Tuesday, November 25, 2014

SolGen: Sending EDCA to Senate could create ‘constitutional problems’

From GMA News (Nov 25): SolGen: Sending EDCA to Senate could create ‘constitutional problems’

Declaring the Enhanced Defense Cooperation Agreement between the country and the United States  illegal might create "constitutional problems" among the three branches of the Philippine government.

The Supreme Court may not refer the agreement to the Senate without declaring EDCA as unconstitutional, Solicitor General Florin Hilbay said on Tuesday at the Supreme Court during oral arguments on the EDCA.

Hilbay also said the high court may not force a referral to the Senate without the authority from the President.

Under the EDCA, the US will be allowed to build structures, store and preposition weapons, defense supplies and materiel, station troops, civilian personnel and defense contractors, transit and station vehicles, vessels, and aircraft for a period of 10 years inside "agreed locations."

Hilbay also said sending the agreement to the Senate for concurrence will delay its implementation.

"The Senate cannot be compelled to accept a responsibility it did not seek or does not want to assume," Hilbay said.

He also said the senators' not joining the petitioners may be a sign that they have agreed to the EDCA.

"The Senate's silence is a nuanced affirmation of the powers of the President," Hilbay said.

This is the first time the solicitor general faced the magistrates since his appointment. He was grilled for four hours by Chief Justice Maria Lourdes Sereno and seven associate justices. 

Associate Justice Marvic Leonen cited a speech by Senator Miriam Defensor-Santiago on Monday that questioned the absence of Senate ratification in EDCA. 

Hilbay said that he was not familiar with Santiago's pronouncement, adding that if the Senate or a senator was questioning the agreement, then why are they not petitioners in the case.

"Again, why was the EDCA not submitted to the Senate?" Leonen said.

"Because the President considers it an implementing agreement of the Mutual Defense Treaty and the Visiting Forces Agreement," the solicitor general responded.


DOH breaks Ebola rules

From the Manila Standard Today (Nov 26): DOH breaks Ebola rules

Exempts 4 peace keepers from island quarantine

ONLY days after they were criticized for breaking their own quarantine protocol, the military and the Department of Health were back in the limelight on Tuesday after four just-returned United Nations peacekeepers from Liberia were sent to a hospital that was not designated an Ebola facility.

“The decision to let them undergo the quarantine at the AFP Medical Center is based on the guidance from DOH,” said Armed Forces spokesman Lt. Col. Harold Cabunoc.

Cabunoc explained that the four Filipino soldiers, who were among the country’s 112 UN peacekeepers in Liberia, were cleared after Ebola screening in Monrovia.

When asked whether the screening test was the same one given to people from other countries who later developed Ebola, Cabunoc said “the DOH can discuss further details about their quarantine procedures and duration.”

Col. Roberto Ancan, the commander of the Peacekeeping Operations Center, also declined to comment on why the four peacekeepers were brought to the AFPMC on V. Luma in Quezon City instead of the announced quarantine facility on Caballo Island at the mouth of Manila Bay.

“Let the DOH answer you that question,” Ancan said, adding that the four soldiers were enlisted personnel who stayed behind in Liberia to arrange with the United Nations Disengagement Observer Force for transportation of their military equipment.

The military and the DOH came under fire last week for breaking their own announced quarantine protocol when they visited the peacekeepers isolated at Caballo island.

Armed Forces chief Gen. Gregorio Catapang later belittled the break of quarantine protocol because he was told that Ebola is only contagious when a person is already showing symptoms of the illness that has already killed more than 5,000 people all over the world.

But Dr. Anthony Leachon, president of the Philippine College of Physicians, said the point was that they broke their own quarantine protocol.

“It was a breach of protocol,” Leachon said. “Quarantine is an enforced isolation during the 21-day incubation period.... It might send the wrong signal.”

But DOH spokesperson Dr. Lyndon Lee Suy said there was no need to bring the four soldiers to Caballo Island since “there were only four of them” and their quarantine was already set to end on Dec. 3 so it was decided they could be isolated at the AFPMC.

Suy exploaned that while the AFPMC was not one of the Ebola facilities announced earlier, it also had a quarantine facility.

The DOH spokesman confirmed the four peacekeepers arrived through a commercial flight on last Saturday after they were cleared to travel by United Nations personnel.

Suy said the Filipino peacekeeper who fell ill with malaria two weeks ago is already back in Caballo Island to complete the 21-day quarantine period. “Currently, zero na ang kaniyang parasite level,” Suy told reporters in a media briefing.

Another peacekeeper who developed a sore throat is also well now and was also not brought to the designated Ebola facility, the Research Institute for Tropical Medicine.

But a third peacekeeper from Caballo Island was rushed to the AFPMC Monday night because of chest pains, but officials declined to elaborate for the sake of the soldier’s privacy.

The first batch of the 133 peacekeepers,  composed of 108 from the AFP, 24 from the Philippine National Police and one from the Bureau of Jail Management and Penology, from Liberia arrived on Nov. 12.

Since then, they have been quarantined on Caballo Island. They will stay there until Dec. 3 when they will undergo another routine medical test.

The peacekeepers were earlier tested negative for the virus prior to their departure from Liberia and they were also cleared in a thermal scanning procedure after landing in the Philippines.

Meanwhile, three volunteers from San Lazaro Hospital will join the Rapid Response Team sent by the Philippine government to West Africa to assess the situation of our Overseas Filipino Workers in Ebola-stricken countries, according to Senator Loren Legarda.

Citing information relayed to her by Suy, Legarda said the DOH was informed a month ago about the deployment of a team that will assist in repatriating Filipinos from Ebola-hit countries in Africa should the Philippine government raise the alert there to Level 3.

