The dispute
between Philippines and China around the Scarborough Shoal/Huangyan Island in
South China Sea has been getting worse for the past several weeks. The conflict
is over at most the few meters of land, mostly under water, that the two states
claim their sovereignty over. Of course the main bargain is going on over the
fishing and mineral resources in the waters surrounding the area that such
sovereignty gives right to exploit. It is worth mentioning that there is no
common understanding on even the nature of the territory. Chinese regard these
lands as island, while Philippines call it a shoal.
Last several
days the heat of the conflict was mostly stirred up by the Chinese part of the
dispute. There were statements on government’s main media outlet CCTV claiming
(“mistakenly”) the “unquestionable sovereignty” of China over Philippines. The
spokesman on CCTV probably meant the area in dispute, however the statement did
it job in raising tensions over whole situation. Chinese Ministry of Foreign
Affairs have also warned Philippines that China is fully prepared to respond to
any escalation in the dispute if its sovereignty is being threatened. It also
seems that the Chinese travel agencies have temporarily stopped providing tours
to Philippines. At the same time Chinese Embassy in Philippines made a warning
statement to Chinese nationals in Philippines calling on them to be cautious
and preferably refrain from going outdoors as the anti-Chinese protests are
expected to occur. Chinese military have also made statements to the media that
warned that attempts to claim the rightful sovereignty of China over Huangyan
Island will be prevented by the armed forces.
This conflict
has a parallel track of “cyber-warfare”. There are reports of mutual
cyber-attacks on both sides. First at the end of April, Chinese hackers have
reportedly attacked the website of the University of Philippines, while
Filipino hackers have retaliated with their own breaches of the Chinese web
resources. The row of mutual attacks has continued since with the recent
“prank” of Chinese hackers to post a flag of China on the Philippines News
Agency. It is worth noting that Philippines have called on both sides to stop
these cyber-war, while Chinese authorities have not come forward with similar
demands.
Overall it seems
that situation is on the track of escalation and raises the fair question on
what will be the U.S. actions if the situation will get much worse and we will
see the political dispute turn to an armed standoff or even hostilities. The
U.S. involvement in the matter will not be dictated by mere geopolitical
presence in the region, but also by U.S. obligations under the international
law.
As it happens a
treaty exists between Philippines and the U.S. called Mutual Defense Treaty.
This treaty was signed in August 30, 1951 and mainly dictates that both nations
would support each other in case they are under attack by the third party. In
its preamble the treaty reinforces the faith in the purposes and principles of
the Charter of the United Nations, expresses desire to strengthen the “fabric
of peace in the Pacific Area”, while attempting to declare the unity and common
determination of U.S. and Philippines to defend themselves from external armed
attack. The most interesting are the articles IV and V of the aforementioned
treaty. Article V of the treaty talks about the definition of such external
armed attack: “…an armed attack on either of the Parties is deemed to include
an armed attack on the metropolitan territory of either of the Parties, or on
the island territories under its jurisdiction in the Pacific or on its armed
forces, public vessels or aircraft in the Pacific”. Taking into account that
South China Sea is considered to be Pacific, it looks like the Filipino vessels
are largely covered by the treaty in the meaning of an armed attack subject.
However, what
are the U.S. committed to should attack on Philippines occur from the third
party? Article IV provides that: “[e]ach Party recognizes that an armed attack
in the Pacific Area on either of the Parties would be dangerous to its own
peace and safety and declares that it would act to meet the common dangers in
accordance with its constitutional processes. Any such armed attack and all
measures taken as a result thereof shall be immediately reported to the
Security Council of the United Nations. Such measures shall be terminated when
the Security Council has taken the measures necessary to restore and maintain
international peace and security.”
The need to involve the UN Security Council is
quite understandable. However, it is worth noting that U.S. is obliged only to
“act to meet the common dangers in accordance with its constitutional processes”
(for example unilateral presidential action). Nonetheless, the overall meaning
of the treaty is quite clear – the attack on either of the parties means the
attack on both parties. And taking into account that U.S. reaffirmed its
commitments under the treaty several times, if the armed conflict between China
and Philippines should erupt there might be full-scale U.S. involvement.
Kamal Makili-Aliyev
Doctor of Laws (LL.D)
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