Remarks of Prof. Jay Batongbacal
UP Institute for Maritime Affairs and Law of the Sea

The Framework of Conduct, One Year After Arbitration

Hi! Good morning and thank you to the Albert del Rosario Institute for inviting me to speak today. Our first two speakers have […] having given massive amount of information. For me, basically what we will do is also to provide some sort of a summary and overall context on what is happening now. I have only one slide which is the what we’re talking about: the maritime jurisdictions of the Philippines in the West Philippine Sea, as you see illustrated on screen. But what has happened since that massive victory that we have had. Although the Philippines under the arbitration […] is supposed to have exclusive rights and jurisdiction to the West Philippine Sea, which is a part that is enclosed in a blue line, and each one of the islands and features in the South China Sea can be disputed and therefore the disputes should be limited to those areas. What has happened since then?

Well first of all, let’s talk about fishing. In the years since 2012 actually, satellite data indicates that foreign fishing within the West Philippine Sea has actually increased. Such that as of the latest […] Based on our latest information, likely Chinese fishing vessels including the maritime militia are operating freely within the area indicated in that oblong, in that oblong shape at sea. Obviously, inroads, Chinese fishing vessels have made massive inroads in the West Philippine Sea coming from what used to be their areas closer to Macclesfield Bank.

Aside from fishing which includes a paramilitary force with maritime militia that operates as a fishing fleet, we also have of course the use based on […] military and paramilitary activities. This includes of course law enforcement activities by the Chinese Coast Guard. We all know that the developments on, the continuous development and construction, and now the near completion of Chinese artificial islands in Spratlys has resulted in them being able to operate 24 hours a day, 7 days a week in the region of the Spratly Islands, and that includes the area of the Kalayaan Island Group. It is not unusual anymore for Chinese Navy and Coast Guard vessels to be always sighted around the islands that we now possess, and all throughout the Spratly Island region.

With the completion of the anti-aircraft air defenses in the artificial islands, then we can expect as well the Chinese influence and presence in the Spratly Island region now is no longer limited to just the sea areas but has actually now gone up higher into the atmosphere, into the air. Hence, the news last year of increasing instances—which has now become normal—of Philippine aircraft being challenged every time they are trying to approach Pag-Asa Island.

Now, in addition, you also have the constant law enforcement presence of China Coast Guard on Scarborough Shoal itself. Because of the presence of the Coast Guard…China Coast Guard, the Philippine Coast Guard is no longer able to even approach the shoal beyond a certain distance. Now, that constant presence is what our fishermen now are dealing with as well. Incidentally, with respect to our fishing activities, compared to the expansion of Chinese fishing activities, our fishing activities appear to have gotten much more limited. The response of the Duterte government initially, of course, if you remember, with respect to Scarborough Shoal. There was even a proposal […] by President himself that would turn Scarborough Shoal into a marine protected area which means that we will be preventing our fishermen from fishing on Scarborough Shoal. A similar proposal was voiced for the Spratly Island region. Again, it’s a good idea to be engaging in marine protection. But on the other hand, that implies that in the face of Chinese expansion of fishing activities, we would in response be limiting our own fishing activities in that area.

Now, in addition to this, to the influence, the control or the access, the restriction of access around these areas due to the constant presence of Chinese military and paramilitary and law enforcement vessels, they have also been sighted operating in the areas between Scarborough and the Philippine coast of Zambales. If you recall the news of the seizure of a US drone late last year in December, that was conducted by a Chinese naval vessel. That took place close to Zambales. Based on the reports, the official public reports, it was only 90, about 90 kilometers away from Subic. And if you are to measure that, that’s actually pretty close.

Now, Chinese vessels are also sighted off the coast of Mindoro. If you recall, that this was reported by the AFP to Congress in the briefing that they provided earlier this year, that as well indicates how close to our coast these Chinese military vessels are operating in order to shadow American and other foreign vessels in that area. Now, in order to get to areas, to these areas, of course, you need access and you can therefore […] expect the presence of Chinese military vessels and aircraft in the access paths to those areas. Remember that in early part of this year, there was a reported near collision between a Chinese surveillance aircraft and a […] airborne warning control surveillance aircraft over Scarborough Shoal. Reportedly, there was a near collision with an American patrol aircraft. It was, if I am not mistaken, called an “unexpected encounter”, an “unsafe encounter.” But that indicates to you the regularity as well of the presence of now Chinese aircraft over Scarborough Shoal. This actually is an extension of what they originally announce in July last year, when they said, when they announced that they will be conducting combat air patrols over Scarborough Shoal. There was even a picture released in the mass media of a Chinese nuclear-capable bomber flying over the shoal itself.

Now, similarly, in the Spratly Island region, there is a reported increase of aircraft activity and we can expect that when the bases in the Spratly Island region become fully operational, then we will have an increase in Chinese aerial activity in that area. Now, in addition, China has also decided to deploy a new instrument of national power, and that is through the marine science research activities. Marine science research vessels of China have been noticed and reported operating in the regions around the Spratlys.

And some of the results of these activities are even publicly announced in the mass media. So for example, when [..] the newest vessels of […] China were conducting various oceanographic and marine scientific research experiments, those were counted widely in the mass media. It included the announcement that they have deployed their deep-diving submersible in the South China Sea. And there had been reports of them being sighted as well at the Reed Bank. […] There is even one published report of a Chinese marine geology, the results from the marine geology project in the sea mounts (?) next to Scarborough Shoal in that area. So these are publicly available information. And of course, there have also been sightings of these vessels traversing the areas near our coast.

