This article was written last year in time for the anniversary of the arbitral ruling. It has become relevant again because of the recent encounter between the Chinese and Philippine coast guard vessels at Scarborough Shoal, which has led retired Associate Justice of the Supreme Court, Antonio Carpio, to recommend the filing of another case as the Permanent Court of Arbitration at The Hague.
The South China Sea dispute has been in the news cycle ever since Rodrigo Duterte announced a shift in Philippine foreign policy after he was sworn into office. It would not be closely aligned with the United States as the former colonial master but an independent foreign policy where the Philippines would be a friend to everyone but subservient to none.
Since then, it has been a continuing battle between the administration and opposition where the President has been accused of being a traitor and betraying the interests of the country he has sworn to protect and defend from enemies, foreign and domestic. We are not at war with China but the opposition appears to want to drive the country into one.
Duterte has done away with his predecessor’s belligerent policy towards the regional military and economic giant that is China. His policy of rapprochement has led to warmer ties and a de-escalation of the tension-filled relations during the Aquino administration when there was a travel ban in place and Philippine banana exports were subject to quarantine before being allowed entry. This was the offshoot of the Luneta hostage-taking incident which then President, Benigno C. Aquino, refused to apologize to the Chief Executive of the Hong Kong Special Administrative Region. Not only did he refuse but he also did not speak on the telephone to Donald Tsang, which added insult to the injury and death of the Chinese nationals who were taken hostage.
It is only recently that there have been interesting developments in the issue, which was triggered by retired Senior Supreme Court Associate Justice Antonio Carpio’s revelations about what went on behind-the-scenes during the filing of the arbitral suit against China at the Permanent Court of Arbitration at The Hague, in an Inquirer column of his after the death of the former President.
Former Solicitor-General Florin Hilbay, broke his social media hiatus, by posting a detailed account of his version of events which portrayed both the former Justice Carpio and former Foreign Affairs Secretary, Albert Del Rosario in a bad light. As it turns out, both had been for joint-exploration and development of the potential oil and liquefied natural gas reserves to be found at Recto Bank, which is internationally-known as Reed Bank. The arbitral ruling was specific in its language that Recto/Reed Bank is Philippine territory and generates its own exclusive economic zone. This may have been one of the true purposes behind the filing of the arbitral case against China.
Hilbay’s revelations have unmasked the Carpio-Del Rosario tandem as working for vested interests. More than likely it is for Manny Pangilinan, whom Del Rosario has been closely-identified with even before he joined government as the Secretary of Foreign Affairs. Carpio’s former high-power law firm was known to be the legal brains behind the impeachment of then President Joseph Estrada. It was through brilliant legal machinations and power and influence-peddling that Manny Pangilinan was able to gain control of PLDT.
The arbitral award concluded that Reed Bank, which is entirely underwater and sits within 200 nautical miles of the Philippines, is part of that country’s continental shelf. Referring to a specific incident in which Chinese law enforcement vessels prevented the operations of a Philippine survey ship, the tribunal found that “China has…breached Article 77 of the Convention with respect to the Philippines’ sovereign rights over the non-living resources of its continental shelf in the area of Reed Bank” (para. 716). China continues to block the Philippines from exploring for oil and gas at Reed Bank despite the ruling. In November 2018, the two sides signed a memorandum of understanding that could pave the way for oil and gas development at Reed Bank. The details have not been hashed out yet and it is possible that the agreement could pave the way for China to come into technical compliance with the ruling. If Beijing agrees to have a Chinese company invest in a Philippine service contract (SC 72) at Reed Bank under Manila’s supervision, the agreement will be consistent with the ruling. But if China insists on a joint development agreement outside of Philippine jurisdiction, it will cement its noncompliance. AMTI Arbitral Ruling Summary – The AMTI is part of Stratbase-ADR the think-tank of former Foreign Affairs Secretary Albert Del Rosario who is also one the shareholders of Metro Pacific group and a close adviser of Manuel Pangilinan.
The other mystery in this long-running saga is the role of former Senator Antonio Trillanes as the back-channel negotiator with China. The Senator has never made public what exactly was the role he played. What he has admitted to is his trips during the crisis period when the Chinese fishing vessels, also known as their maritime militia, entered Scarborough Shoal together with their Coast Guard white ships, which triggered the standoff.
We were able to interview an individual who had access to a transcript of an off-the-record interview with Senator Trillanes, and per his narration, the latter became the back-channel negotiator through the intercession of then Budget Secretary Butch Abad, with President Aquino. Trillanes made known to Abad the Chinese government functionaries he met during his study tour in 2011. Trillanes gave the interviewers a verbal summary of the aide memoire he submitted to President Aquino after the standoff was resolved to the detriment of the Philippines. He was tasked to negotiate with the Chinese and report directly to then Executive Secretary Paquito Ochoa. At the time of Trillanes’ involvement, there as a total of 31 fishing boats/Chinese maritime militia and 50 dinghies inside the shoal and 2 Chinese Coast Guard white ships outside the shoal. The Philippines only had 1 BFAR patrol vessel inside the shoal and PCG vessels outside the shoal. The timeline is detailed per the infographic below:
The timeline is fits in exactly with the narrative given by Trillanes. The former Senator makes no mention of the names of the Chinese officials he was back-channeling with but official accounts quote him as dealing with China’s Vice Foreign Minister Fu Ying. As it turns out, Foreign Affairs Secretary Albert Del Rosario, then Philippine Ambassador to the US Jose Cuisia and Assistant Secretary Kurt Campbell of the US Department of State, were also dealing with the Chinese Vice Foreign Minister on the same issue.
