In the Inquirer of April 30, 2017 the column of Solita Monsod is entitled “Lawfare is not Warfare”, attempting to justify the continuation of the campaign to press the decision of the Permanent Court of Arbitration (PCA).
The Monsod piece was also a dig at President Duterte’s frequent retort to those pressing for aborting the dialogue and cooperative mode he has begun with China, arguing in many of his statements that “war is no alternative” when it comes to relations with China and resolving the issues that stem from conflicting claims over South China Sea islands.
Turning to more learned sources, let me refer to the Boston College International and Comparative Law Review and the abstract of a paper by Joel P. Tractman, Tufts University, on “Integrating Lawfare and Warfare”:
Current military campaigns are not waged solely on the physical battlefield, but in multiple other arenas. One such arena is lawfare: legal activity that supports, undermines, or substitutes for other types of warfare. In today’s law-rich environment, with an abundance of legal rules and legal fora, strategists must evaluate the full scope of possible legal argumentation. Lawfare can substitute for warfare where it provides a means to compel specified behavior with fewer costs than kinetic warfare, or even in cases where kinetic warfare would be ineffective. As a result, lawfare can be strategically integrated into military command structures to bring about desired outcomes.
The ”Asia Pivot” and “Lawfare”
In October 2016, the month President Duterte was to visit China, this article from Bloomberg appeared, “The Philippines just blew up Obama’s Asia Pivot” by Eli Lake which we quote:
Does anyone remember President Barack Obama’s pivot to Asia? The plan was to focus diplomatic and military assets in East Asia to contain a rising China. It was one of the reasons Obama said he was shrinking the American footprint in the Middle East. Well, the pivot is failing. On Thursday, the president of the Philippines, Rodrigo Duterte, announced to an audience at the Great Hall of the People in Beijing a “separation” with the U.S. “America has lost now,” he said. “And maybe I will also go to Russia to talk to Putin and tell him that there are three of us against the world: China, Philippines and Russia. It’s the only way.”
The key phrase of Eli Lake is “… to contain a rising China”, an aim that Obama announced in the last quarter of 2011. Events leading to the deterioration of relations between the Philippines and China followed, from the Scarborough stand-off when President Aquino sent a gray ship to arrest Chinese fishermen down to the filing of the arbitration case and the so-called “win” at the Permanent Court of Arbitration (PCA).
The issue of the Philippines’ dispute with China over South China Sea islands became “Lawfare” on January 22, 2013 after a case was filed with the PCA (which is not a UN body and never was permanent nor a court, and did not do any arbitration as its process was entirely unilateral).
Before Obama’s Asia Pivot and the filing of the case at the PCA the issues between China and the Philippines were handled for four decades through diplomacy which had been achieving success leading to the Joint Marine Seismic Undertaking amongst China, Vietnam and the Philippines (JMSU) up until the Aquino administration.
Lawfare , false history, false promises.
The “lawfare” proponents whipped up patriotic and nationalist sentiments easily given the traditional pro-American colonial mentality of the population, the power of oligarchy controlled media backed by the Aquino government and its American foreign secretary of the Philippine Department of Foreign Affairs (DFA) Albert Del Rosario.
The threat of the U.S. Asia Pivot which aimed to move 60% of its military forces to Asia was never comprehensively reported and explained to the public thoroughly. The Scarborough stand-off was blamed on Chinese “aggression” leaving out Aquino’s use of a “warship” BRP Del Pilar to arrest Chinese fishermen (in traditional fishing grounds open to all) who were made to sit bare-back under the blazing sun.
Carpio – lawfare poster boy.
Reportage in local and Western media of the UNCLOS provisions practically effaced Art. 298 on the option against compulsory arbitration China invoked. One of the most blatant lie told to entice Filipinos to swallow the “lawfare” strategy is by Supreme Court associate justice Antonio Carpio. On Nov. 5, 2015 in a media forum that he had repeated through the years, that China will comply, “I think in the end, China will comply because it is to its advantage to comply” he said.
Justice Carpio blatantly lied again when he cited the case of Nicaragua vs. the U.S. where he claimed that the superpower U.S. had complied with an ICJ decision to pay Nicaragua over violations of its sovereignty. The U.S. never complied nor ever paid, but Carpio cited a totally different aid the U.S. provided its political ally Chamorro as evidence that the U.S. complied.
In a 2015 State of the Nation with Jessica Soho interview with Carpio the associate justice said, “… the ITLOS will ‘…take time…even an inter-generational struggle…(where even) if we will win … this generation will get the ruling… the next will convince the world… and maybe the next …” Three generations or 75 years before any potential benefits. Soho reacted with plain common sense: “Will there be anything left in the SCS/WPS after that time?”
