MEL STA. MARIA | Be careful with China, Mr. President
The online news portal of TV5
"CHINA MAY CONDITIONALLY OPEN SHOALS TO FILIPINOS". This is the banner-headline of the 19 October 2016 Philippine Star issue. This is disturbing. This may weaken the West Philippine Sea (WPS) Decision favorable to the Philippines if not managed correctly. It can strengthen China’s position on the disputed islands and surrounding body of water.
How can this happen?
There are four sources of International law:1.) treaty, 2.) customary international law, 3.) opinions of well-known international experts/publicists, and lastly, 4.) "generally-accepted-principle-of-law-recognized-by-civilized nation." And included in this last source is the doctrine of estoppel positing that a country cannot act inconsistently damaging others.
If the Philippines asks permission from China to utilize the shoal and China allows it, this can signify that the Philippines, through President Duterte, has recognized that another country, China, has superior rights over the disputed islands and surrounding waters. It also suggests the Philippines’ abandonment of its comprehensive gains in the West Philippine Sea decision of the Permanent Arbitration Court. Expectedly, China, if the occasion arises, will readily announce that it shall "conditionally open the shoal to the Filipinos" – a categorical assertion of ownership.
These developments will provide China with factual and legal basis to claim that the Philippines is in estoppel. The Philippines’ acts admit China’s preferential rights. It can no longer act inconsistently to the prejudice of China – meaning, that the Philippines is barred from asserting any sovereign rights over the disputed islands and body of water.
China may be inveigling the Philippines. After suffering a serious setback with respect to the WPS decision, it is patiently inducing the Philippines, through its President, to undertake a series of acts which are calculated to weaken if not totally destroy the Philippine’s territorial/sovereign claims.
For starters, as to the WPS decision, President Duterte said "of course, it will take a back seat" in his China visit. China likes this. While Duterte said that it was in line with courtesy, China can take this as an act of timidity. And then to exacerbate the whole situation, while the President is not discussing the WSP decision in China at the moment, the Chinese media now is talking about it. In essence, the Chinese government is the one vicariously speaking because, as we all know, China controls its media.
InterAksyon reported: "In an editorial Tuesday, China's nationalistic Global Times newspaper called on the government to "reciprocate Duterte's overture" by giving the Philippines access to fishing grounds near Scarborough Shoal – a move which would imply that such rights were China's to give."
South China Sea looms over Duterte visit
Amidst all these, President Duterte openly expressed to the official Xinhua news agency that "only China can help us." It was a short and meek statement and sounds almost desperate and remorseful. The timidity of Philippine representatives, headed by President Duterte himself, on the West Philippine Sea despite the noise in China can be considered an acquiescence to the Chinese position. It may support the possible assertion of China of the doctrine of estoppel.
This uncanny pattern is consistent with China’s previous actions. We have already seen that , after China signed the "Declaration on the Conduct of Parties in the South China Sea" with ASEAN countries mandating consultations in case of conflict in the region, it nevertheless brazenly and unilaterally occupied our islands and bodies of water sans prior negotiations with us or ASEAN. That treaties must be complied with in good faith , known as pacta sunt servanda in international law, is nothing to China as against countries it can bully, like the Philippines and Vietnam. This shows that China cannot be fully trusted.
Now, China’s strategy appears to have changed track. It learned a lesson from its loss in the West Philippine Sea decision. If it cannot beat the Philippines illegally, it will try to beat the Philippines "legally". Thus, whereas before, their island-grabbing was declared as violations of international law, now they can assert that its claim is legal based on the doctrine of estoppel – a "generally-accepted-principle-of-law-recognized-by-civilized nation" which, in turn, is one of the sources of international law. Also, whereas before, it was a blatant direct action of island-grabbing, now it is a calculated series of conciliatory events where even the Philippine head of state participates.
And that strategy is patiently being implemented now by China. And it seems that President Duterte might be falling into the trap by giving China, wittingly or unwittingly, the evidence. President Duterte and his administration must be intelligent and smart to know this. Otherwise, their "mission" in China may proved to be damaging to the Philippines.
And yes, though we again heard President Duterte utter strong words that the Philippines will insist on what it owns, his actions will be more telling in international law. In short, actions always defeat words anytime.
President Duterte seems to believe that the collective wisdom of the Filipino people can be determined by surveys. He showed this prior to the elections when he referred to his survey-leads even during the debates. Perhaps now is the time to again listen to the people. InterAksyon.com reported that in a recent SWS survey, it was shown that for Filipinos, China "scored the lowest trust rating of -33%, which SWS deems bad." The lesson is this: the Philippines must not fully trust China.
President Duterte must be super-careful. I hope his cabinet and experts study the implications very well. In the long run, we might lose our islands and the territories if this matter is not managed well. If it happens, President Duterte and his cabinet must account for this terrible eventuality grossly and unimaginably damaging to the Filipino people.
Let's pray that President Duterte does the right things.