Trillanes reveals that the Americans wanted the issue resolved before Aquino left for his scheduled state visit to the US. The US also did not want the standoff to deteriorate to the point of conflict because it was an election year and then President Barack Obama was running for a second term. The US did not want another conflict in its hands because Obama made a campaign promise to get American troops home from Iraq and Afghanistan.
Hilbay made very interesting revelations about Carpio. Trillanes does the same with Del Rosario. As it turns out, Del Rosario fed the Philippine Daily Inquirer with two stories; the first was the headline with an accompanying photograph showing the Chinese flag planted on the shoal on June 19. Subsequently, he also fed a story to the Inquirer about a ramming incident where a Chinese fishing boat allegedly hit a Philippine banca. Trillanes himself received confirmation from the Inquirer as per his account. The ramming incident took place but it was not deliberate but more of an accident in nature. It also did not take place in Scarborough as the banca’s origin was Pangasinan, not Zambales, which is closest to Scarborough Shoal.
According to Trillanes, President Aquino’s instructions to him were 1) de-escalation of the tensions between the two countries and 2) the agreement to confidence-building measures between the two countries as indication of good faith. Trillanes claims that he was successful in both if it were not for the contrary actions of Del Rosario in Washington where he was in direct contact with Kurt Campbell.
Where Trillanes was already able to get the Chinese to agree to a sequential withdrawal, Del Rosario reportedly bypassed both President Aquino and then Department of Transportation and Communications Secretary Mar Roxas, by ordering the withdrawal of the Philippine Coast Guard vessel at the shoal by communicating directly with the Coast Guard Commandant. Evidently, Del Rosario was quite powerful during the period he was a Cabinet member.
The last-ditch effort of the government was to “internationalize the issue” by bringing it up during the ASEAN regional forum where all foreign ministers of ASEAN member countries would be present. The Philippine plea fell on deaf ears. This was due to the Philippines being perceived as an interloper in ASEAN during the time of President Aquino because it was parroting US policy towards ASEAN instead of acting as one of the five founding members of the group.
The Philippines went on to file the arbitration case against China. Interestingly, the tribunal’s ruling on the Scarborough Shoal was “The second key finding in the case was that neither Scarborough Shoal nor any of the high-tide features in the Spratly Islands “are capable of sustaining human habitation or an economic life of their own” and “are therefore legally rocks for purposes of Article 121(3) and do not generate entitlements to an exclusive economic zone or continental shelf” (paras. 643 and 646). This means that the only EEZs and continental shelves in the South China Sea are those generated by the coastlines of the surrounding states and, possibly, some of the Paracel Islands. The Spratlys and Scarborough Shoal generate only a series of 12-nautical-mile territorial seas.” In short, the Philippines lost Scarborough Shoal in the end because the tribunal was silent on sovereignty. Instead, the shoal for the joint-exploitation of China and the Philippines. What then of Carpio’s praise for the Murillo-Velarde map, which Mel Velarde graciously purchased, to prove that the Scarborough Shoal or Bajo De Masinloc, as it was known during the Spanish colonial period, has long been recognized as Philippine territory?
To quote Hilbay’s statement, “On the other hand, Justice Carpio’s formal designation was, as he correctly pointed out, that of an “observer” – he had no direct and formal relationship with President Aquino; was not officially part of the legal team which handled the case; and did not have any authority to speak for or bind the Republic, during arbitration. While his expertise on the matter is a given, as an observer, he had no skin in the game. And yet, he has somehow positioned himself as the voice on the West Philippine Sea case, with authority to make accusations and insinuations ex cathedra. For the benefit of us who are not familiar with Latin legal terminology, ex cathedra is “with the full authority of office (especially that of the Pope, implying infallibility as defined in Roman Catholic doctrine.” In short, Hilbay is questioning Carpio, who died and made you King?
In the end, the Filipinos spent over P1B for the arbitral case and still lost Scarborough Shoal in the process. But it was a win for Carpio, Del Rosario and their principal, Manny Pangilinan. Philippine sovereignty was established at the Recto/Reed Bank. Pangilinan has announced he is looking at the China National Oil Offshore Corporation (CNOOC) as Forum Energy’s technical partner for oil and gas exploration in the same area. This, despite an earlier agreement signed between CNOOC and the Department of Energy (DOE) in 2003. A seismic survey was conducted after the agreement was signed during the Arroyo administration which became the basis for the awarding of the service contract by the DOE.
It would be safe to assume that the Administrative Order No. 29 renaming the territorial waters off the South China Sea within the Philippines EEZ as the West Philippine Sea, was also at the prodding of Foreign Affairs Secretary Albert Del Rosario. Think about it. If there is a West Philippine Sea, why isn’t there an equivalent East Philippine Sea in territorial waters off the Pacific Ocean?
What is evident now is both Carpio and Del Rosario were not acting for and in behalf of the interest of the Philippines and Filipinos but for Manny Pangilinan and the Americans. The US became wary of China’s rise during the same period which had Obama announcing his pivot to Asia strategy along with a new free trade agreement, which ironically excluded the Philippines, but included the most favored manufacturing ASEAN member countries. The US is not a signatory to the UN Convention on the Law of the Sea but the arbitral ruling enables it to continue conducting freedom of navigation operations, including naval exercises in the contested waters.
The cabal of Carpio, Del Rosario and Pangilinan expect to get away with murder at the expense of Filipinos in general, and Rodrigo Duterte, in particular. Duterte is just their convenient bogeyman. It is then no mystery at all why Pangilinan and other anti-Duterte oligarchs such as the Ayala’s and Lopez’s are ready to back Manila Mayor Isko Moreno Domagoso’s presidential run. Isko is malleable unlike Duterte who has a mind of his own as former President Fidel Ramos realized too late in the game.
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