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MANILA, Philippines – Despite Beijing’s refusal to raise the Scarborough Shoal standoff to a global court, the matter can be resolved through a compulsory settlement provision under the United Nations Convention on the Law of the Sea (UNCLOS), a Department of Foreign Affairs (DFA) official said Friday.
“We believe so, there is still a mechanism within the UNCLOS that we can use to peacefully settle the dispute but I am not in a position to divulge the details. There is still a window we can explore,” Atty. Henry Bensurto Jr., secretary general of the Commission on Maritime and Oceans Affairs of DFA, told the Senate Committee on Foreign Affairs hearing.
Pressed to elaborate on the mechanism or strategy Manila is eyeing in order to resolve in a peaceful and legal framework the dispute that began April 10 over fishing rights at the area just 120 nautical miles from Zambales province, the DFA official declined.
“This is a matter I am not in a position to divulge. At this point in time, perhaps the government will come up with the official statement but for the meantime we have to explore all legal aspects to solve the dispute, and bring this matter in a peaceful resolution,” he said. But he said the Philippine government can use the compulsory settlement provision of Part 15 of UNCLOS if China does not want to agree to settle the dispute in the Scarborough Shoal.
“China is a signatory and has ratified the UNCLOS, and they are bound with the provisions of the UNCLOS. If there is a violation of any provision of the UNCLOS, you can go the dispute settlement mechanism, under Part 15 of the UNCLOS. “If China doesn’t agree, then obviously we have to go back to the drawing board, and come up with an approach on these aspects and we have to continue. We are putting our heads on these and we should not give up, and find a way that could peacefully settle the dispute, including the ability of the Philippines to bring China to some sort of compulsory dispute settlement even without its consent,” Bensurto explained.
Bensurto said both the Philippines and China has signed and ratified the UNCLOS, and both parties are bound by all the provisions of the agreement. “UNCLOS is essentially a document signed and ratified by both parties, and there is a framework to come to a vote; that legal framework contained a provision on disputes settlement that we are trying to invoke with China, and to appeal obviously into a friendly way, bringing these matters before a tribunal or third party adjudication which is consistent with these settlements. One cannot argue that this one is not peaceful, but on the contrary this is part and parcel of a peaceful settlement of disputes,” he said.
Under UNCLOS, he said there is a menu of choices to settle the dispute. “You have the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), you have a permanent arbitral tribunal and the special arbitral tribunal.”
“If China will not give its consent [for us] to bring this to a third-party adjudication . . . we feel there is still a window that we can do that, but you don’t do things immediately; you have to scale down and calibrate, because you want this to be settled peacefully,” he said.
DND-AFP invokes defense treaty with US
Meanwhile, Philippine defense and military officials are looking to maximize the existing decades-old Mutual Defense Treaty between the country and the United States to modernize the military in the face of China’s encroachments on Philippine maritime territories in the West Philippine Sea (South China Sea).
Defense Secretary Voltaire Gazmin said the brewing conflict with China over the Panatag (Scarborough) Shoal and the Spratly Islands will be a test for the US government to show it is willing to come to the aid of a small nation against China’s aggression.
“Most importantly, it shall further enhance our security relations and, most importantly, demonstrate our unequivocal resolve to support each other against the threats of external aggression and the enemies of freedom and liberty,” said Gazmin in a speech read for him by Defense Undersecretary Honorio Azcueta during the closing ceremony Friday of the Balikatan exercises held in Camp Aguinaldo in Quezon City.
President Benigno Aquino III sent Gazmin and Foreign Affairs Secretary Albert del Rosario Thursday to Washington for the 2+2 Dialogue with their US counterparts, Secretary of State Hillary Clinton and Defense chief Leon Panetta.
As the Scarborough standoff is widely seen to be on the agenda, the Philippine officials are expected to tap into the long-standing relations with the US and the MDT. Gazmin said that “as long-time and durable friends and allies,” there are common obligations as embodied in the defense treaty that must be rekindled not only in joint military and humanitarian exercises.
Gazmin did not specify what military hardware they are going to request from the US government, but based on the modernization wish-list priorities these are going to be F16 jet fighters and naval warships. Gazmin brought along with him Air Force chief Lt. Gen. Gregorio Macapagal and Navy chief Vice Admiral Alexander Pama.
Armed Forces Chief of Staff Gen. Jessie Dellosa said it is the mandate of the RP-US Defense Treaty to respect national sovereignty, peace and goodwill. “Today’s challenges in the context of the dynamics in the South Asia and the Asia Pacific Region require pragmatism and the use of smart power; it is apparent that a blend of the concepts of might is right and right is might should be explored, shared along friends and allies and eventually put to good use,” he said.
“For the Philippines, striking a workable mix may also require using capacities to defend its dignity and its rights as a sovereign nation. While diplomacy is the best policy, it should be matched with capabilities to attain stability, security and development.”
United States Ambassador to the Philippines Harry Thomas Jr. said the defense treaty between the Philippines and his country was based on “mutual respect” and thus, each party has the obligation to work together for peace and stability.
Earlier, Gazmin lamented China’s disrespect for diplomatic negotiations, which led him to say that only a modernized military can stop China’s aggression in the Panatag Shoal, an area that is well within the 200-nautical-mile exclusive economic zone (EEZ) of the Philippines and part of Masinloc, Zambales.
In an ambush interview, Azcueta declined to specify what kind of help the Philippines is going to ask from the US. “Actually, there are no details but the [defense and foreign affairs secretaries] went to the US for discussions on our existing treaty with the purpose of enhancing our relations. The topics will be pertaining to defense and security and some economic and political matters,” he said.
“We are concerned and the Philippines and US will be tackling how we can maintain the freedom of navigation and unimpeded commerce in that area,” he said.
Later in the same interview, Azcueta said the government will be requesting from the US some military hardware for territorial defense. “We will ask from the US some excess defense articles and the systems that were removed from the Hamilton-class cutter…maybe long-range patrol aircraft and radar systems,” Azcueta said.
Defense spokesman Peter Paul Galvez said the “Philippines-US 2+2 meeting” on April 30 in Washington is intended to be a consultation for defense, security, political, and economic policies.