Commentary South China Sea: Waters of Contention

​ Paving the way for China’s occupation of Scarborough Shoal?

Senate President Vicente Sotto III has told reporters that the Senate will be asking the Supreme Court Monday to rule on whether the president can unilaterally abrogate a treaty without the concurrence of the Senate that ratified the pact.

We learned, however, that there are disagreements even among those who want to assert the Senate’s power on treaties what to specify in the petition.

A Duterte ally, Sotto, sources said, is hesitant of signing on something that accuses the president of “grave abuse of authority” when he ordered the unilateral termination of the 1998 Visiting Forces Agreement with the United States last Feb. 11.

News reports quoted him as saying they will be filing a “petition for declaratory relief or mandamus.”

Whatever the senators will be filing before the High Court is welcome. At least they are asserting their power in treaty-making unlike when Duterte unilaterally pulled the Philippines out of the Rome Statue on the International Criminal Court on March 17, 2018 and the majority just folded and surrendered to Malacañang.

The petitions from private lawyers and civil society groups questioning the legality of the ICC withdrawal are still pending with the Supreme Court.

At the forum on the VFA organized by Stratbase ADR Institute Friday, retired Associate Justice Antonio Carpio renewed his warning that “If the Supreme Court will rule that the President , acting alone, can terminate a treaty, and the MDT is a treaty, then it can be terminated (unilaterally.)”

Without the 1951 Mutual Defense Treaty that has governed security relations with the U.S. for the past seven decades, China will have free rein in the Spratlys in the South China Sea where its all-encompassing nine-dashed line map conflicts with the claims of the Philippines, Vietnam, Malaysia, Brunei, and Taiwan.

The scrapping of the VFA, which spells out the legal status of American soldiers in the Philippines, will prevent the full implementation of 2014 Enhanced Defense Cooperation Agreement or EDCA.

Carpio said he agrees with Justice Secretary Menardo Guevarra that the termination of the VFA will make the EDCA practically “useless” and the MDT “a hollow agreement.”

Carpio said, “Without the VFA and EDCA, the Philippines will not be prepared to repel jointly with the U S an armed aggression against the Philippines by a third state.”

“Without the VFA and EDCA, the MDT provision that the U S and the Philippines “jointly by xxx mutual aid will maintain and develop their xxx collective capacity to resists armed attack” cannot be implemented,” the retired justice said.

Carpio said the purpose of EDCA is to allow the prepositioning of U S defense equipment and materials in strategic locations in the Philippines.

He cited as an example the M142 High Mobility Artillery Rocket System (HIMARS) which “could be prepositioned in Philippine bases in Palawan facing Mischief Reef and in Luzon facing Scarborough Shoal.”

He said “HIMARS are GPS guided missiles that can obliterate any structure on Mischief Reef or Scarborough Shoal. They can neutralize any Chinese air and naval base on Mischief Reef or Scarborough Shoal which are intended to enforce China’s nine dashed lines, China’s national boundary in the South China Sea.”

Carpio has warned that China has long coveted Scarborough shoal, 124 nautical miles off Zambales in Luzon. Since April 2012, three Chinese Coast Guard ships guard and control access to the shoal.

The Americans’ presence military presence in the country has been an effective deterrence to China’s plan to occupy the shoal. What will deter them once the MDT is scrapped?