Position on Scarborough Shoal issues Document Transcript PHILIPPINE INSTITUTE FOR PEACE, VIOLENCE VIOLENCE PHILIPPINE INSTITUTE FOR

OR PEACE , AND TERRORISM RESEARCH 2nd Floor, CPDRI Room, Asian Institute RESEARCH AND TER RORISM of Tourism, University of the Philippines Commonwealth Avenue, 7, West Cr ame, No. 5, Road Diliman, Quezon City 1101 Philippines San Juan, Metro Manila, P hilippines 4333870 Telephone +632 9946972 Fax: +632 www.pipvtr.com www.pipvtr.co m POSITION ON SCARBOROUGH SHOAL/WEST PHILIPPINE SEA ISSUES, MARITIME ZONES BILLS AND ARCHIPELAGIC SEA LANES BILLS Rommel C. Banlaoi Head, Center for Intelligenc e and National Security Studies (CINSS) of the Philippine Institute for Peace, V iolence and Terrorism Research (PIPVTR) Delivered at the public hearing of the C ommittee on Foreign Relations, thePhilippine Senate, on 27 April 2012, at the Se ssion Hall, 2nd Floor, Senate of the Philippines, GSIS Bldg., Financial Center, Pasay City. The Honorable Chairperson and distinguished members of this committe e. It is my pleasure to appear before you today to offer my scholarly insights o n the agenda of this public hearing, particularly in the light of the on-going s tandoff with China in Panatag Shoal or Bajo de Masinloc, which the international community calls Scarborough Shoal. I am not a lawyer so I am not in the right p osition to talk about the legal ramifications of the West Philippine Sea, Mariti me Zones Bills and the Archipelagic Sea lanes Bills. But as a scholar of interna tional politics and being the Head of the Center for Intelligence and National S ecurity Studies (CINSS) of the Philippine Institute for Peace, Violence and Terr orism Research (PIPVTR), an independent, non-government research organization, I am keenly following these issues not only for research and instructions but als o for policy research and development. I stand before you today to share my humb le thoughts on the present agenda in aid of legislation. Let me start by stressi ng that the concept of West Philippine Sea and bills on Philippine Maritime Zone s and Archipelagic Sea Lanes are not only domestic issues but they are also inte rnational concerns with profound national and regional security implications. Un less we have a broad understanding of the international politics surrounding the se issues and concerns, using a new name and passing domestic laws can just be m oot and academic, if not an exercise infutility. The Philippine government has a dopted the West Philippine Sea (WPS) to refer to the body of waters that is deem ed part of Philippine territory, which is located West of our Archipelago. The m ain intention of the Philippine government in using WPS is to assert our territo rial claim in our disputed maritime zones. The use of the South China Sea (SCS), the government asserts, has subliminal message that this body of waters belongs to China; thus there is a need to change the name to convey the stand of the Ph ilippines. Vietnam calls it East Sea (ES).So, why dont we call it WPS indeed? But whats in a name? The use of WPS, SCS or ES is just a geographic description. Whi le it has psychological and propaganda value for states using these names, they are just labels devoid of any legal meaning that can be used for any form of own ership. The use of the Indian Ocean does not mean that this water belongs to Ind ia. The passage of Philippine Archipelagic Baselines Law in 2009 and the propose d Maritime Zones bills and the Archipelagic Sea Lanes bills are part of the Phil ippine governments legal offensives to assert our territorial claims in this disp uted body of waters in accordance with international law. With limited military capability to assert our claim, the most logical and pragmatic option for the Ph ilippines is to really go legal. Even if, for the sake argument, we have suffici ent military capability to defend our claim, going to war to settle this kind of territorial disputes is counter-productive for national and regional security. Based on my understanding of international politics, laws passed domestically on ly have domestic applications for internal law enforcement purposes. They have i nternational applications only if they are consistent with international laws an d are recognized by the international community. Since I am not an international lawyer, I must admit my limitations to discuss the legal intricacies of these i ssues, particularly the detailed provisions of Maritime Zones and Archipelagic S ea Lanes bills. I would like to underscore, however, that if domestic laws of on e sovereign state compete with and even being challenged by domestic laws of oth er sovereign state, particularly if it pertains to territorial ownership, then w e have an inter-state problem. In this case, the problem can be solved either th

