A one on one with Atty. Proculo Sarmen – A law professor from Liceo de Cagayan University.
Question: Is the Chinese Naval Force’s use of water cannons against the Philippine Navy delivering food supplies to personnel stationed at Sierra Madre at Ayungin Shoal, along with the confiscation of arms and weapons aboard the Philippine Naval Boat, a violation of international law?
If so, can the Philippines invoke the Mutual Defense Treaty with the U.S. Government?
Answer: The incident involving the Chinese Naval Force’s use of water cannons against the Philippine Navy delivering supplies to personnel stationed at Sierra Madre at Ayungin Shoal can be analyzed from the perspective of international law and treaties.
Potential Violation of International Law: The United Nations Convention on the Law of the Sea (UNCLOS)
- The Ayungin Shoal, known internationally as Second Thomas Shoal, is within the exclusive economic zone (EEZ) of the Philippines, as established by UNCLOS.
- The Permanent Court of Arbitration (PCA) in The Hague ruled in 2016 that China’s claims to historic rights within the so-called “nine-dash line” have no legal basis under UNCLOS.
- Any aggressive action by China, such as using water cannons and confiscating arms, could be seen as a violation of the sovereignty and rights of the Philippines under UNCLOS.
Acts of Aggression:
- The use of water cannons and the confiscation of arms could be considered acts of aggression or coercion, which are generally prohibited under international law.
- These actions might violate the principle of peaceful resolution of disputes as outlined in the UN Charter.
Invoking the Mutual Defense Treaty
Mutual Defense Treaty (MDT) between the Philippines and the United States (1951)
- The MDT commits both nations to support each other if either is attacked by an external party.
- Article IV of the treaty states that an armed attack on either party in the Pacific area would compel each party to act to meet common dangers.
- Article V specifies that an armed attack includes attacks on the metropolitan territory of either party, or on the island territories under its jurisdiction in the Pacific, or on its armed forces, public vessels, or aircraft in the Pacific.
ANALYSIS:
Whether the Incident Qualifies:
The incident needs to be evaluated to determine if it constitutes an “armed attack” as per the terms of the MDT. The use of water cannons might be seen as a hostile act but not necessarily an armed attack unless it leads to significant harm or a direct military confrontation.
- The confiscation of arms, while a serious act, may not immediately qualify as an armed attack under the MDT.
Diplomatic and Legal Responses:
- The Philippines might first seek diplomatic channels, including protests through the United Nations and ASEAN, and bilateral discussions with China.
- If the situation escalates or if similar incidents recur, the Philippines could discuss with the United States whether the MDT might be invoked, considering the broader strategic and political implications.
CONCLUSION:
While the actions by China at Ayungin Shoal likely violate international law, particularly UNCLOS, invoking the MDT with the U.S. would require careful consideration of the nature and severity of the incident.
The Philippines may need to pursue a combination of diplomatic, legal, and strategic responses before potentially escalating to invoke the MDT.