Soho asked Carpio why the Philippines should not engage China in dialog at the same time, Ambassador Zhao Jianhua in June 12, 2015 had already announced openness to “without any precondition”. Carpio said that dialog is not a viable option as it would ‘jeopardize’ the PCA case.
Lawfare, “Fake News” and fake sources.
The Solita Monsod “lawfare” article is among countless anti-Dutete and anti-China commentaries, news headlines and social media posts since the Asean Summit and peaked during the summit, all intended to make the public believe Duterte is being soft on China by setting aside the arbitration decision for other times.
Headlines picked up by mainstream media from the Western and Japanese wires, and Filipino foreign correspondents blared headlines full of innuendoes of this or that diplomat or country wanting to include the arbitration decision in the summit agenda or in the Asean summit statement, or China lobbying to the irritation of Asean delegates, but no named source nor country is ever cited.
Take the ABS-CBN News report saying “Philippines urged to raise legal win vs. China during ASEAN Summit” by Christian Esguerra writing, “ A Southeast Asian nation with claims to the South China Sea on Thursday urged its neighbours to make reference to Beijing’s defeat before an international arbitration court in their statement at the end of the summit this week.”
The report did not or could not say what country since the two countries that may have interest in raising the issue, Vietnam and the Philippines, have clearly changed tact. President Duterte was emphatic that the China Sea dispute of the country with China is between the two and not relevant to the Asean Summit.
Vietnam, as can be concluded from the report we cite below, has clearly taken a new direction in its relations with China and attitude to its disputes. The U.S. government’s own Voice of America (VOA) on January 2017 reported, “Vietnam Signals Softer Stance on Contested South China Sea”
Then a Rappler reported, “China lobbying? How the Asean statement evolved” and its only basis for the headline is this, – “’The lobbying is quite intense. They (China) want it further watered down,’ one diplomat told Agence France-Presse.” No named source with whom one can verify the report?
Lobbying that is so obvious and blatant is by the former American foreign secretary of the Philippines under the Noynoy administration. Note the headlines, “Del Rosario urges: Don’t wait for better time to asset arbitral award”
and “Rody wrong not to raise arbitral ruling at summit” while mainstream media and the CSIS and Albert Del Rosario Institute (ADRI) fellows, and Yellows like Solita Monsod, appeared everywhere and badgered in every way to press the arbitration issue.
Another, a report from Reuters’ Manny Mogato and Martin Petty, “Push for South China Sea code stirs ASEAN suspicions about Beijing’s endgame”. And their sources for the “suspicion”? Their report said, “the ASEAN diplomat” and “…another diplomat from the 10 member bloc…” The only named citation was President Duterte’s announcement he will not press the arbitration issue and CSIS fellow Richard Heydarian derogatorily calling China “aggressor” instead of an impartial and unprejudiced term such as ”claimant”.
Duterte and China’s “Well-fare” – a war to lift Filipinos from poverty.
The “lawfare” years that raged under the Aquino administration from 2012 to 2016 saw the following results:
In the last quarter of 2012 the media started reporting the huge losses of up to P 120,000,000.00 or One Hundred Twenty Million pesos per week for the Filipino banana exporters. Tourism arrivals from China suffered a dramatic decline. The Mindanao Banana Farmers and Exporters’ Association (MBFEA) leaders expressed the agony of their sector, other farm sectors were under threat of boycott, all the while the “lawfare” proponents also rattled the sabre of the Philippines’ Mutual Defence Treaty with the U.S. which was an empty scabbard.
Upon the election of President Duterte and his redirection of the Philippines towards the Independent Foreign Policy that the Philippine Constitution mandates, the Philippine pivoted to Asia, to Asean, to Russia and particularly to China. The boon was immediate. Within months of Duterte’s election trade with China up-ticked, exports recovered, and after the October 2016 visit of Duterte to President Xi Jinping the country went into economic high gear.
The Philippines is seeing $ 25-Billion grants, aid, loans and investments pouring in from China, as well as purchase orders for $ 1.7-B worth of fruits and foodstuffs for the China consumer market. Doubling of tourist from China to OneMilion within 2017, and continuous growth thereafter. Not to be left behind, the Japanese offered $ 19-Billion of investments post-haste.
The grants and investments for the Philippines’ “Golden Age of Infrastructure” will boost the local jobs market, raise productivity, facilitate transportation, commerce and communication.
As Duterte famously said in one national radio interview, “The greatest good for the greatest number, that is the real equation for democracy.” This has been Duterte’s way, and China’s “win-win” formula.
“Well-fare” is a war against poverty by doing everything to promote economic development and prosperity for the Filipino people, focused on the Asian way of harmonious dialogue and consensus building, eschewing litigious engagements that create tension and misunderstanding. “Well-fare” is war against warfare and lawfare. The recent Asean Summit conclusion is the victory of Asia and Asean over Western interference.