The Rapid Response Team is comprised of representatives of the Department of Foreign Affairs, Department of Labor and Employment, Philippine National Police and the DOH.

The presence of DOH experts is seen as important in conducing health checks on Filipinos currently in Guinea, Sierra Leone, and Liberia, where Ebola has killed thousands.

“The DOH knows that they are very essential,” Legarda said. “I cannot understand why the DOH is not on top of this.”

Senator Cynthia A. Villar, a known advocate of Filipino migrant workers, earlier quizzed Legarda on the failure of the DOH to send its personnel to West Africa.

“What do you think is the reason why they are not sending any representatives?” asked Villar.

“I wish I could ask Secretary Garin now. They must be in the forefront of this battle? I wish I can answer you [but] I cannot answer for the DOH, ” said Legarda.


Troops pursue rebels after Pantukan clash

From the Sun Star-Davao (Nov 25): Troops pursue rebels after Pantukan clash

THE Army's 10th Infantry Division launched Monday a pursuit operation against suspected members of the New People's Army (NPA) they encountered in the village of Tagugpo in Pantukan, Compostela Valley.

First Lieutenant Alexandre F. Cabales, civil military officer of the Army's 25th Infantry Battalion, said in a phone interview that government troops clashed with two communist rebels around 7:45 a.m. Monday.

Cabales said the firefight lasted for five minutes, adding the rebels failed in their attempt to disrupt the peace and development efforts in the area as the peace and development troops are regularly conducting security patrol there.

Based on reports, the rebels were members of the Pulang Bagani Command 6.

"Hindi normally nag-pupupunta yang mga yan dito. We believe they are heading to another area, at napadaan lang dito. Ganun pa man mali ang pagtangkaan nila ang buhay ng mga tao dito," Cabales said.

"It can be recalled that this was the same barangay where three armed NPA organizers were arrested by the government forces on January 19 this year.

The three attempted to organize the community as their logistical base and make it as a jumping board for extortion activities," he added.

Cabales also said that after the arrest, the army responded with an intensified Peace and Development Outreach Program (PDOP) in partnership with the local government and various stakeholders within the area.

He said the PDOP paved the way for various developmental projects in Barangay Tagugpo.


Field Artillery Battalion deployed to boost offense against Abu Sayyafs

From Ang Malaya (Nov 25): Field Artillery Battalion deployed to boost offense against Abu Sayyafs

Army Artillery Regiment of Philippine Army send-off a support unit to boost offensive efforts against the terror group Abu Sayyaf and other lawless elements in Zamboanga, Basilan, Sulu and Tawi-Tawi.

8th Field Artillery Battalion, a newly formed battalion, will provide support to deployed troops under the command of Lt. Col. Jeffrey Cabansay.

The battalion was transported from Villamor Air Base to Mindanao using C-130 “Hercules” Monday, November 24.

During the send-off ceremony, Army Artillery Regiment commander Brig. Gen. Leandro A. Loyao III said, “as our military leadership puts their trust and confidence to the Army Artillery, I also put my trust on you, Jeff (Lt. Col. Cabansay) and your men, because it takes not only skills but also the experience to help our infantrymen on the ground as they fight in order to secure the civilian communities and eventually win the peace.”

Cabansay previously served as artillery officer leading several artillery fire support missions in Central Mindanao.

“Your mission there is very critical and any miscalculated action is unaccepted,” Brig. Gen. Loyao told Lt. Col. Cabansay.

A field artillery unit is deployed to provide support to troops in the field by conducting ranged engagements using specialized guns and launchers.


Two Vietnamese frigates in PHL, a first of its kind

From Ang Malaya (Nov 25): Two Vietnamese frigates in PHL, a first of its kind

Two warships of Vietnam People’s Navy are in the country for a three-day goodwill visit. Dinh Tien Hoang (HQ-011) and Ly Thai To (HQ-012) arrived Monday, November 24 and will stay in the Philippines until Wednesday, November 26.

These two warships are carrying approximately 200 officers and crews.

Dinh Tien Hoang (HQ-011) and Ly Thai To (HQ-012) are Russian-made frigate designed to perform search and destroy missions.

During the visit two parties will tackle visits and exchanges, personnel education and training exchanges, naval technology exchanges and intelligence exchanges.

The visit is a first of its kind. This kind of activity between two navies is seen as a positive development and a deepening relationship between Philippine and Vietnam military. Reports said that two navies are planning joint patrols and rescue activities, when needed, in South China Sea.

Earlier this month, Philippines and Vietnam governments decided to pave the way for a comprehensive strategic partnership. “I think that it is mostly driven by our close ties with them, and we actually have entered into a strong commitment to be able to bring our relations closer, and the way to do this is through some form of a comprehensive strategic partnership,” Department of Foreign Affairs chief Albert del Rosario said.


Philippines told: Get used to China's island-construction

From the Philippine Star (Nov 25): Philippines told: Get used to China's island-construction

Several photographs issued by the Philippine government showed different stages of reclamation work being done by the Chinese on Mabini (Johnson South) Reef. File

In what could be a hint of more construction activities, a Chinese state-run paper is urging the Philippines to become accustomed to the Asian giant's land reclamation efforts in the disputed South China Sea.

In an editorial published on Monday, the Global Times said China occupies an "advantageous military position" in the contested waters but it will not take the initiative to compete with Vietnam and the Philippines to get maritime features by force.

"Vietnam and the Philippines should get used to China's island-construction in the South China Sea. We hope that the US can also get used to China's more frequent presence in the seas," the paper said.

The article came amid reports that China is turning the Fiery Cross Reef or Yongshu Reef into an artificial island capable of accommodating the country's first military airstrip in the Spratly Islands.

