'UNCLOS won't resolve sea row'

Posted at 06/22/2012 7:43 AM | Updated as of 06/22/2012 7:50 AM

WASHINGTON – US accession to the United Nations Convention on the Law of the Sea (UNCLOS) will not resolve conflicting claims by a number of countries including the Philippines and China to barren islands, reefs, shoals and coral outcrops in the South China Sea, said retired admiral James Lyons, a former commander of the US Pacific Fleet.

“The argument made that we must have a ‘seat at the table’ to secure the US Navy’s freedom of navigation and other transit rights, including the right of innocent passage, is nonsense,” he wrote in an article published in Wednesday’s issue of The Washington Times.

President Aquino during an official visit to Washington in early June to seek US backing in the West Philippine Sea was careful not to publicly voice support for the Obama administration’s efforts in Congress to make the US a signatory to UNCLOS, but aides privately said the Philippines supported such a move.

Lyons said the assertion that US rights to freedom of navigation would be eroded unless it joined the treaty was simply false.

The United States has enjoyed the same navigation rights and freedoms available to the 153 parties to UNCLOS for decades and will continue to do so without becoming a member, he said.

Ratifying the treaty will not end excessive and illegal claims by other nations nor will it help resolve US issues with Iran and China, he said.

He pointed out Iran was not a party to the treaty and therefore viewed itself as not bound by its terms.

China, which is party to UNCLOS, has nonetheless undertaken illegal maritime claims in the South China Sea, manipulating the text of the treaty as a means to support these claims, Lyons said.

“Furthermore, China illegally has claimed sovereignty over almost the entire South China Sea, rendering UNCLOS inapplicable in China’s view,” he said.

He said the UNCLOS had provisions that could seriously interfere with legitimate US naval operations by allowing other nations to avail themselves of the treaty’s mandatory dispute-resolution mechanisms.

“These could be used to interfere with training exercises and other operations, such as hydrographics or intelligence. Such interference could adversely impact our anti-submarine warfare operations with serious consequences,” he added.

Feasible but costly

Meanwhile, the former president of the Association of Structural Engineers of the Philippines (ASEP) yesterday said putting up a permanent structure in the disputed Panatag (Scarborough) Shoal is feasible but costly.

While it would be the Aquino administration that will decide on whether a permanent structure would be built in Panatag Shoal, the possibility is present, said former ASEP president Cesar Pabalan.

“This is possible but (erecting a bridge from Zambales to Panatag Shoal) would be very long. It would also be very costly, the funding, where will it come from?” said Pabalan.

It has been reported that the shoal is located 124 nautical miles from Zambales province.

Pabalan added that even if the shoal is at times exposed to harsh weather such as typhoons that bring about rough seas, infrastructure projects could still be built there.

“It can withstand weather. It can be designed (and built) as long as it would conform with the National Building Code and National Structural Code of the Philippines. Anything that would be designed and constructed should conform with our building codes,” Pabalan said.

Apart from complying with the building code, he added that the design should also take into consideration “the lateral load against the wind and the earthquake.”

He also said that there “should be a geotechnical report on the material, classification of soil so that we can choose what foundation type would be used.”

He says the depth of the water leading to the shoal will also not be a problem.

He, however, stressed that the success of these projects will depend on whether or not there will be objections from other claimant countries.

US, PH stand by treaty

For the United States’ top diplomat in the Philippines, there is no doubt and no question that his government stands by its commitment under the Mutual Defense Treaty (MDT).

“We stand by our treaty commitment. It’s amazing to me that people would question that,” US Ambassador Harry Thomas Jr. told the media during the first Kapihan sa Embahada.

He said the US is concerned about the events in the West Philippine Sea (South China Sea), including the tensions surrounding Panatag Shoal, emphasizing that Washington opposes coercion by any nation to advance its claim and the US clearly supports the Code of Conduct between China and ASEAN.

However, Thomas did not give a categorical answer when asked about the provision in the MDT on an attack on one party being considered an attack on the other, saying it is hypothetical and the US hopes for de-escalation and no violence in the disputed waters.

