China vs. Philippines: What will the U.S. do?

Monday, May 14, 2012

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)
                Phantom Report

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