The London-based security group IHS Jane said satellite images taken in August and November showed that Chinese dredgers had created a land mass almost the entire length of the reef, which was previously under water.

IHS Jane said the new island — at least 3,000 meters (9,840 feet) long — is China's largest construction project in the Spratlys and might be aimed at helping Beijing impose its sovereignty claims over neighboring countries that also claim the territory.

"This facility appears purpose-built to coerce other claimants into relinquishing their claims and possessions, or at least provide China with a much stronger negotiating position if talks over the dispute were ever held," the report said.

The Global Times said the Fiery Cross Reef is becoming a big island, which shows China's "prominent construction capabilities."

"More importantly, it is worth noting that China's projects have avoided direct conflicts with Vietnam and the Philippines. It shows that China cherishes peace in the South China Sea," the paper claimed.

It also pointed out that Vietnam and the Philippines have also constructed facilities and allowed people to dwell on contested maritime features.
The paper said the Philippines is expected "to make a mountain out of a molehill" on China's new construction activities.

According to a Philippine News Agency report, Foreign Affairs Secretary Albert del Rosario said they will validate the reported reclamation efforts on Fiery Cross Reef, which is called Kagitingan Reef in Filipino.

He noted that the reef, which is 257 nautical miles off the nearest point in Palawan, is part of the Philippines' Kalayaan Island Group, a cluster of islands, shoals, islets and reefs facing the South China Sea.

The Philippines had protested China's ongoing reclamation activities at the Burgos (Gaven) Reef, Kennan (Chigua) Reef and Calderon (Cuarteron) Reef.

Manila is questioning China's "indisputable" claim to virtually the entire South China Sea before a United Nations tribunal. -with AP


The South China Sea: Navigating the Most Dangerous Place in the World

From War on the Rocks (Nov 25): The South China Sea: Navigating the Most Dangerous Place in the World (by Michael McDevitt)

The South China Sea: Navigating the Most Dangerous Place in the World

When people ponder where the next major conflict might erupt, they often look to the South China Sea – the scene of the potentially most explosive, intractable, overlapping sovereignty claims in the world. What can the United States do to find a peaceful solution to tensions between China, the Philippines and Vietnam, and indirectly between Beijing and Washington?

These problems in the South China Sea are not new; the first U.S. policy statement regarding South China Sea disputes was made in 1995. Today’s policy is virtually identical, i.e., a peaceful, non-coercive diplomatic resolution that preserves regional stability and freedom of navigation in one of the world’s most heavily travelled seaways. What is different is that after almost a decade and a half of relative tranquility, the South China Sea has emerged as a cockpit of contention that raises the potential for conflict and introduces instability in Southeast Asia. The United States could become directly involved because the Philippines, one of the contending claimants to land features in the South China Sea, is a U.S. treaty ally.

In the South China Sea there are approximately 180 features above water at high tide. These rocks, shoals, sandbanks, reefs, and cays, plus unnamed shoals and submerged features are distributed among four geographically different areas of that sea. These features are claimed in whole or in part by China, Taiwan, Vietnam, the Philippines, Malaysia, and Brunei. China and Taiwan (the Republic of China) claim all of the land features in the South China Sea. A bedrock principle of U.S. policy is that Washington takes no position on the legal merits of these respective claims.

Why Should Anyone Care who Owns largely Uninhabitable Islands and Rocks?

A very small number of the land features have strategic value for the claimants because they have, or could have, runways long enough to accommodate tactical jet aircraft and are adjacent to some of the world’s most heavily travelled commercial shipping routes. In short, gaining sovereignty provides a foothold that could enable a country to interfere with trade to or from China and the rest of Northeast Asia. This is highly unlikely, but nonetheless, the strategic location of the South China Sea islands has been on the minds of strategists since the end of the First World War.

Beyond this, sovereignty carries with it certain rights to the resources of the surrounding waters—either 12-mile territorial waters, or, if the feature is deemed an island, a 200-nautical mile Exclusive Economic Zone (EEZ). These maritime entitlements associated with features above-water at high tide offer access to fish, hydrocarbons, and minerals on or beneath the ocean floor. Finally, nationalism is very important (especially in China) because pressure to uphold “our sovereign territory” limits the options of claimants.

China in the South China Sea

China already has control of all the disputed land features in the northern portion of the South China Sea. It has controlled the Paracel Islands since 1974 when it forcibly ejected South Vietnamese forces that occupied about half of the islands, and, despite Vietnam’s continuing sovereignty claims, is unlikely to ever leave. China effectively resolved the dispute with the Philippines over Scarborough Shoal in 2012 when it secured control over the feature Again, despite protests from Manila, China is unlikely to relinquish it. This means that the Spratly Islands are the only remaining disputed South China Sea feature not completely under the physical control of China.

China’s approach in the South China Sea is best described as “peacefully coercive.” It carefully avoids direct involvement of its navy, and instead relies upon its Coast Guard and fishing fleet to pursue what is often characterized as a “salami slice” strategy, in taking small, incremental steps that are not likely to provoke a military response from any of the other claimants, but over time gradually change the status quo regarding disputed claims in its favor.

This knotty sovereignty issue is greatly exacerbated by the “nine-dash line” that appears on all Chinese maps of the South China Sea. It incorporates about 80 percent of the South China Sea and cuts through the EEZ of the other littoral states. Over the past several years Chinese actions strongly suggest the line is much more than a cartographical annotation depicting China’s claims to the land features—it is an attempt to claim China has “historic rights” to a significant portion of the fish and hydrocarbon resources that, under the Law of the Sea Treaty (UNCLOS), legitimately belong to the coastal states. This apparent attempt to rewrite commonly accepted international law to include the concept of “historic rights” has resulted in a number of incidents with its neighbors.

