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A sustainable, whole-nation, “Kobayashi Maru” solution to China’s aggression

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adroth:
ASEAN



ASEAN was not designed effectively engage China in a territorial dispute. First of all, it is not actually a military alliance the way NATO, or even the South East Asian Treaty Organization (SEATO), was. By definition, it is an economic and socio-economic alliance.


--- Quote from: adroth on June 12, 2018, 06:51:50 AM ---From: http://asean.org/asean/about-asean/overview/

< Edited >

AIMS AND PURPOSES

As set out in the ASEAN Declaration, the aims and purposes of ASEAN are:

To accelerate the economic growth, social progress and cultural development in the region through joint endeavours in the spirit of equality and partnership in order to strengthen the foundation for a prosperous and peaceful community of Southeast Asian Nations;

To promote regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries of the region and adherence to the principles of the United Nations Charter;

To promote active collaboration and mutual assistance on matters of common interest in the economic, social, cultural, technical, scientific and administrative fields;

< Edited >


--- End quote ---

It actually lacks any explicit obligation to defend associate member states. If anything, it emphasizes non-interference in each other’s affairs.

Furthermore, it is an association that relies on consensus to accomplish anything.


--- Quote from: adroth on June 12, 2018, 08:05:56 AM ---From: http://asean.org/storage/2012/05/The-ASEAN-Charter-21-th-Reprint-Amended-17-05-2017-1.pdf

CHAPTER VII
DECISION-MAKING

ARTICLE 20
CONSULTATION AND CONSENSUS

1. As a basic principle, decision-making in ASEAN shall be based on consultation and consensus.

2. Where consensus cannot be achieved, the ASEAN Summit may decide how a specific decision can be made.

3. Nothing in paragraphs 1 and 2 of this Article shall affect the mode of decision-making as contained in the relevant ASEAN legal instruments.

4. In the case of a serious breach of the Charter or non-compliance, the matter shall be referred to the ASEAN Summit for decision.

--- End quote ---


This makes ASEAN relatively easy for China to neutralize and assure that it does not become a venue for diplomatic opposition to its ambitions. While much has been said about Duterte’s refusal to use ASEAN as a venue for protesting Chinese actions in the West Philippine Sea, ASEAN had already been defanged years earlier when Cambodia actively blocked any attempt association statements that would be unfavorable to China. First in 2012, then again in 2016. Adding further insult to injury, China openly thanked Cambodia for taking its side at ASEAN.

adroth:
The scramble for a PH response

As with many democracies, the Philippines is rarely of one-mind on anything. It is, therefore, no surprise that the country is unable to achieve consensus on a solution to the China threat. Debate about how to respond to Chinese aggression has stirred up polarized social discourse rooted in political one upmanship compounded by racial and regional bias.

These us-versus-them discussions are often characterized by “reductio ad absurdum”. Both President Duterte and his opponents are both guilty of this. Oversimplifying the opposing side’s objections to their respective positions.

Duterte, for example, stated in his public pronouncements that his approach is an alternative to open war with China. The vocal opposition, in turn, accused the administration of treason for refusing to vilify China for its territorial encroachment at every opportunity. Both assertions are ultimately fallacious statements meant to compress geopolitical concepts into formats that fit within soundbytes, tweets, and memes. All at the expense of a more comprehensive fact-based understanding of the underlying strategies at play.

The relative weakness of the Armed Forces of the Philippines in a conventional conflict is no secret and is a broadly accepted fact. No multi-role fighters. A navy largely composed of WW-II vessels, none if which were armed with missiles. The list of force deficiencies go on. Challenging a regional power, militarily, would be national suicide.

On the other hand, giving up territory to China -- a charge often leveled against the administration by its detractors -- would actually be a crime. When questioned on this matter by  Al Jazeera, Duterte said that any move to surrender territory to China would be an impeachable offense. The President, who is actually a jurist by education, knows this limitation to his power all too well and is arguably not inclined to give his opponents the legal basis to undermine his policies in other spheres of concern.

Neither war nor surrender of territory, therefore, are actually valid options. Alternative options were necessary.

This admission of martial weakness is, arguably, the only point where the President and his critics agree. For everything else, especially the role that the international community -- particularly the Philippines’ traditional allies -- played in Philippine efforts to reclaim lost ground in the WPS, they were in fierce opposition.

The administration’s opponents -- championed by a loose collection of cause-oriented and political groups that included the likes of Justice Antonio Carpio -- prefer a “third option”. One that is merely a continuation of the foreign policies of the Aquino administration.