rough bilateral negotiation (multilateral if it involves more than two states), international arbitration, or, as a last resort, war. The last option is definit ely out of Philippine agenda. But if the Philippines is attacked militarily beca use of territorial disputes with our neighbors, then we can invoke the Mutual De fense Treaty (MDT) with the United States. But this is an ugly scenario that eve ryone 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 the constitutional processes o f the U.S. Congress. The first option apparently puts the Philippines in a very disadvantaged position if the negotiation is done bilaterally with China because of the asymmetry of our relations. But this is a pragmatic, albeit difficult, o ption. The Philippines wants1For my detailed take on this issue, see Rommel C. B anlaoi, West Philippine Sea: Whats in a Name?, Newsbreak (15 June 2011) to multilat eralize the problem through the Association of Southeast Asian Nations (ASEAN). But the grim reality is that ASEAN does not have common position on the South Ch ina Sea problem, particularly in the context of regional power dynamics and intr a-ASEAN territorial disputes. The Philippine government regards the second optio n as our best option international arbitration. But international arbitration can only occur if the other party is willing to put the issue to this process. Sinc e international arbitration is a creature of a contract that involves all parties concerned, doing it unilaterally is a gargantuan mission. As a sovereign state, the Philippines is entitled to pass any domestic laws pertaining to our territor ial waters, maritime zones and archipelagic sea lanes that we really deem necess ary to promote our national interests. China also passed its own domestic law in 1992 declaring almost 80% of the South China Sea as part of its territorial wat ers and contiguous zones. The Philippines already passed its Archipelagic Baseli nes Law in 2009 and we are not prevented to pass into law the Maritime Zones and Archipelagic Sea Lanes bills. It is now our call, however, if we have the means and wherewithal to enforce our laws and make violators accountable to these law s. What begs the question at than in the light of the standoff in the Scarboroug h Shoal is why Chinese and other nationalities continue to fish in what we call our waters? For us, other nationalities are not fishing but poaching in our wate rs. We have laws to make poachers accountable. However, these waters have been t raditional fishing grounds of many people of various nationalities for centuries . Thus, preventing them to fish on the bases of our domestic laws is really a ta ll order it requires adequate resources and a strong political will. The situati on is complicated by the fact that other nations claim that the waters that we c all 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 terr itorial disputes in the South China Sea, particularly in the context of the on-g oing standoff between China and the Philippines in the Scarborough Shoal (and ho w to deal with the situation and peacefully resolve the standoff), we also need to understand the relevance of fishing in the maritime territorial disputes. Fis hermen of various national origins are attracted to the South China Sea because of its very rich marine resources. A recent study shows that fish stocks in the South China Sea are a multi-billion-dollar industry, which accounts for as much as one-tenth of the global catch. Since fish protein represents 22 percent of the av erage 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 fo r fish is directly proportional to the increased income of Chinese citizens resu lting from its phenomenal economic growth. The World Bank (WB) has declared Chin a in 2011 as the worlds second largest economy, next to the United States. If its current growth of at least 8 percent annually continues, the International Mone tary Bank (IMF) forecasted that China could be the worlds largest economy by 2016 .5 Thus, Chinas current fishing behavior in the South China Sea is dictated by it s growing demand for these resources resulting from the increased purchasing pow er of Chinese consumers. China is also increasing its naval and maritime law enf orcement capabilities in order to protect its maritime defense (haifang) and mariti me rights and interests (haiyang quanyi or haiquan) in the South China Sea and ot her waters in Asia (such as Senkaku/Diaoyu Island in the East China Sea in confl