What are U.S. interests the South China Sea?

Starting in summer 2010, the Obama administration clearly signaled that the United States considers establishing rule-based stability in the South China Sea to be an important U.S. national priority. The administration did this through a combination of diplomacy and enhanced military engagement with the South China Sea littoral states of Vietnam, the Philippines, Malaysia, and Indonesia.

The United States also has an abiding interest in “freedom of navigation” in the South China Sea. Washington believes that UNCLOS permits any nation to exercise “high seas freedoms” in the EEZ of any coastal state. These freedoms include, inter alia, peaceful military activities including surveillance. China disagrees. It claims that these are not “peaceful” activities. This disagreement has resulted in two serious incidents: the 2001 mid-air collision between a U.S. Navy surveillance aircraft (EP-3) and an intercepting Chinese navy fighter, and the 2009 episode in which Chinese fishermen and paramilitary ships harassed USNS Impeccable. More recently, a dangerously close intercept of a U.S. Navy P-8 maritime patrol aircraft created another diplomatic dustup.

The U.S. defense treaty with the Philippines is an important obligation. If China were to attack a Philippine naval or coast guard vessel, shoot down a Philippine military aircraft, or kill or wound members of the Philippine armed forces, treaty language related to attacks on “its [the Philippines’] armed forces, public vessels or aircraft in the Pacific” suggests that the treaty would apply.

Finally, China is very important to the resolution of other critical issues that matter to Washington, such as ending the Iranian and North Korean nuclear programs; addressing climate change; maintaining peace in the Taiwan Strait and East China Sea; and promoting trade, investment, and economic growth. This mix of significant interests forms the broader context for U.S.-China relations, and makes it clear that the South China Sea should not become the central element in the overall U.S.-China relationship.

Existing U.S. policy toward the South China Sea

Based on public statements and Congressional testimony from serving U.S. officials, U.S. policy consists of the following key elements:
  • No use of force or coercion by any of the claimants to resolve sovereignty disputes or change the status quo of disputed South China Sea features.
  • Freedom of navigation, which includes unimpeded lawful navigation for commercial, private, and military vessels and aircraft. Coastal states must respect the UNCLOS language that all “high seas freedoms,” which include peaceful military operations, are permissible within coastal states’ EEZs.
  • All maritime entitlements to any of the waters of the South China Sea must be based on international law and must be derived from land features in the South China Sea. China’s nine-dash line does not meet these criteria.
  • The United States takes no position on the relative merits of competing sovereignty claims. It does not favor one country’s claim over another’s.
  • An effective Code of Conduct that would promote a rules-based framework for managing and regulating the behavior of relevant countries in the South China Sea is essential.
This policy is sensible, relatively comprehensive, and proportionate to the U.S. interests involved. The administration’s public rhetoric has, over time, become far more specific and less “diplomatic”; it now specifically calls China’s actions destabilizing and bullying. Policy has also become more specific in its commentary regarding the “rules.” It has addressed the most destabilizing aspect of the South China Sea disputes: the nine-dash line. But despite being judged sensible and proportionate, the Obama administration’s policy has been criticized from both the right and the left for not being “tough” enough with China.

The simple reason for the criticism is that China has essentially ignored U.S. exhortations to follow the rules, to stop pushing other claimants around, and to seek third-party arbitration to resolve claims. Beijing apparently believes that national interest trumps adherence to international law.

That said how should U.S. policy proceed?

To supplement extant policy, overarching policy guidelines should include the following principles:
  • The South China Sea is not the central strategic element in the overall U.S.-China relationship.
  • The South China Sea is an issue to be managed; a permanent solution is not likely in the near term.
  • There is no one preferred format for negotiated outcomes. Bilateral negotiations should not be dismissed or portrayed as less desirable. The reality is that because of overlapping claims, solutions that are negotiated directly by the claimants are inevitable.
  • Policy should not be overwhelmingly anti-Chinese. The United States should criticize Chinese behavior along with the behavior of American friends and allies when warranted, but be mindful that China may have the best legal claim to all the land features.
  • The U.S. government should remain sensitive to the efforts of littoral states to involve the United States more deeply in supporting their claims in order to balance against China.
  • Washington should not announce policies that engage credibility in a way it is not prepared to back up. In short, don’t bluff.
The United States should issue a comprehensive white paper, or a series of white papers, on the various aspects of international law that pertain to the South China Sea in order to reinforce the existing U.S. policy emphasis on international law as the basis for rules-based stability. Because the focus on international law has been such a centerpiece of U.S. policy, these authoritative documents should be signed by the secretary of state and given appropriate publicity.

In January 2013, the Philippine government effectively took China to court by requesting an arbitral panel determine if the Chinese nine-dash line and claims to submerged features on the Philippine continental shelf were permitted by UNCLOS. The arbitral panel has to decide whether it itself has jurisdiction or not. The State Department should consider issuing a statement in strong support of a favorable ruling on jurisdiction so the Philippines can have “its day in court”.

U.S. policymakers should explore with ASEAN and China the possibility of establishing a Joint Development Area (JDA) in the Spratlys aimed at the exploitation of hydrocarbons. The goal would be to find a way to allow states to share these resources without prejudicing their position on final maritime boundaries. ASEAN normally does not welcome outside interference in what it judges are ASEAN diplomatic equities, but since the Code of Conduct process is stalled by Chinese foot-dragging, U.S. policymakers should explore whether ASEAN would welcome any American involvement aimed at moving the Code of Conduct process to conclusion.

