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[Analytics] 2019: Year of rough seas for Philippines in the face of belligerent China

While President Duterte did not refer to China by name, his warning came after security officials reported that Beijing had been deploying warships in Philippine territorial waters without proper coordination. AFP/Guang Niu. Sketched by the Pan Pacific Agency.

Yes, the Chinese have been sneaking in and around the West Philippine Sea before, but in 2019, Filipinos faced empirical and visceral proof of China’s constant, widespread, and belligerent presence in Philippine waters. JC Gotinga specially for the Rappler.

A Chinese ship that had all the markings of a military vessel sank a Filipino boat in the West Philippine Sea in June, abandoned the distressed fishermen in the cold of the night, and took time to apologize for it.

Off the Mindanao backdoor, in the same month, an unauthorized Chinese aircraft carrier and its strike group passed Sibutu Passage, the marine-rich deep channel that separates the Philippines from Malaysia and links Southeast Asia to the wider Pacific region.

And just last September, a Chinese warship warned a Filipino-crewed commercial vessel, Green Aura, against passing by Panatag Shoal, which is clearly Philippine territory.

The incursions from China are staggering – and they happened without the Duterte administration raising the issue to a level commensurate to the Philippines’ clear ownership of these waters.

A swarm

In a September 2019 report, the Philippines’ defense department said at least 389 Chinese vessels of various types were spotted in Philippine waters from January to August this year. Prior to this, 434 Chinese vessels did the same for the 12 months of 2018.

Of the Chinese vessels that crossed Philippine waters from January to August this year, at least 25 were warships. In 2018, the defense department monitored 63 warships as well.

What bears noting this year is that more Chinese vessels sailed closer and deeper into Philippine territorial waters, according to the defense department. They were not just sailing through the Philippines’ 200-nautical-mile exclusive economic zone (EEZ), they were entering the country’s 12-nautical-mile territorial sea.

“There is an emerging trend of Chinese warships passing through the Sulu-Celebes Sea, particularly in Balabac Strait and Sibutu Passage,” the report said.

It does not end with the mere passage of overt warships.

The number is 322 for both 2018 and the first half of 2019: at least 322 Chinese vessels pretended to be fishing boats, but are actually “believed to be part of China’s maritime militia.” These trawlers have been prowling our seas and swarming our islands, harassing our fishermen, and providing back-up to Chinese naval and coast guard ships that hamper our own naval patrol and resupply missions.

A justice’s ‘good authority’

Indeed, 2019 is the year Filipinos found out about these incursions from the most unexpected channels, putting senior government officials on the spot and disturbing their warm ties with China.

Take the case of the Chinese aircraft carrier’s crossing of Sibutu Pasage without the knowledge of Philippine authorities.

The public would never have known about it had not Antonio Carpio, at the time Supreme Court Senior Associate Justice, mentioned it during a lecture he gave to students at the UP College of Law on July 19, the Friday before President Rodrigo Duterte’s fourth State of the Nation Address the next Monday.

Carpio, a staunch advocate of the West Philippine Sea, said he “had it on good authority.”

Defense Secretary Delfin Lorenzana initially denied the information from Carpio. But about a week later, he confirmed that several Chinese warships had indeed been traversing Philippine waters incognito since February.

The first issue was the absence of prior coordination with the government, because international maritime law decrees innocent passage for any vessel going through another country’s waters. Lorenzana said the usual practice among naval states was to inform one another if their warships were making an entry, for whatever legitimate reason.

When this began to cause public uproar, President Rodrigo Duterte issued an order that unauthorized foreign vessels be driven out of Philippine waters even by “unfriendly means” if necessary.

It was a bold statement but the Philippine Navy never quite figured out how to carry it out. It simply did not have the hardware to pose a credible challenge to the well-equipped Chinese navy.

And then, somehow, the conversation took an inward turn: Did the Philippines even have the right to protest the Chinese warships’ incursions? The United Nations Convention on the Law of the Sea (Unclos) does not exclude warships from the doctrine of innocent passage.

China’s double standard

What was Manila’s issue with Beijing, then?

Carpio pointed out that the problem was China’s “double standard” – it demanded innocent passage for its warships but it would never let any other country’s vessels anywhere near waters it claims to own, even in the West Philippine Sea.

Case in point: the Green Aura incident in September, in which a voice that claimed to be from a “Chinese naval warship” denied a Greek-owned, Liberian-registered oil tanker passage near Panatag Shoal (Scarborough Shoal).

The Green Aura’s captain was Filipino, Manolo Ebora, and he knew that, one, there was no official notice to seamen preventing them from taking the route near Panatag Shoal, and, two, the shoal belonged to the Philippines, which meant it was none of China’s business to have patrols there driving other vessels out.

Ebora’s story of standing up to the Chinese “warship” and coast guards resonated with many Filipinos. Defense bloggers hailed him as a hero. His hometown, Batangas City, officially recognized him as one.