ict with Japan and the Yellow Sea in conflict with South Korea). China regards t hese waters as part its territory. I have no more time to discuss in detail the military capabilities of China at present. But suffice for me to say that that P eoples Liberation Army Navy(PLAN) has flirted with the idea of a new type of nava l campaign that encourages attacks against coral islands and reefs (dui shanhu dao jiao jingong zhanyi).Naval experts say that this campaign scenario appears to be tailored to the South China Sea disputes where China might consider attacking is lands and reefs held by other claimants.6 It is not year clear, however, whether this idea has been adopted as an official military campaign strategy of the PLA. My point is that the idea has crossed their minds.2PatrickM. Cronin, ed., Coope ration from Strength: The United States, China and the South China Sea (Washingt on, D.C.: Center for a New American Security, January 2012), p. 55.3Ibid., p. 90 .4PatrickM. Cronin, Chinas Global Quest for Resources and Implications for the Uni ted States(Testimony before the U.S.-China Economic and Security Review Commissio n on 26 January2012). IMF Report: China Will be the Largest Economy by 2016 (25 Ap ril 2011) at http://www.marketplace.org/topics/business/imf-report-china-will-be -largest-economy-2016.6PhillipC. Saunder, Christopher Yung, Michael Swane and An drew Nien-Dzu Yang, eds., The Chinese Navy: Expanding Capabilities, Evolving Rol es (Washington DC: Center for the Study of Chinese Military Affairs at the Insti tute for National Strategic Studies of the National DefenseUniversity, 2011), p. 50. Chinese fishermen in the South China and the Scarborough Shoal do more than fish ing. Observers say that fishing activities are civilian instruments of power that help stake out legal claims and establish national maritime rights. Thus, the Ch inese government protects their fishermen to promote its concept of maritime rig hts and stake out its legal maritime claims. Chinas current behaviour in the Scar borough Shoal is part of this overall power projection. According to are port: C hinese officials are deliberately using civilian maritime law- enforcement vesse ls, rather than the Peoples Liberation Army Navyto enforce Chinas maritime rights a nd fishing laws. Whereas China resorted to using warships over Mischief Reef ter ritorial disputes in the 1990s, the recent assertiveness of China in these water s has been prosecuted largely with civilian instruments of power.8Aside from fis h, China is also convinced to assert its position in the South China Sea because of its increasing and incessant demand for oil. It is estimated that the potent ial oil resources of the South China Sea is 213 Bbbl. There are conflicting clai ms, however, about the size of natural gas and oil deposits in the area. Accordi ng to US Geological Survey, about 60% to 70% of the hydrocarbon resources in the South China Sea are gas. A research conducted by Chinese experts reveals that t hat the total gas resources of the South China Sea can reach 900 Tcf (Total Cubi c Feet) with an annual production of 1.8 Tcf.10 Chinese geologists have recently detected super-thick oil and gas-rich strata in the South China Sea and also id entified 38 offshore oil and gas basins in the area.117Cronin, Chinas 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/milit ary/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.si fy.com/news/huge-source-of-oil-gas-found-in-south-china-sea-news-international-l brokhcdigb.html <accessed on 7 February 2011>. Because of reported oil and gas resources, all claimants in the South China Sea have existing gas and oil exploration activities in the area.12China has explora tion project in Vanguard Bank, which is proximate to Indonesias Natuna Gas Field. Vietnam has projects Dai Hung and Blue Dragon Fields that are adjacent to dispu ted territories in the South China Sea. The Philippines has natural gas power pr oject in Malampaya, which is close to disputed Spratly group of islands. The Phi lippines also has oil development plans in the Reed Bank that is being contested by China. Malaysia, which controls disputed reefs located in oil rich portion o f the South China Sea, has begun its natural gas production from Angsi Field tha t is expected to produce 65,000 b/d of oil and 450 MMscfd of gas. Brunei has exp loration projects in Louisa Reef that is also being claimed by Malaysia. To avoi d conflicts and create a relationship of amity, Brunei and Malaysia decided to e