Aquino adopted a public hardline against China. A stance that saw Aquino likening China’s South China Sea policies with the expansionist policies of Nazi Germany in the 1940s at a public forum in Tokyo. This policy also saw the Philippines filing an arbitration case with UNCLOS to nullify China's nebulous 9-dashed line which forms official narrative for the basis of its claims to the South China Sea.

Although the Philippines brought nothing to the table militarily, they contend that the United States, and traditional partners, could actually fight China on the Philippines’ behalf if asked, or -- at the very least -- bluff China into capitulation with the mere threat of allied force. They often point to the Mutual Defense Treaty with the United States as a shield behind which the Philippines could hide should the Chinese respond in force. Other, more optimistic voices, contend that the MDT actually gives the Philippines license to do whatever it saw fit to do within its territory and in contested waters.

MDT advocates also point to the fact that UNCLOS arbitration ruling, which declared that China’s claim to the South China Sea had no basis in fact, as yet another trump card that could be employed against China. They argue for its use as a legal instrument for forcing China to halt its territorial ambitions, and as a means to galvanize a coalition of nations that would that defend the region from the kelptomaniac dragon.

Proponents of the 3rd option find validation in the actions of both Indonesia and Vietnam who both maintain the same position as the Philippines did during the Aquino administration. They point to these two neighbors as having a found a middle-ground between open hostility and submission. The President’s critics question why the Philippine cannot follow suit.

It is, however, important to flesh out the specifics of this 3rd option.

Evaluating the 3rd option: UNCLOS
Evaluating the 3rd option: MDT

A variation of the “third option” would have the Philippines avoid war, but adopt a public anti-China position that emulates of the vocal Vietnamese and Indonesian stances towards China. Like the Aquino administration that used any bully pulpit available to call out China’s aggression, this variation of the same theme would attempt to build upon the reported momentum that had been built up by the UNCLOS arbitration results that ruled against the validity of China’s 9-dashed line claim.

When considering this alternative, it is important to take stock of how effective this approach actually has been over the past decade. As gratifying as the sight of Vietnamese coast guard vessels ramming Chinese vessels, or Indonesian vessels conducting Freedom of Navigation Operations in the South China Sea are to Philippine nationalists, their geopolitical effect -- in the face of Chinese obstinacy -- is actually minimal at best.

Vietnam's losses
Indonesian calculations

adroth:
Evaluating the "3rd option": UNCLOS

The cold hard fact about the UNCLOS ruling is that it did not actually grant the Philippines anything. All it did was nullify the 9-dashed line for the benefit of the world at large.


--- Quote from: dr demented on September 25, 2016, 02:21:24 PM ---PCA Case No. 2013-19

In the Matter of the South China Sea Arbitration before the Aribitral Tribunal Constituted Under Annex VII to the 1982 United Nations Convention of the Law of the Sea
Between the Republic of the Philippines and the People's Republic of China

https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf

--- End quote ---

From page 84 of the document


--- Quote ---5. Exceptions and Limitations to Jurisdiction

161. Finally, the Tribunal examined the subject matter limitations to its jurisdiction set out in Articles 297 and 298 of the Convention. Article 297 automatically limits the jurisdiction a tribunal may exercise over disputes concerning marine scientific research or the living resources of the exclusive economic zone. Article 298 provides for further exceptions from compulsory settlement that a State may activate by declaration for disputes concerning (a) sea boundary delimitations, (b) historic bays and titles, (c) law enforcement activities, and (d) military activities. By declaration on 25 August 2006, China activated all of these exceptions.
--- End quote ---

The key bit to understand the text above is Article 298, which states

http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf


--- Quote ---Article 298

Optional exceptions to applicability of section 2

1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes:

(a) (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles,
provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement
within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission;

(ii) after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report; if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in section 2, unless the parties otherwise agree;

(iii) this subparagraph does not apply to any sea boundary dispute finally settled by an arrangement between the parties, or to any such dispute which is to be settled in accordance with a bilateral or multilateral agreement binding upon those parties;

(b) disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law
enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3;

(c) disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in this Convention.

2. A State Party which has made a declaration under paragraph 1 may at any time withdraw it, or agree to submit a dispute excluded by such declaration to any procedure specified in this Convention.

3. A State Party which has made a declaration under paragraph 1 shall not be entitled to submit any dispute falling within the excepted category of disputes to any procedure in this Convention as against another State Party, without the consent of that party.

4. If one of the States Parties has made a declaration under paragraph 1(a), any other State Party may submit any dispute falling within an excepted category against the declarant party to the procedure specified in such declaration.

