IWAS privileged to have been sent a copy of the position paper of the International Law and Relations Society of the Philippines through one of its leaders, the erudite former chief justice Reynato Puno. It is a paper that takes up the issue of the involvement of the Armed Forces of the Philippines in the West Philippine Sea as well as related issues, including the involvement of the US Army.

I will take up some of the matters raised in the paper. It strongly endorses adherence to the rule laid down in the “Posse Comitatus Act” that the US Congress passed sometime in the 19th century. Fundamentally, this law forbade the use of the federal armed forces for domestic law-enforcement measures. It follows from the marked federal configuration of the United States that limits the federal government by making it a “government of enumerated powers.” The paper distinguishes between “military force” and “law enforcement measures.”

In truth, we do not have a “posse comitatus” statute in the Philippines, but the authors of the position paper find it enshrined nevertheless in the Constitution insofar as it defines the functions of the armed forces in contrast to the duties of the national police, and considering the paramount principle of civilian supremacy over the military. In fact, in Integrated Bar of the Philippines v. Zamora (2000), the petitioners questioned the constitutionality of then President Joseph Estrada’s order to the Philippine Marines to join the police in patrols within visibility areas. Refusing to accept the postulation that the deployment of the Philippine Marines constituted a transgression of the sacrosanct principle of civilian supremacy, the court seized the occasion to explain that the “posse comitatus” statute in the United States had for its context the longstanding misgiving about using the federal army for domestic law-enforcement measures, coupled with the fact that, unlike the Philippine Constitution, the US president is not textually granted the same “calling out” powers found in ours. The paper suggests that enforcing the rights of the Philippines with respect to the different maritime zones marked out by the Convention of Montego Bay (the UN Convention on the Law of the Sea, or Unclos) — internal waters, the territorial sea, archipelagic waters, the contiguous zone, the exclusive economic zone, the continental shelf, air space — is a law-enforcement issue, and therefore one that does not call for military force. To do so, the paper suggests, only exacerbates matters.

I fully agree with the proposition that the Philippines — whether by statute or executive order — cannot broaden the claims allowed by the UN Convention on the Law of the Sea, the very same warrant of international law that provides legitimacy to our claims in the West Philippine Sea, as enunciated and declared in definitive, juridical form by the arbitral tribunal that resolved the dispute between China and the Philippines.

The baselines of the Philippine Archipelago are defined by Republic Act 9522 — and the general rules found in the UN Convention on the Law of the Sea fully obtain: no archipelagic baselines may extend beyond 100 nautical miles, and none may deviate from the general configuration of the archipelago. This is the reason that the Kalayaan Island Group and Bajo de Masinloc, over which the Philippines claims sovereignty, are not included within the archipelagic baselines but are subject to the “Regime of Islands” provisions of Unclos — which means that each island has its own territorial sea and other zones to which islands are entitled.

The position is wary of the involvement of the US Navy. With good reason does the paper ask for the source of authority to allow the US Navy’s involvement or presence in the disputed area. That, however, looks at the matter from the Philippine perspective. An equally important question is the legal warrant for the presence of US Navy vessels in the area, especially during periods of stand-offs and confrontations. The paper concedes that even in disputed waters, the right of innocent passage and free navigation are not interdicted. So, it should also be asked: Is there any legal warrant on the part of the US for the presence of its navy vessels in the disputed area?

Significantly, “maritime security” is one of the goals of the Enhanced Defense Cooperation Agreement (EDCA). Article I, 1 of EDCA situates this within the purpose of maintaining individual and collective capacity “to resist an armed attack.” This is the reason that the well-reasoned paper goes into an examination of whether the use of water canons by the Chinese and laser beams constitute an “armed attack” — and it arrives at a negative conclusion. The paper apparently maintains the proposition that for an armed attack to exist, there must be a territorial target. But when Chinese vessels ensconce themselves within the Philippines’ exclusive economic zone and ram Philippine vessels that enter the zone, would this not be an armed attack? To maintain a stringent threshold of “armed attack” would be to encourage devious ways of gravely harming the interests of the Republic without outrightly targeting by armed weaponry any part of Philippine territory. It should not be forgotten that “the use or the threat of the use of force” constitutes a fundamental violation of international law, one that may even be considered jus cogens.

We are indeed treading a fine line here — and nothing better illustrates the contrast between the clear categories of law and the blurred lines and gray areas on the ground! Exactly when do acts of provocation — blocking supply vessels, bombarding vessels with water canons, or training laser beams on them — become “armed attack”? And once more, I must raise the issue that the US perspective has to be considered: Is there legal warrant for the presence of US Navy vessels in the disputed area? The world was informed that when hostile missile launches from Hezbollah in Lebanon and from Syria — labeled to be proxies of Iran — fell on Israel, the US deployed a US Navy aircraft carrier — with its coterie of escort vessels — to the Eastern Mediterranean. Obviously, the US president could not have done this on a whim. He had to have some legal basis for this deployment. The same question must be raised in regard to the presence of US Navy vessels in the West Philippine Sea and the waters proximate to it.

The brilliantly written paper ends with scenarios but concludes with the realistic acceptance that there is no effective institutional enforcement mechanism for such a conflict — drawing lessons from the Israel-Hamas conflict and the Chagos Archipelago issue. I do not believe, however, that the Philippines should resign itself to the incursions of a bully — because that is what China actually is. Its claims have been belied by the arbitral tribunal that passed upon its averments on the basis of current international law. First, there is the matter of raising our claims to the disputed islands before the International Court of Justice. We can predict that China will once more refuse to participate in the proceedings. All the same, a judicial pronouncement as to our claims and our rights can only be helpful to us. Then, there is the possibility of recourse to Resolution 377 of the General Assembly, which offers a different route than that of the Security Council, which is hamstrung by the veto power that China wields.

The Constitution directs the State to protect the resources of the maritime zones of the Philippines so that they may be used exclusively for Filipinos. Article XII, Section 2 is clear:

“The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.”

The State cannot, even in the name of aspiring for regional peace and goodwill, surrender the maritime zones and their resources to some other power without violating the clear mandate of the Constitution.