Even Lorenzana commended Ebora for having done “the right thing” and for his “admirable” insistence on his ship’s right to innocent passage. The defense chief also called on China to “respect international maritime law,” noting that Panatag Shoal was well within the Philippines’ Unclos-mandated EEZ.

But Malacañang thought it was “not our concern” simply because the Green Aura, although it had an all-Filipino crew of 22, was not a Philippine ship. In fact, Presidential Spokesperson Salvador Panelo took issue with Ebora taking the route near Panatag Shoal, saying the seasoned mariner and Navy reservist seemed to be looking for trouble.

Foreign Secretary Teodoro Locsin Jr said he would not file a diplomatic protest over the Green Aura incident because it might jeopardize some 400,000 Filipino seafarers all over the world.

The Duterte administration, except Lorenzana, missed the crux of the matter: the Chinese voice declaring to Ebora that Panatag Shoal was under “Chinese jurisdiction” and the Chinese vessel exercising that by forcing an international commercial vessel to change its course.

The Gem-Ver case

Even when a Chinese trawler sailed straight into a Filipino fishing boat anchored at Recto, or Reed Bank off Palawan, in the middle of the night on June 9, the government could not afterwards face the issue head on.

What Locsin raised before the UN was the abandonment of Gem-Ver’s 22 fishermen after the boat capsized from the impact. Unclos required the Chinese vessel to assist the victims, which it did not, leaving them to their fate, which, fortunately, had a Vietnamese fishing boat come to their rescue.

That the abandonment was an offense was basic. The broader concern was the Chinese trawler’s action – whether it was on purpose, as Lorenzana initially said – and its presence at Recto Bank, also well within the Philippine EEZ.

Recto Bank is an underwater feature, a rise in the seabed that allows vessels easier mooring than in deeper water.

Duterte justified the presence of the Chinese trawler, the Yuemaobinyu 42212, and other Chinese fishing boats and ships in the area of Recto Bank by claiming that he had a “fishing deal” with Chinese President Xi Jinping: Chinese fishers could access Recto Bank and in return, Filipino fishers could return to Panatag Shoal.

Critics like Carpio flagged the dangers of Duterte’s claim. For one thing, there was no document to prove that the deal even existed. Besides, Filipino fishermen had not, and have not, been able to freely access Panatag Shoal’s inner lagoon since China occupied it in June 2012.

If there really is a deal, then it’s decidedly lopsided in favor of China.

Was the Yuemaobinyu 42212 indeed an intruder that meant to harm Filipino fishermen? Or was it an invited guest, and its ramming of the Gem-Ver a mere accident, or “maritime incident” as both Malacañang and Beijing put it?

Even Lorenzana, who was the first to inform the public and raise alarm about the incident, walked back on his initial assertion that it was an intentional hit.

Low intensity conflict

And yet, the government itself acknowledges that Chinese fishing boats are in the West Philippine Sea not just to fish.

The September 13 report by the Department of National Defense (DND), prepared upon the request of Bayan Muna Representative Carlos Zarate, stated that Chinese fishing vessels were monitored providing support to Chinese coast guard and naval operations in the West Philippine Sea.

A total of 322 such boats were spotted in the area in the first half of 2019, most of them around Pag-asa Island, the Philippines’ largest, civilian-populated outpost in the Kalayaan Island Group, the Filipino portion of the Spratlys.

Those vessels function as a militia – a paramilitary force – that “could be used for asymmetric warfare of sea control and denial, such as swarming tactics and ramming of other claimants’ vessels in the area, enabling it to make advancements in the maritime region without causing tension in the area,” the DND report said.

“It is certainly unlawful coercion,” said James Kraska, a maritime law expert who heads the Stockton Center for International Law at the United States Naval War College, in a Rappler Talk interview in November.

It could be seen as a “gray zone” tactic, Kraska added, referring to “low-intensity conflict” or “hybrid warfare” between countries in peacetime, or the absence of overt war.

“The reason that people are talking about the gray zone in the maritime context of the South China Sea is because there seems to be a great disparity in power between China and its neighbors, and a willingness to use these methods that are unfriendly, or they may be coercive, or they may even be unlawful, even if they’re not engaging in armed conflict,” Kraska said.

The South China Sea is the internationally recognized name of the body of water that includes the Philippine EEZ, which the Philippines calls the West Philippine Sea.

“So there’s certainly pressure that’s being applied by China against its neighbors, notably Vietnam and the Philippines,” Kraska added.

Although a study by the Washington-based Center for Strategic and International Studies (CSIS) found evidence linking the Yuemaobinyu 42212 to the Chinese government, Kraska thinks it’s “a little bit immaterial” whether the trawler was indeed operating for the state.

“China as a flag state has a responsibility to ensure that its vessels…comply with international standards. That includes the collision regulations,” he said.

