Code of 1998;  RA 9552 in 2009, amending RA 3046 entitled An Act to Define the Territorial Sea, as amended by RA 5446;  AO 29 Naming the West Philippine Sea of the Republic of the Philippines and for Other Purposes, in 2012.

Amid the recent conflicting claims, however, the Scarborough shoal is located 198 kilometers west of Subic Bay (situated within the expanse of the Philippine EEZ).  Meanwhile, Scarborough is located 2,659 kilometers south of China.  Do the math.  2,659 kilometers is 2,459-km in excess of the demarcated allocation for EEZs under the Unclos.

Normally, disputes occur only when there arises an overlapping of EEZs among neighboring states.  This scenario, nonetheless, was duly addressed by the Unclos by providing modes of settling disputes among conflicting claimant-states. Lest we beat around the bush, the basic and core question involving the West Philippine Sea dispute with China is, in the first place, “Is there an overlapping of EEZs?” You guessed it right–none.  Yes, you could almost guess how the tribunal’s decision would sound like.

Whether or not China would abide by the tribunal’s decision is a different fairy-tale altogether. Should it refuse to follow, China would have to contend not with the Philippines anymore, but with the force of the collective Family of Peace-loving Nations.

In the final analysis, with a highly winnable case on our fingertips, is war necessary? Or stated otherwise, with us winning round after round via knockout before the arbitral tribunal, would war be a smart option for the Philippines?

Maybe China wants exactly just that, if only to justify its military presence in Scarborough and muddle our otherwise immaculate case folder.  Hence, for the Philippines, war is the last thing we want.

It seems the incoming President fully figured this out when he cleverly pronounced in that business forum in Davao, thus, “We will wait for the arbitral judgment, then I will decide.”  Therefore, as a matter of deliberate strategy, no–not even the slightest insinuation of war is necessary.

 (Atty. Ian Alfredo T. Magno is an associate at Atty. Francis U. Ku and Associates, and is deputy legal officer at Philhealth.)