nter into joint oil exploration projects in Louisa Reef. Brunei also explored th e possibility of joint oil exploration with China considering that China buys an average of20,ooo barrels of oil daily from Brunei.13China has, in fact, recentl y announced its plan to step up oil and natural gas exploration in the South Chi na Sea by spending an average of 500 million Yuan($75 million) a year in the nex t two decades in order to meet the countrys growing imported energy needs, which in 2010 already reached 55 per cent of total domestic consumption.14 It is forec asted that 60% of Chinas oil consumption will be imported by 2020 making gas and oil exploration in the South China Sea necessary to reduce dependence on oil imp orts. Fishy and oily issues currently propel the assertive behavior of China in the South China Sea. Now, how can we respond to a more assertive China? Passing our bills on maritime zones and archipelagic sea lanes will not alter Chinas asse rtive behavior. While we believe that passing these bills will strengthen our te rritorial claims, they will, however, not yet solve our problems in the WPS beca use overlapping claims remain. While we can execute our laws in our non-disputed territories, executing them in disputed territories will be a huge challenge. Even if these laws are consistent with existing international laws, no international law is self-executing.12See Craig Snyder, The Implications of Hydrocarbon Develop ments 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 Br unei Times (3 February2011).14China to Increase Expenditure on Oil, Gas Explorati on, The Nation (25 January 2011) athttp://thenationonlineng.net/web3/business/ene rgy/25742.html <accessed on 7 February2011>. International law is not like domestic law. It differs dramatically in enforcemen t and adjudication. On enforcement, there is no executive to make a state accept a court decision. International politics is a self-help system. In the classic ways of international law, enforcement was sometimes provided by the great power s.15In other words, international politics is still in the state of anarchy where there is no supreme authority above the sovereign state. Conflicts among states are settled either through war or diplomacy. In our conflict with China on the WSP and Scarborough Shoal, our only option is to pursue the diplomatic track and settle this peacefully. Our pursuit of diplomacy with China can only work if we refrain from using words that hurt feelings such as bully, aggressive, provocateur, a nd the like. We can stand firm in our claims by using more constructive words be cause conflicts and cooperation in international politics are also products of s ocial constructions. Friends and foes in international politics are what states make of it. If we call China a bully, then China will be a bully. If we call Chi na a responsible power, China will be pressured to act that way. This is not nai vet. This is handling the situation constructively. Dragging the U.S. into our bi lateral conflicts with China can only complicate things. The Philippines can enl arge our voice in ASEAN if ASEAN can come out with a common position. We can use the international community to get the sympathy of other states. We can 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. The reali ty dictates that in our present circumstances, the only pragmatic option forus i s to patiently convince China in a bilateral way that peaceful cooperation in th e South China Sea is more beneficial than prolonging the standoff and dragging t he Philippines and other claimants into costly conflict. For example, we can enc ourage China to enter into joint maritime patrols of the disputed waters in orde r to promote sustainable fishing practices in the South China Sea. China may hav e the military and economic powers to assert its claims in the Spratlys. The Phi lippines can use the power of ideas to tame China and find just and lasting solu tion to the South China Sea problem. Our on-going dispute with China on WPS is j ust one aspect of our relations with China. Beyond these disputes, our relation with China is productive. China is the15Joseph S. Nye, Understanding Internation al Conflicts: An Introduction to Theory and History,7th Edition (Pearson Longman , 2008). Philippines second largest source of official development assistance, third large st trading partner and fourth largest source of foreign tourists. The years 2012 and 2013 have been declared as years of friendly exchanges between the Philippi

nes and China. Let us not allow the disputes in the WPS and the standoff in the Scarborough Shoal destroy this friendship. Let us talk to China and remind China that the Philippines is a friend and we deserve to be treated that way.