To help these littoral states help themselves, Washington should be responsive to requests from small littoral states in the region that want assistance in improving their maritime policing and security capabilities. This would also include a commitment to a long-term, dedicated effort to improve the maritime capabilities of the Armed Forces of the Philippine’s. A mutually agreed upon AFP “minimum credible deterrent” plan deserves strong U.S. support. Washington should not, however, expand the scope of the Mutual Defense Treaty to cover the contested Philippine claims in the Spratlys.

In terms of planned U.S. military posture improvements associated with the rebalance, Washington should ensure they are portrayed as symbols of reassurance and a stability-inducing presence rather than attempts to directly confront China. The emphasis should be that the objective military aspect of the rebalance is to ensure that the United States can fulfill its security responsibilities to U.S. allies by having assured access to East Asia whenever required.

More directly, in the South China Sea, U.S. naval and air presence should continue to be a visible daily occurrence. The United States Navy should also increase the duration of its exercises with the littoral states, and expand participation in these exercises to other Asian maritime states that have a stake in stability in the region, such as Japan, Australia, South Korea, and possibly India.

Concluding Thoughts

China’s policies give the impression of not appreciating that being tough with its neighbors simply incentivizes them to seek assistance in bolstering their security. . In short, this lack of self-awareness by Chinese interlocutors leaves some U.S. officials wondering if China knows what is good for it—China is not acting in its own best interests.

Arguably, China knows exactly what it is doing. Its leaders can read a map. The realities of geography are that other claimants to South China Sea features and resources are always going to live in the shadow of China. China is already the largest trading partner with all of its Southeast Asian neighbors, and their economies are increasingly interlinked. An ASEAN consensus seems to be, “We are all afraid of China, but we are also afraid of what China might do to our economy if we cross them.”

Finally, it is important to recognize the importance that China’s domestic issues have in President Xi Jinping’s approach to the South China Sea. In China, domestic politics usually trumps foreign policy concerns. Being tough on China’s sovereignty claims provides important political cover for Xi’s politically difficult attempts to reorient China’s economics, stamp out corruption in the Chinese Communist Party, and curb the power of provincial party secretaries who frequently act as regional despots.

These considerations, plus the fact that China has the largest and most powerful Asian military, shape Beijing’s policy approach to the South China Sea. China’s conventional weapons capability is far superior to that of its neighbors, including India, and most certainly will remain so, at least for the foreseeable future.

So far, China’s actions in the South China Sea have not harmed its economy: its neighbors still line up seeking to improve relations. Beijing understands that its small neighbors do not want to be forced to choose between the United States and China. They all want the best possible relationship with both. Since these small countries will always be China’s neighbors, and they will always need China more than it needs them, China can exercise great latitude in its approach to its neighbors.

These factors are the reason that it is so difficult to get results from existing U.S. policy. Hopefully the blend of diplomatic, legal, capacity building and military presence policy actions suggested above as enhancements to extant approaches, will contribute to causing Beijing to rethink it SCS strategic approach and improve the chances for reduced tension and in the South China Sea. It is possible that the current after-APEC positive atmosphere could mark the beginning of a period of relative tranquillity in the SCS. But this is likely to only be temporary since Beijing believes it has right and history on its side. It really does believe that all the land features and resources belong to China.

[Rear Admiral Michael McDevitt, US Navy (ret) is a Senior Fellow at the CNA Corporation. His most recent research focus has been the maritime security issues along the Indo-Pacific littoral and the maritime dimension of China’s national strategy. During his navy career Rear Admiral McDevitt held four at-sea commands; including an aircraft carrier battle-group. He was the Director of the East Asia Policy office for the Secretary of Defense during the George H.W. Bush Administration. He also served for two years as the Director for Strategy, War Plans and Policy (J-5) for US CINCPAC. Rear Admiral McDevitt concluded his 34 year active duty career as the Commandant of the National War College in Washington, DC.]


Miriam: I'm ready for full-blown EDCA debate in Senate

From Rappler (Nov 24): Miriam: I'm ready for full-blown EDCA debate in Senate

The senator is 'very happy' that some Supreme Court justices hearing oral arguments on the constitutionality of the PH-US military pact have suggested referring it to the Senate

SENATE APPROVAL NECESSARY: Senator Miriam Santiago maintains that EDCA is a treaty that needs Senate ratification. Rappler file photo
SENATE APPROVAL NECESSARY: Senator Miriam Santiago maintains that EDCA is a treaty that needs Senate ratification. Rappler file photo

Senate foreign relations committee chairman Senator Miriam Defensor Santiago welcomed discussions in the Supreme Court on the possibility of transmitting to the Senate the Enhanced Defense Cooperation Agreement (EDCA).

In a press briefing on Monday, November 24, the senator said she is "very happy" that some justices are aware of the constitutional requirement that the deal expanding American military presence in the Philippines should have been ratified by the Senate. (READ: Transmitting PH-US pact to Senate discussed at SC)
"It appears that certain Supreme Court justices expressed questions on why this matter was not first referred to Senate. I'm very happy with the way that events are turning because the Constitution is very clear. Under Article 7, Section 21, no treaty or international agreement shall be valid or effective unless ratified by at least two-thirds of all the members of Senate," Santiago said.
The Supreme Court is set to hear oral arguments on the constitutionality of the EDCA for the last time on Tuesday afternoon, November 25. Justices will hear government lawyers defend EDCA. Last week, it was the complainants' turn to assail EDCA's constitutionality.

Santiago said her committee is ready for a "full blown debate" on the EDCA. She has always maintained that EDCA cannot be valid without Senate ratification – a position that her colleagues in the upper chamber do not necessarily share. (READ: Was the Senate sidelined in the PH-US deal?)

"We, here in the Senate, particulary myself as chairman of the foreign relations committee, stand fully ready. We are ready when they are. When this (EDCA) was still being negotiated and up for signature, in my committe we already drew up a list of resource persons. We expect a full blown debate here," Santiago added.