“All we can say (is) we stand by our commitments and I’m not going to change that. The Secretary of State, the President of the United States have also said we stand by our treaty commitments,” he said.

US embassy Political Counselor and acting Deputy Chief of Mission Joy Yamamoto said, “The language of the MDT demonstrates our very strong commitment to the Philippines.”

According to Yamamoto and Thomas, the US supports settlement of disputes in the West Philippine Sea towards the use of a rules-based regime in accordance with international law and the International Tribunal on the Law of the Sea (ITLOS).

“We’ve been very consistent throughout the dispute in supporting international law and settlement of this kind of dispute under international law so we would support China and the Philippines settling the issue through international means,” Yamamoto said.

China accused the US of creating tension in the region and repeatedly warned that territorial disputes over the West Philippine Sea were issues between China and claimant countries. Beijing said it would not allow US involvement in territorial disputes.

The ambassador said the US has been very clear that it takes no side in territorial disputes or cross cutting claims between several states not just China, but urged all parties to sit down and iron out disputes in a peaceful and legal manner.

Although the US position is not to get involved in territorial disputes, Secretary of State Hillary Clinton recently testified before the Senate Foreign Relations Committee hearing concerns on the US accession to UNCLOS and said Chinese claims exceeded what was permitted by the convention.

“Clearly this is something that Secretary Clinton recently testified in support of the law. We’ve to wait to see what our Senate… we’re under orders to be very careful in terms of pending legislation we comment on,” Thomas said. “As Secretary Clinton has said, she views that (UNCLOS) as a reaffirmation of our support for freedom of navigation, unimpeded commerce and treaty-based decision making on international disputes.”

The US expressed support for the establishment of the National Coast Watch Center that will enable the Philippines to know what is happening in its maritime territory on a 24-hour basis.

Foreign Affairs Secretary Albert del Rosario said the US support for the National Coast Watch System was announced during the luncheon hosted by Clinton last June 8 in Washington.

The US, Thomas said, is assisting the Philippines in the coast watch system to be able to see what is going on in the maritime territory, especially in terms of humanitarian assistance and disaster relief.

Clinton said the US support would come in the form of intelligence exchanges on maritime domain issues and funding for the construction of the National Coast Watch Center as well as equipment and training.

The Department of National Defense (DND) also expressed support yesterday for the return of Philippine vessels to Panatag Shoal.

Defense Secretary Voltaire Gazmin said Philippine ships should return to the shoal once the weather condition improves since Chinese vessels have remained in the area.

“Why not? The Chinese are not leaving the area. We need to go back,” Gazmin said in Filipino when asked if he would recommend sending back ships to the shoal once the weather improves.

Gazmin said China could use the presence of its ships in the area to assert its claim over the shoal, which is well within Philippine territory.

“Pag hindi mo tinauhan yung lugar na yun (If you don’t put personnel in that area), they (China) can cite occupancy, that they are there and that will be the basis for their claim,” the defense chief said.

Ships of the Coast Guard and the Bureau of Fisheries and Aquatic Resources (BFAR) might be sent to the shoal in case the government decides to restore its presence in the disputed area, he added.

Last week, President Aquino ordered two Philippine ships to pull out of the shoal due to bad weather.

Ordered to return to port was a Philippine Coast Guard ship and a BFAR vessel, which symbolized the country’s claim over the area.

Aquino ordered the pullout even if tropical storm “Butchoy” was hitting the Philippines’ eastern seaboard, not the western portion where Panatag Shoal is located, although the seas around Panatag were rough.

Del Rosario said they would evaluate whether the ships would be sent back once the weather improves.

The Department of Foreign Affairs had claimed that China would also pull out its ships but this was later denied by Beijing.

Beijing’s denial dashed hopes that the standoff, which triggered fresh tensions in the West Philippine Sea, was nearing its end.

DND earlier claimed that the pullout of vessels would not weaken the Philippines claim over the area, which is rich in marine resources.

Last Monday, Aquino said the government is ready to send ships back to the shoal if Chinese vessels remain in the area.

“The guidelines are very clear. If there are vessels that are not ours, we have to send back our vessels,” the President said. – With Evelyn Macairan, Pia Lee-Brago, Alexis Romero