And there is even the AFP itself, in a report to Congress also reported sighting then of Ilocos, Vigan at one point earlier this year. And of course, you know that Secretary Lorenzana recently revealed the existence or these sightings of these marine research vessels of Scarborough Shoal. Now although Benham Rise may be the focus on the tension, closer inspection of the published tracks, well released tracks of these vessels indicate that they actually went a lot closer just off Cagayan. In fact, […] online, you will find information on what China calls the West Pacific Ocean Systems Project. A five-year project which includes an installation of an instrument platform just off Cagayan in that area.

The Shangyang-Hong 03 (?) which was the subject of Secretary Lorenzana’s revelation actually spent some time just off Bicol in that area before it conducted various activities including the sampling of the seabed and taking of water samples in the area east of Samar and Surigao. There is actually also a published report, no, there are two published reports in two different scientific journals of an instrument platform having installed by China 80 kilometers off Surigao. So you can see that the extent of Chinese activities not only in the West Philippine Sea but now also spilling over into the Pacific seaboard has become so extensive since last year.

So why do I bring this up? Well this probably just to clarify for our people what is happening on the ground as we talk about things like cooperation and coming up with the Code of Conduct. When we do cooperate, we have to be clear about what is the situation? What are the facts under which we are cooperating. In here, with respect to the West Philippine Sea, we can see that the terms of our cooperation are now defined by the extent of China’s activities there. Now, in the oceans, the most important thing traditionally has been access to the sea, access to the resources. If you can control access, then you can control the seas. And right now what we see here is […] of a lot of access on the part of China while on the other hand, the Philippines, in fact has in a way giving up access. I wonder if people notice that we are no longer exploring for petroleum in these areas whereas Chinese research activities have expanded extensively. Now that is a vindication of how much access we are giving up and how much access China is gaining in the West Philippine Sea. So, […] it should be clear that as we talk about cooperation whether through the Code of Conduct or through other instruments through the bilateral mechanism, cooperation seems to be taking place under conditions of what […] one could term submission really to this situation. Or the very least, […] deference to power. Now, this will translate quickly into a loss […] of autonomy over what happens, loss of autonomy of the country, in its ability to direct control these sea areas, the West Philippine Sea, as well as loss of access. And that is what we really need to be guarded against.

[…] Right now, the title of our symposium mentions the Framework of the Code of Conduct. What is interesting to note, in addition to what has been already mentioned by Justice Carpio who showed you a one-page document. The Philippines has actually been moving backwards on this particular point. Before, when the Philippines started the advocacy of the Code of Conduct […] in the late 1990s to early 2000s, we were looking for, we were advocating for a binding COC with dispute settlement provisions. That was the original idea. That, in recent years, […] was reduced to merely a Code of Conduct with […] dispute settlement provisions which later on became just a Code of Conduct. And then in more recent times was transformed into just a Framework of a Code of Conduct, meaning an outline of a Code of Conduct. And what was recently announced now with much fanfare was Agreement on a Draft of an Outline of a Code of Conduct. So it’s actually been moving backward. We might as well just have stopped in the Declaration of Conduct which was signed in 2002. At least that had more articles, more pages than the one that has been agreed upon. I wouldn’t be surprised if all of a sudden, the next announcement would be with much great fanfare and celebration: Agreement on the Title of a Draft of a Framework of a Code of Conduct.

Now, regardless of the apparent backward movement and apparent loss, ongoing loss of our access and control of the West Philippine Sea, there should be some reason to hope. But hope, however, has to be clearly defined. The reasons for hope have to be clearly defined. The first thing in order for us to have hope in this area, really, is that the Philippines must first and foremost hold the line. The blue line that you see there. We must, first step, initially, of course try to prevent crisis, and perhaps that is one good thing about the efforts of the Philippines right now in, it is, by establishing communications line, lines of communication agreements between Coast Guards then perhaps this can be a means of preventing crisis which can pretty escalate and lead to rapid deterioration of the situation there.

But we have to do more than that. In addition to this, we must also engage in order to protect our minimum interest in the West Philippine Sea. And that is what I do not see happening with this overaccommodation, really, of Chinese activities and interests in that area. We do not seem to be doing enough to protect our own interests. And for what? In order to establish good relations? In order to be secure in our promises of loans and weapons? Now, in addition to that, we must of course also engage in damage control. Damage is what is going on extensively now in the West Philippine Sea, particularly damage to the sensitive resources in that area. While […] Chinese fishing continues, and that includes all of the destructive fishing methods that have been reported a couple of years ago, as late as March, there are still sightings of coral extraction in Scarborough Shoal, for example. If that continues, then you can expect that perhaps, in less than a decade, all coral resources in this area will have been massively, will have been completely extracted.

Plus, in addition to damage control, well assuming that you are able to undertake damage control, then you also have to, you also need to engage in some pushback. Slowly and surely, we need to reestablish our own […] control in these areas. And all of these must take place under a situation where we consider themselves as equal to the other side. Cooperation as equals is the only way for us to effectively do this. But are we even considering that at this point? That is a question that I guess our people have to decide. This will require resolve, number one. Resolve. For us to protect our own interests in the West Philippine Sea. The question we must ask: “Do we have the resolve at this point?” Does the government manifest that resolve? Second, is there a strategy to actually realize what we are resolving to do? Another question that we must constantly ask our government. And lastly, because we cannot do this alone, we are of course a relatively less powerful country, in order to balance the equation, in order to act as equal, we must also rely on support. Do we have this at this point considering what we are doing? These are the questions that our people must ask and must answer for themselves so that they can tell our government what they should be doing, not what they are doing right now.

Thank you very much.