Power of Malacañang or Senate?

Malacañang maintains that the agreement that allows the United States military to construct facilities and preposition defense assets inside military bases in the Philippines is within the powers of the President to enter.

However, critics of EDCA, the petitioners, argued that it is de facto military basing and thus requires Senate ratification.

"What I think of the Palace suggestion is unprintable. Maliwanag naman eh. Ni-recite ko pa from memory kasi ang ikli-ikli (It is very clear. I even recited it from memory becauset it's very short)," said Santiago.
"No treaty or international agreement – you can call it anyting you want, you can say military base or agreed loations, it's the same thing. The problem is they are playing rhetorical games," Santiago added.

Arguments vs EDCA

Acting Solicitor General Florin Hilbay said they are expected to "explain our position" on Tuesday. "[It] is really quite straightforward. EDCA implements both VFA (Visiting Forces Agreement) and the MDT (Mutual Defense Treaty). It is as simple as that."

During the oral arguments last week, several justices suggested that EDCA may be covering matters of foreign policy and national defense and thus should be left to politicians – Senate or Malacañang.

Some justices discussed transmitting the deal to the Senate, which they said can better discuss the agreement in the context of the current geopolitical realities.

Anti-EDCA counsel Pacifico Agabin, former University of the Philippines law dean, said transmitting the EDCA to the Senate as a matter of process will be a "half-baked" victory for them because they are also questioning substantive provisions in the agreement as unconstitutional.

On the other hand, there are justices who seemed to prefer leaving these matters to the President – a victory for Malacañang, if ever. This appears to be the position of Senator Francis Escudero, based on his interview last week. (READ: Justices to EDCA critics: How to defend West PH Sea?)

"Foreign policy is within the sole domain of the executive, not really of Congress or of the Supreme Court. So they (Malacañang) get to decide alin ba 'yung executive agreement at alin ba 'yung treaty? Alin ba 'yung isa-submit for ratification, alin 'yung hindi?" Escudero said.

[Foreign policy is within the sole domain of the executive, not really of Congress or of the Supreme Court. So they (Malacañang) get to decide which one is an executive agreement and which one is a treaty. Which one will be submitted to the Senate for ratification and which one won't?]
Escudero noted that the Senate previously conducted hearings on EDCA. "Nagkaroon sila ng hearing at briefing about it, if you remember ha, on EDCA. Kasi at that time it was newly signed, wala namang isyu eh," Escudero said in an interview last week. (They had hearings and briefings about EDCA, because at that time, it was newly signed, there were no issues raised against it.)
Senators have individually commented on certain provisions of EDCA but no resolution was filed to get the official position or sentiment of the chamber. (READ: Senators pinpoint 7 flaws in EDCA and 'EDCA allows US military to build anywhere in PH')
Escudero also noted that the Visiting Forces Agreement (VFA), which allowed the return of US troops in the Philippines, is a treaty that was ratified by the Philippine Senate but is only an executive agreement as far as the US government was concerned. "Itong EDCA pinantayan na lang siguro ng gobyerno 'yung Amerika, executive agreement sa kanila, executive agreement din sa atin," Escudero said. (With EDCA, I think our government just followed what the US did – it's an executive agreement in the US, it's an executive agreement on our part as well.)

Senate is proper venue?

Santiago said she interpreted the oral arguments last week as a reminder to the petitioners, the EDCA critics, that "they did not proceed logically" when they went straight to the Supreme Court instead of the Senate.

"I'm very suprised that the petioners did not file a petition with the Senate for the ratification process to have begun. I’ve just been raring to," said Santiago, an expert on international law.

"You have to follow the judicial ladder. In our Constitution, you see that the first step is to go to the Senate and see if that document is going to be alive or dead," said Santiago.

Justice Marvic Leonen asked a similar question during the oral arguments last week. He said it was curious that petitioners did not ask for the mandatory transmittal of EDCA to the Senate. The petitioners said they also want EDCA declared unconstitutional based on substantive grounds because the agreement is supposedly heavily in favor of the US.


PH protests China's reclamation activity on Kagitingan Reef

From Rappler (Nov 25): PH protests China's reclamation activity on Kagitingan Reef

The Philippines has sent a note verbale to China to protest its activity on the disputed reef, says Foreign Affairs Secretary Albert Del Rosario

 TOP DIPLOMAT. File photo of Philippine Secretary Albert del Rosario
TOP DIPLOMAT. File photo of Philippine Secretary Albert del Rosario

The Philippine foreign affairs department has sent a note verbale to China protesting its reclamation activities on Kagitingan Reef (Fiery Cross Reef) in the West Philippine Sea (South China Sea), Foreign Secretary Albert Del Rosario said on Tuesday, November 25.

"We already sent a note verbale on October 10 regarding that. We looked at our records and discovered that a note verbal had already been sent," Del Rosario told reporters on the sidelines of budget hearings in the Senate.
"We were protesting the activity," he added.
A report last week by IHS Jane's Defence revealed new details of a land reclamation project China is undertaking on Fiery Cross Reef, known as Yongshu in Chinese. The US military had urged Beijing to stop the activity but the latter dismissed the comments as "irresponsible." (READ: China blasts 'irresponsible' US comments on island project)

SolGen: EDCA no guarantee US will aid PH in sea dispute

From Rappler (Nov 25): SolGen: EDCA no guarantee US will aid PH in sea dispute

While the focus of the legal battle has been whether EDCA needs Senate ratification, Supreme Court justices have grilled petitioners and Acting Solicitor General Florin Hilbay about the benefits of EDCA

 ORAL ARGUMENTS ON EDCA: Acting Solicitor General Florin Hilbay and Anti-EDCA petitioner former Senator Rene Saguisag. Rappler photo
ORAL ARGUMENTS ON EDCA: Acting Solicitor General Florin Hilbay and Anti-EDCA petitioner former Senator Rene Saguisag. Rappler photo

Under questioning by a Supreme Court justice, the Philippine government's chief counsel conceded on Tuesday, November 25, that the new military agreement between Manila and Washington DC does not guarantee American help should the Philippines' maritime dispute with other countries escalate.