5. A new declaration, or the withdrawal of a declaration, does not in any way affect proceedings pending before a court or tribunal in accordance with this article, unless the parties otherwise agree.

6. Declarations and notices of withdrawal of declarations under this article shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the States Parties.
--- End quote ---

adroth:
Evaluating the "3rd option": MDT



A strategy that relies on the MDT is a line of thinking with direct lineage to the ill-fated pre-World War II “War Plan Orange” that was supposed to have sent the US Pacific fleet across the Pacific to repulse an Imperial Japanese attack. As USAFEE forces retreated to Bataan as part of the plan discovered -- the hard way in April 9, 1942 -- the mere threat of retaliation did not prevent invasion, and the promise of reinforcement could be hampered by other more-pressing concerns. Unfortunately for the defenders of Bataan, the attack on Pearl Harbor had put the United States on the defensive and the security of the continental US had become paramount. They had become expendable.

In addition to keeping the Bataan experience in mind, when weighing the value of the MDT as shield, one must also be mindful of the wording of the treaty and the mechanics for enforcement.

Article 4 and 5 of the US-PH treaty states


--- Quote from: adroth on September 27, 2016, 08:14:49 AM ---ARTICLE IV

Each 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.

ARTICLE V

For the purpose of Article IV, 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.
--- End quote ---

Arguably, faith in the MDT’s use as a shield against China emanates from these two provisions in the treaty. Particularly in the segments that indicate that an attack on the “armed forces, vessels or aircraft” of either party will trigger the MDT.

But how does this treaty ACTUALLY compare with other mutual defense agreements that the US has with its other allies and how is it enforced?

Treaty that created NATO
Treaty between US and Japan

While the JP-US and PH-US mutual defense treaties both lack the automated response provision of the NATO treaty, the US has categorically declared that they recognize Japan’s claims to the Senkakus. The same cannot be said for the KIG.

The discretionary nature of MDT activation, and the lack of overt commitment to defense of the KIG -- both of which represented the status quo long before the current administration came to office -- should give anyone pause when opting to rely on the MDT as a shield against Chinese aggression.

adroth:
Treaty that created NATO



In the wake of 9-11 attack in New York City, the United States invoked Article 5 of the North Atlantic Treaty, thus paving the way for NATO involvement in Afghanistan. It was the first ever actual use of the treaty and demonstrated its mechanics. This how the NATO treaty laid out its obligation.


--- Quote from: adroth on June 03, 2018, 04:47:45 PM ---Article 5
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.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

--- End quote ---

As shown above, Article 5 of the NATO treaty has noteworthy differences with Article V of the US-PH MDT -- notably the use of the term “forthwith” in the stipulation for response to an attack. Unlike the treat with NATO, the MDT with the Philippines, instead, simply described the prescribed response as:

“declares that it would act to meet the common dangers in accordance with its constitutional processes”.

This difference in wording is arguably the result of the nature of the Soviet threat when the NATO treaty was drafted. Nevertheless, it means that as things stand, the US-PH MDT does not result in an automatic US response to a Chinese attack, as it requires observance of “constitutional processes”

In United States jurisprudence, this would require a declaration of war. An inherently lengthy process that can be expedited depending on the perceived importance of the declaration.

There is, however, an avenue for immediate military action in support of the MDT -- short of a declaration of war -- via executive action as permitted by the US War Powers Resolution of 1973. Under this act, The President of the United States (POTUS) can authorize the use of military forces for a duration of 60 days, with an option to extend by another 30 days, after which congressional authorization would be required for continued operation.

The MDT was written in 1951, at the height of the Cold War and when the Philippines was still host to numerous US military bases. The US needed unfettered access to these facilities, especially in the event of hostilities with the Soviet Union, so a treaty that tied the Philippines and the US to hip was a functional necessity. While post-bases relations with the US has improved in the wake of the 9-11 attacks, culminating in the drafting of the Enhanced Defense Cooperation Agreement (EDCA) which pseudo-institutionalized US presence in the Philippines as part of the Global War on Terror, the resources the US appears willing to commit to the Philippines is defined by the confines of counter-terrorism needs. For matters outside this scope the US remains unclear.

In summary, triggering of the MDT is not automatic, and requires a political climate in Washington that is receptive to our point of view. This begs the question:

Would the US be willing to go to war over territory that it doesn’t officially consider to be ours?

Would any attempt, on our part, to enforce our claims that then results in China using deadly force on our forces constitute an act of defense . . . or could it be labelled as an offensive action and therefore declared as being out-of-scope for a “defense treaty”?

These are CRITICAL questions to ask because contrary to common perception, not all defense relationships are created equal.

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