Duterte’s ‘agreement’ with China

Basking in the glory of his record-breaking high approval ratings in the latest opinion surveys, President Duterte began his fourth State of the Nation Address (Sona) by highlighting the minuscule 3 percent that disapprove of his performance. But it is not really the numbers that matter, he added, trying hard not to gloat. It is rather the “will and the courage” to do what is “right and just.”

One of the things many Filipinos have been waiting to hear from him is his explanation of what is right and just about the way he has handled China’s intrusion into the Philippines’ exclusive economic zone (EEZ) in the South China Sea. He promised to give his Sona audience a full “lecture” on the issue.

Keen observers of China’s aggressive actions in the area have long asked how Mr. Duterte intends to reconcile the favorable ruling that the Philippines obtained from an international tribunal two years ago with his manifest appeasement policy toward China. One such observer is Supreme Court Senior Associate Justice Antonio Carpio, who has rigorously studied the issues and, in fact, helped prepare the case at the Permanent Court of Arbitration in The Hague.

Justice Carpio seeks assurance that the Duterte administration has not set aside this crucial ruling in the course of its so-called “pivot to China.” There are constitutional issues involved here, he warns. The most important of these leaps out of a paragraph in Article XII of the 1987 Constitution. “The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.”

The arbitral court’s 2017 decision explicitly rejected China’s nine-dash-line theory, which lays claim over almost all of the South China Sea based on historical grounds. The same ruling defines the nature of the various disputed features found in this vast area. For example, Panatag or Scarborough Shoal, while clearly lying within the Philippine EEZ, is recognized as a traditional fishing ground in which the fishing rights of fishermen of various nations are to be respected. Therefore, no one country, neither the Philippines nor China, has the right to keep away other nationalities from fishing in that area.

Having refused to participate in the proceedings of the tribunal, China, of course, also staunchly refused to be bound by its decision, notwithstanding its being a signatory of the United Nations Convention on the Law of the Sea. That no international body has the power to enforce it does not, however, diminish the ruling’s importance. It remains a normative guidepost for clarifying and settling conflicts over rights to the ocean, especially where the EEZs of different coastal states overlap one another.

The tribunal’s ruling could have been invoked to demand the immediate restoration of the traditional fishing rights of Filipino fishermen, after these were summarily denied by Chinese authorities in the months following China’s illegal takeover of Scarborough Shoal in 2012. But Mr. Duterte chose not to assert the arbitral decision to reopen the shoal to Filipino fisherfolk. Instead, as he himself repeatedly reminds his listeners, he used his friendship with the Chinese president to return Filipino fishermen to their old fishing grounds.

This nonantagonistic approach would have somehow demonstrated the pragmatism of his China pivot. But then, this President loves to talk. In one of his many unscripted forays into foreign policy, Mr. Duterte boasted that he got the Chinese president to agree to a mutual understanding on fishing rights. China will allow Filipinos to fish in Scarborough Shoal and, in return, the Philippines will allow the Chinese to fish in Recto Bank.

If indeed such agreement was made, Justice Carpio warned, not only did Mr. Duterte effectively set aside The Hague ruling, he would also have possibly committed an unconstitutional act. Arguing that Recto Bank (or Reed Bank), which is within the Philippine EEZ, is not a traditional fishing ground, Carpio noted that Mr. Duterte did not have the power to share the marine resources of Recto Bank with other countries. He called on the Senate to examine the terms of this supposed verbal agreement with Xi Jinping.

But in true authoritarian fashion, Mr. Duterte angrily reacted by calling Carpio names and bringing up irrelevant issues. At one point, he said he was invoking the Mutual Defense Treaty with the United States to stop China’s incursions into the country’s EEZ. He challenged Carpio to join him in a US-led expedition to put China in its place. Foreign observers were shocked to hear this kind of talk from the President. Some wondered if he was rethinking the wisdom of his China pivot.

The Sona was his chance to explain. But, by going off-script once again, he only muddled the issue even more. “Kaya sinabi ko, ‘Let us do this mutually.’ Of course, when Xi says, ‘I will fish,’ who can prevent him? And sabi ko naman, ‘We will fish because we claim it’… Kaya ang sabi ko… When I said, ‘I allowed,’ that was on the premise that I own the property. Pero hindi tayo in control of the property. Ayan magsabi sila, ‘Of course, I will allow you.’ Kaya pinabalik.” This was the most convoluted part of a speech that, for the most part, suffered from incoherence.

But, perhaps, the big question worth asking is whether any of this matters to the other branches of government. It’s the same question the American public asks in the face of mainstream media’s efforts to document the lies that US President Donald Trump routinely tells the American people. Does it really matter?

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