"There is no guarantee, your honor, but this helps. We have to live in a real world. We have limitations," said Acting Solicitor General Florin Hilbay on the 2nd and last day of oral arguments on the Enhanced Defense Cooperation Agreement (EDCA).

Supreme Court Associate Justice Antonio Carpio was testing Hilbay's argument that the EDCA is part of the country's defensive preparation.

"In order to more effectively achieve the objective of this treaty, the parties, separately and jointly, by self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack. The government's comment submitted to Supreme Court claimed that the agreement is needed to defend the West Philippine Sea," Carpio said.

But this is not what happened in 2012, the justice said.

Carpio went back to the 2012 incident in the Scarborough Shoal (Panatag), where the United States did not come to the aid of the Philippines when China took effective control of the shoal off the coast of Zambales province in Luzon.

"China seized through overwhelming armed force Scarborough Shoal. The US said that is not covered by the Mutual Defense Treaty because they will not side [with any country in cases of disputed territory," Carpio said.

He also cited the failure of the US to come to Ukraine's help when Russia-backed insurgents took Crimea.

"There is no guarantee, in other words, that Americans will come to our aid if we invoke the Mutual Defense Treaty," Carpio said. Hilbay conceded.

This is when Carpio asked Hilbay: "What is the value of EDCA if there is no guarantee of assistance?"

Hilbay suggested that US "can change its mind" on assisting the Philippines. He also mentioned that "the goal is to prevent a showdown" between the Philippines and other countries laying claim on the West Philippine Sea (South China Sea).

"There is no guarantee, your honor, but this helps. We have to live in a real world. We have limitations," said Hilbay.

Carpio replied: "We live in a real world. We lost Scarborough Shoal inspite of MDT."

Outside the context of West Philippine Sea, Hilbay enumerated a range of benefits in terms of training, prepositioning of assets, and improvement of military facilities, runways, barracks, and ports.

While the focus of the legal battle has been whether EDCA stands as an executive agreement or it needs Senate ratification, the Supreme Court justices themselves have gone back and forth grilling petitioners and Hilbay about the implemenation of the new military-to-military agreement in relation to the West Philippine Sea.

With the Philippines having one of the weakest militaries in Asia, the Aquino goverment has said that EDCA is necessary to improve the country's "minimum credible defense" in light of aggressiveness in the West Philippine Sea.

The EDCA allows the US military to construct facilities and preposition defense assets inside Philippine military bases.

At one point, Hilbay begged off questions on the benefits of EDCA and sought to redirect questions on its constituationality.

"This might be a whole range of responses that the President as commander in chief wants to use. These are military matters. If there are experts on miltiary matter, that will be the Department of National Defense. If there are experts on diplomacy, that is the Department of Foreign Affairs. My role is to defend the constituationality of the defense agreement," Hilbay said.

Not foreign military bases

The focus of Hilbay's argument was that the constitutional requirement for "treaties and international agreement" to be ratified by the Senate does not apply to EDCA. He said it is a mere implementation of existing treaties already ratified by the Senate – the Mutual Defense Treaty of 1951 and the Visiting Forces Agreement of 1999.

Hilbay also argued that not all international agreements need to be submitted to Senate. It is a "characterization" dependent on the position of the President and the Senate. He noted that no senator filed a petition to question the constitutionality of EDCA before the Supreme Court.

The constitutional requirement also applies only to foreign military bases, which Hilbay said is not the case with the facilities that will be built by the US military under EDCA.

In a power point presentation at the start of Day 2 of oral arguments, Hilbay showed particular provisions to argue that EDCA is a mere implemenation of these treaties.

VFA, Article VIII

Aircraft operated by or for the US armed forces may enter the Philippines upon approval of the Government of the Philippines

Vessels operated by or for the US armed forces may enter the Philippines upon approval of the Government of the Philippines

Hilbay added the EDCA is unlike foreign basing because it is "restrictive" in the sense that the US requires Philippine approval or invitation for each and every activity it plans to undertake. "Just like the VFA, any and all activities under the EDCA can only be 'at the invitation' or upon approval of the Philippine government."


Preparations underway for Bangsamoro transition government

From Rappler (Nov 25): Preparations underway for Bangsamoro transition government

The ceremonial turnover of the first batch of rebel firearms is postponed to 2015

Deliberations on the proposed law creating a new autonomous government in Mindanao are still at committee level in Congress but preparations are underway for the interim government that will take over once the bill is ratified.

Peace panels from the government and the Moro Islamic Liberation Front (MILF), which signed a final peace accord in March, have created a team that will coordinate the transfer of responsibilities from the present Autonomous Region in Muslim Mindanao (ARMM) to the Bangsamoro Transition Authority (BTA).

The Coordination Team for the Transition or CT4T is composed of 5 government representatives from the Office of the Presidential Adviser on the Peace Process and the Autonomous Region in Muslim Mindanao, and 5 MILF representatives.

The BTA will serve as the interim government once the proposed Bangsamoro Basic Law is ratified in Congress and through a plebiscite, and will remain in place until the election of the first set of Bangsamoro officials in 2016.

It will serve as a preview of how the proposed Bangsamoro government will function.