When the purported private owner of the Yuemaobinyu 42212 surfaced months after the incident with a perfunctory apology coursed through a Chinese fishing association, the Philippine government readily accepted it and, for all intents and purposes, considered the matter resolved.

When fishing is a crime

Why is the Duterte administration so reluctant to stand up to China when Manila has an international, Unclos-based arbitral award to back its maritime claims in the West Philippine Sea?

Even countries such as Vietnam and Indonesia, without the advantage of a court victory, have been putting China to task for misbehaving in their waters.

Vietnam strongly demanded the exit of a Chinese survey ship from Vanguard Bank, and now mulls taking the matter to an international court.

Indonesia has been blasting Chinese fishing boats caught poaching in its waters because “China calls it fishing; Indonesia calls it crime,” its fisheries minister said in 2018.

But the Duterte administration said it was just waiting for an opportune moment to bring up the ruling with China. The “opportune moment” finally came on August 29 when Duterte brought up the arbitral award before Xi in a bilateral meeting in Beijing. As before, Xi bluntly rejected the ruling.

Duterte then also expressed concern over China’s warships traversing Philippine waters. Again, Xi simply brushed the issue aside, saying they were not required by law to ask permission to pass any country’s waters, according to Lorenzana’s recollection of the meeting.

What worries analysts well-versed in the West Philippine Sea dispute is that the same inconsistency in the government’s public messaging on the matter may be replicated in closed-door meetings where its fate gets decided – for instance, the Bilateral Consultative Mechanism (BCM) between the two countries’ foreign policy officials that happens twice a year.

The BCM is off-limits to the media and the public. Who knows what goes down during those sessions, beyond the very measured press releases the Department of Foreign Affairs puts out afterwards?

Government can do more

With all this, Chinese presence in Philippine waters may very well become the norm.

“If these are not objected to, then in the future, maybe in the near future, China will keep on insisting that this be followed and the Philippines might eventually follow it in practice, which at some point also will become law. It will become binding on the parties unless the Philippines constantly objects and exercises its own rights,” said Jay Batongbacal, director of the UP Institute of Maritime Affairs and the Law of the Sea.

Locsin said he “fires off” one diplomatic protest after another following Carpio’s advice, if only to put on record that the Philippines finds China’s behavior unacceptable.

That’s the bare minimum, Batongbacal said, and there’s actually more that the government can do about it.

“For as long as the government thinks that this should be done only on its own, only the Philippines alone, it will be impossible, obviously. That’s why it’s important to develop friendships and alliances,” he added.

This year, and even in 2018, the US has increased its naval presence in the South China Sea, including the West Philippine Sea. Visiting Manila in November, US Defense Secretary Mark Esper said they have done more freedom of navigation and overflight operations (Fonops) “in the last year or so than in the previous 20-plus years.”

Japan and Australia have also increased strategic engagements with the Philippines.

These regional allies have not hidden their concern over China’s rise, which can no longer be accurately termed “peaceful,” according to Kraska.

Joint operations with foreign powers could actually help assert the Philippines’ legal victory, Carpio has said. But Duterte rejects joint patrols, saying they would only spark war with China.

Although the Armed Forces of the Philippines (AFP) maintains a steady stream of other joint exercises with its foreign allies and partners, Batongbacal said that without the “buy-in” from the top leadership, these allies may eventually become wary of dealing with the Philippines.

“This kind of effort requires long-term commitment. If you’re not seen as a reliable partner, then eventually these countries will look for others, or invest in others more than in us,” Batongbacal said.

Bigger trouble

Throw in the fact that the AFP has entered into an agreement to allow the China-backed Dito Telecommunity to install cell sites in its camps and bases, which experts have flagged as a spying risk, foreign allies might get spooked knowing Beijing would be listening in on their conversations, and end up cutting down on interactions with the Philippines.

And the bigger trouble is, China wouldn’t stop at just the West Philippine Sea.

“What we also need to think of is that given China’s needs and expansion, its requirements for security, food, et cetera, they will not stop in the South China Sea. [Its] expansion will continue beyond the South China Sea, and that means eventually, they will also begin asserting certain rights and privileges in Philippine inter-island waters. It’s inevitable,” Batongbacal warned.

China has been buying islands in Oceania. Chinese companies have leased Fuga Island in Cagayan, and Grande and Chiquita islands in Subic Bay. What the maritime lawyer is saying is not science fiction.

“That’s why it’s important for us to hold fast to the West Philippine Sea, because the next area of expansion is simply inter-island waters. Sulu Sea is a prime candidate, not only for fishing but for military activities,” Batongbacal added.

At the height of public attention on the warship incursions in July and August 2019, the Philippine military called out China’s “duplicity” in not paying the customary courtesy of a notification.

But as the generals always point out, to protest this matter with China is not up to them but to the political leadership. Ultimately, it’s up to President Duterte, the commander-in-chief of the military and chief executive of the land, to decide how to deal with China.

And in 2019, he did let the intruder in.

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