President Duterte’s allies are completely heart-broken that he has been unable to tell China to assume full responsibility for the June 9 ramming and destruction of Philippine fishing boat Gem-Vir 1 by a Chinese vessel on Recto Bank within the Philippines’ Exclusive Economic Zone. But they and DU30 would be over-reacting if they tried to invoke the 1951 Mutual Defense Treaty between the Philippines and the United States in order to make the incident a cassus belli (a cause of war) between China and the United States.
Gem-Vir 1 is nowhere near the category of the US battleship Maine, which was blown up in Havana harbor on Feb. 15, 1898, with all its 260 officers and men on board, during Cuba’s uprising against Spain. This finally led to the Spanish-American war, which culminated in the battle of Manila Bay on May 1, 1898 when Admiral George Dewey demolished all the Spanish forces. In the Treaty of Paris of Dec. 10, 1898, Spain relinquished all its colonial possessions, including the Philippines, to the US.
Under the terms of the MDT, “each Party recognizes that an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes. Any such armed attack and all measures taken as a result thereof shall be immediately reported to the UN Security Council, and terminated only after the Security Council has taken the measures necessary to restore and maintain international peace and security.”
For the purpose of this article, an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the parties, or on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific. In his letter to Foreign Minister Carlos P. Romulo on January 6, 1979, US Secretary of State Cyrus Vance said, “an attack on Philippine armed forces, public vessels or aircraft in the Pacific would not have to occur within the metropolitan territory of the Philippines or island territories within its jurisdiction in the Pacific in order to come within the definition of Pacific area in Article V.”
Metropolitan territory of the Philippines “means all of the land areas and all adjacent waters subject to the sovereignty of the Republic of the Philippines, in accordance with international law, lying within the area delineated by Spain and the United States in the Treaty of Paris of December 10, 1898, and in the Treaty of Washington concluded by the United States and Great Britain on January 2, 1930,” Vance clarified.
But there must first of all be an armed attack, and its object should be either the Philippine armed forces, or a Philippine public vessel or aircraft in the Pacific in order to oblige the US to get involved. Since what happened was obviously an accident, involving a Philippine fishing boat rather than a public vessel, it is not clear what rules or precedents can be used to oblige the UN Security Council to assume jurisdiction over the incident. The incident has been raised before the International Maritime Organization in London, which is concerned with the security, safety and environmental performance of international shipping. It is not clear what the IMO can do to assume jurisdiction and make China accountable.
Nonetheless, the incident has put China on the defensive. DU30 can exploit the situation to compel China to submit to the legal processes established under the 1982 UN Convention on the Law of the Sea (UNCLOS). In 2016, China refused to recognize the decision of the Permanent Arbitration Court at the Hague upholding Philippine rights vis-a-vis China in the South China Sea; DU30 himself refused to assert those rights, in exchange for economic aid and loans from the Xi Jinping government. He has allowed China to control and militarize disputed maritime areas, and flood the country with millions of Chinese transients of questionable security status, leading nationalist groups to accuse him of turning the country into a Chinese province.
Yet it is not entirely true that China has always and totally refused to submit the South China Sea question to international scrutiny and debate. In January 1999, at the Seventh Annual Meeting of the Asia Pacific Parliamentary Forum in Lima, Peru, with nearly a hundred parliamentarians from various countries present, I, as a Philippine senator, succeeded in compelling our Peruvian hosts to put the South China Sea question on the conference agenda, despite the Japanese and Chinese delegations’ determined efforts to have it deleted. No acrimonious words were exchanged, and Vietnam, Indonesia, and Chile, among others, supported my plea to allow the UNCLOS to do its work.
For me, it remains the only valid and workable approach. But we must have the will to make it work.