With the MILF leading the BTA, this phase in the Mindanao peace process will also give the former rebel group the chance to show their capacity to govern as they prepare to enter the political arena.

The coordination team is in charge of mapping out a plan on how the transition process will take place. A major concern is what would happen to ARMM's 32,000 employees. (READ: ARMM's curtain call)

The government hopes to ratify the basic law by March 2015 to give the transition authority at least one year to be in power.

"We want the Bangsamoro Transition Authority to be prepared once the law is ratified," said government peace panel chair Miriam Coronel-Ferrer.

"Rest assured, nothing will be too abrupt. Everything will be gradual and phased in the transition process," she added.

The proposed Bangsamoro government is designed to have greater political and fiscal powers than the current ARMM in a bid towards ending 4 decades of armed conflict in Mindanao that has killed over 100,000 people.

Delayed decommissioning

With all these parallel efforts happening simultaneously, Ferrer said the ceremonial turnover of the first batch of rebel firearms, which was supposed to have been scheduled for December, has been moved to 2015.

By the end of the year, MILF combatants were expected to turn over 20 crew-served weapons and 55 high-powered firearms to the independent body tasked to oversee the decommissioning process.

But Ferrer told reporters this would have to be postponed to 2015 due to the lack of time.

Ferrer said the panels have yet to constitute the Independent Decommissioning Body (IDB). Only the 3 foreign experts who will compose the group have been appointed so far. The panels still have to name 4 local experts. (READ: MILF rebels start arms decommissioning process)

Under the peace pact, the MILF will turn over their firearms to a third-party group, not the Philippine army or the government. The IDB is tasked to conduct an inventory of MILF arms and troops, as well as give recommendations on what to do with the decommissioned firearms.

A total of 30% of MILF firearms will be decommissioned once the Bangsamoro Basic Law is ratified, another 35% will be turned over when the Bangsamoro government and its police force have been established, and the final 35% will be decommissioned once the exit agreement signifying that all commitments have been fulfilled is signed.

Both sides have not provided the total number of MILF troops and firearms.

Composition, members

To establish the Bangsamoro Transition Authority, the President will appoint 50 members, who will exercise both legislative and executive powers.

The transition body will have an interim cabinet with 10 offices on governance, social services, development, education, public order and safety, indigenous peoples affairs health, public works, local government and finance.

A total of P1 billion is set to be provided by the central government as initial funding.

While the chief minister of the body will be from the MILF, it will not be exclusive to the group. The proposed law also provides for the appointment of representatives from non-Moro indigenous communities, women, settler communities and other sectors.

Ferrer said there is no fixed number as to how many seats will be allocated for the MILF and various groups.

"We have to be able to give leeway to the President in his power to appoint how many members from various groups," Ferrer said.

It will be an open field and there is nothing stopping current politicians from being appointed, Ferrer said, but the final decision rests on the President.

The option to choose who among their members will become the chief minister will be an "internal process" for the MILF, Ferrer said.

The transition government will be tasked to lay the groundwork for the Bangsamoro parliament. Part of its mandate is to enact priority legislations such as its own administrative code, revenue code and electoral code.

Meanwhile, the Department of Agriculture is set to provide a program to assist farmers in 6 MILF camps in a bid to start their transformation into peaceful communities.

The ad-hoc committee on the Bangsamoro Basic Law in the House of Representatives has conducted at least 10 hearings not just in Congress but also in present ARMM provinces. Hearings outside the proposed Bangsamoro area are being conducted until December.

On Tuesday, November 25, foreign diplomats involved in the Mindanao peace process were invited as guests for the hearing but the session was closed to the public after lawmakers decided to hold an executive session instead.

The committee discussed the international community's role in the peace process, as well as the experiences of countries such as Indonesia and Egypt in similar peace processes.


AGAIN? | AFP, DOH in another apparent breach of Ebola quarantine protocol

From InterAksyon (Nov 25): AGAIN? | AFP, DOH in another apparent breach of Ebola quarantine protocol

The Armed Forces of the Philippines (AFP) and the Department of Health (DOH) are back in the spotlight for apparently having kept mum about the arrival of four remaining peacekeepers from Ebola hotspot Liberia, who were not brought straight to Caballo Island for quarantine but to AFP Medical Center in V. Luna in Quezon City.

About a week before, AFP Chief of Staff General Gregorio Pio Catapang Jr. and DOH Acting Secretary Janette Garin were called out for breaking protocols of the government's Ebola-free program when they visited "elbow-to-elbow" the peacekeepers in Caballo Island.

Both officials just shrugged off the controversy.

This time, according to Col. Roberto Ancan, commander of the Peacekeeping Operations Center (PKOC), the four soldiers arrived via commercial plane at around 11 p.m. on November 22.

Ancan declined to elaborate as to why the peacekeepers were directly brought to the AFPMC instead of Caballo Island, where the first batch of 108 soldiers, 24 police officers and a jail officer are currently being quarantined for 21 days before they could be allowed to go home to rejoin their families.

"Let the DOH answer you on that question," Ancan said, adding that all four soldiers were enlisted personnel who had to stay behind in Liberia as they were tasked to wrap up logistical arrangements with the United Nations Disengagement Observer Force (UNDOF) for transportation of military equipment back home.

In camp Aguinaldo, AFP public affairs chief Lt. Col. Harold Cabunoc indicated that the four soldiers will be quarantined at AFPMC based on DOH guidance.

"They are all confined together in one room. We will let DOH articulate the details of their quarantine situation and the duration," Cabunoc said.

Meanwhile, Cabunoc disclosed that a peacekeeper from Caballo Island was rushed to AFPMC Monday night complaining of chest pains, adding that the Philippine Navy, which is in charge of the Caballo quarantine arrangements, will have the details.