MANILA - President Rodrigo Duterte's "defeatist" statement on the Philippines' maritime disputes with China in the South China Sea when he delivered his 5th State of the Nation Address, undermines the improved positions espoused by Manila's foreign and defense ministries, a maritime law expert said Tuesday.
“Yesterday’s SONA practically brings us back to pre-2019. Parang balik na naman tayo sa dati, instead of reinforcing the little improvements that were made last year in terms of our posture and position,” Jay Batongbacal, Director of the UP Institute for Maritime Affairs and Law of the Sea, told ABS-CBN News.
Duterte admitted during his penultimate SONA on Monday that he is "inutile" and "cannot do anything" against Beijing's pursuit of territory and resources in the South China Sea, parts of which are also claimed by Manila.
The Philippines should "just cool off" and pursue "diplomatic endeavors" to counter China's sweeping claims to the area "unless we are prepared to go to war," he said.
Batongbacal lamented that Duterte's statements effectively backpedal on, or do not reinforce "the little improvements" in the position and posture that the Department of Foreign Affairs and Department of National Defense took since last year.
He cited the official invocation in notes verbales of the 2016 arbitral ruling that favored the Philippines and invalidated China’s sweeping claims over almost the entire South China Sea, statements of support in favor of Vietnam, and statements of the United States and Australia recognizing the proper interpretation and application of UNCLOS in the South China Sea in accordance with the arbitral ruling.
UNCLOS stands for the United Nations Convention on the Law of the Sea, of which the Philippines, China and over 160 others are parties.
“These are all legal positions as well as diplomatic positions that really would have strengthened the Philippines’ hand in bargaining and negotiating with China for the long term. But that is undermined by this kind of contrary and defeatist statements,” Batongbacal said.
“The repetition of these (defeatist) statements is very unfortunate, considering that both the DFA and DND have already made some headway in at least controlling the damage that was done in the previous years," he said.
"Similar statements made before had been explained or walked back or addressed. And afterwards, especially since last year, there was an improvement in the posture and positioning of the Philippines in so far as this issue was concerned."
Batongbacal described Duterte's declaration that China is “in possession of the property” as dangerous since “the seas are not just subject to possession by any state,” following the UNCLOS.
“That is very dangerous because in the first place, the seas are not just subject to possession by any state. The Law of the Sea convention clearly lays out the rules on what states can or cannot do at sea. And one of them is that the sea is not subject to claims of possession, not even claims of sovereignty, except in so far as the territorial sea is concerned, extending up to 12 nautical miles from your baselines,” Batongbacal explained.
He said the West Philippine Sea - the part of the South China Sea being claimed by the Philippines - cannot be considered as China’s possession because Manila is still able to use it, other nations that exercise navigational rights pass through it, other states around the South China Sea are able to use their respective portions of the South China Sea, and Beijing “has never been able to completely exclude anyone from the South China Sea.”
China, he said, may be considered to be in possession only of the artificial islands as it is able to exclude other entities or other persons from entering those, and using the space and the possessor derives sole benefit from that location.
“China has never been able to completely exclude anyone from the South China Sea. And they have never been able to derive exclusive benefits from the South China Sea. Maybe that’s what they are trying to do now. And that’s precisely why the President’s position on this is wrong because it’s like he is acknowledging that that is what they are doing,” Batongbacal said.
“That kind of statement, coming from the President of the Philippines could be seen as a legally binding statement. We could be held in estoppel, in legal terms. That means, you cannot go back on what you said. We could be held in estoppel in the future if we try to assert our rights and entitlements in the West Philippine Sea because of that statement of the President,” he warned.
Foreign Affairs Secretary Teodoro Locsin Jr. maintains the disputes between the Philippines and China on the South China Sea remain, despite Duterte’s declaration that Beijing is “in possession of the property.”
In a tweet, Locsin said the two countries “agree to disagree”, and continue disputing each other’s position.
“…Nonnegotiable. The dispute remains. PH and CHN agree to disagree and continue disputing each other’s entitlement by law on our part and claim on China’s part…,” he said in a tweet, reacting to a Bloomberg article on Duterte's SONA.
China continues to disregard the UN-backed arbitral court's ruling that nullified its historical claims in the South China Sea, reprimanded it for the marine environmental damage caused by its artificial island-building activities on disputed features there, and declared the Scarborough Shoal to be open for fishermen of any nationality who traditionally harvest there.
Aside from China and the Philippines, other claimants in the South China Sea include Brunei, Malaysia, Vietnam and Taiwan.
South China Sea, maritime dispute, China, Philippines Jay Batongbacal, West Philippine Sea, Teodoro Locsin Jr.,