Big holes in the Philippines-US defense treaty

Quick: Under the Mutual Defense Treaty, what would the United States do if China surrounds and threatens Philippine marines in Ayungin shoal? Will America . . .

a) Confront Chinese vessels encircling marines holed up in the grounded shipwreck?
b) Escort Philippine Navy ships through the blockade?

c) Denounce Chinese aggression and promise more aid to the Philippines?
Answer: Ask the lawyers.

The fact is, even if China attacks Recto Avenue along with Recto Bank, as President Benigno Aquino 3rd once said, the Mutual Defense Treaty (MDT) between the Philippines and the United States merely stipulates that the US “would act to meet the common dangers in accordance with its constitutional processes.”

That includes getting Congress’ nod for military action. Under the US Constitution and the War Powers Resolution of 1973, without congressional approval, the Commander-in-Chief may order military action only in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

None of the disputed islets, shoals and waters in the South China Sea are American territories or possessions covered by the above exception. So even if China takes over Ayungin, Panatag, or Pag-asa Island, President Barack Obama would need the okay of his Congress to commit forces in defense of Philippine territorial claims.

Are the Spratlys in the Pacific?
There’s more. The treaty spells out the areas of conflict covered by the MDT: “… 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 Ocean, its armed forces, public vessels or aircraft in the Pacific.”

Big question: If the island attack is not in the Pacific, is Uncle Sam obliged to fight?

Unless maps are mistaken, Philippine-claimed islands, shoals and waters, including Pag-asa, are in the South China Sea, not the Pacific Ocean. Perhaps that explains why the US has done nothing but talk when China took over Recto Bank and Panatag Shoal, and now threatens Ayungin.
So unless the South China Sea is considered by the MDT as the westernmost extension of the Pacific, if the PLA targets Philippine troops and vessels in the Spratlys, the treaty won’t apply. We’re on our own.

Besides constitutional processes, the pact provides another action in case of hostilities:
“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.”
Since China, like America, is a veto-wielding Permanent Member of the UN Security Council, don’t expect any help from the United Nations in a war with the Chinese.

A better deal for Japan
Japan’s Treaty of Mutual Cooperation and Security with the US has the same blather about constitutional processes and referral to the Security Council. With one big difference: a separate treaty provides that security arrangements between the countries shall be governed by “administrative agreement.”

Therefore, if the Japanese Prime Minister and the American President agree to immediately deploy forces in the event of attack, that becomes part of the legally binding commitments under the pact. And having been ratified by the US Senate, the treaty has the force of law and constitutes “statutory authorization” allowing military action not requiring explicit congressional approval under the War Powers Resolution.

Just in case this fine print isn’t clear, the US Senate approved in November 2012 the Webb Amendment to the National Defense Authorization Act for Fiscal Year 2013. It reaffirmed America’s security commitment to Japan, and specifically “acknowledges the administration of Japan over the Senkaku Islands.”

That brings the disputed territory explicitly under the Japan-US defense pact. And that’s why American B-52 bombers challenged China’s air defense identification zone over the Senkakus last November.
One more thing: The treaty covers only areas administered by Japan, so if the US gets involved in hostilities outside Tokyo-administered territory, such as a Taiwan conflict, the Japanese Self-Defense Forices are not obliged to respond. Reason: Japan’s pacifist charter written by the Allied occupation regime under General Douglas MacArthur bars military action overseas.

By comparison, if there is a US conflict anywhere in the vast Pacific, the MDT may oblige Filipinos to fight. On the other hand, we don’t have a statute like the Webb Amendment specifically including Philippines-administered territories like Pag-asa under the treaty, and stating that hostilities in the South China Sea are covered by it.

The real deal for Europe
Even better than the defense pact with Tokyo, however, is that of the North Atlantic Treaty Organization safeguarding Europe. It has no fuzzy language about “constitutional processes” or “administrative agreement.” Instead, the NATO commitment is clear and simple. If any member is attacked, the rest will respond:

“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.”
Before we sign and ratify anything about increasing rotations of US forces or providing access to Philippine military bases, Palace and Senate must ensure that the agreement has explicit and unequivocal language committing America to respond if Philippine security, sovereignty or territory is threatened. No ifs, buts, and maybes.

The new pact will provoke even more hostility from China by escalating the presence of US forces capable of nuking its cities and sinking its shipping from within our territory.

Since they are stirring Beijing’s ire against us, let’s make sure nuclear-armed American ships, subs, and planes rotating in the country are legally bound to immediately come to our aid when we face threats — as we have in Recto Bank, Panatag, and now Ayungin.

The United States provides that ironclad commitment to former adversaries Japan and Germany, and most of Europe. It must do the same for its longtime ally the Philippines.

source:  Manila Times by RICARDO SALUDO