Former Senior Associate Justice Antonio Carpio (INQUIRER FILE PHOTO
MANILA, Philippines — The Philippines can invoke the 1951 Mutual Defense Treaty (MDT) with the United States after a China Coast Guard (CCG) ship struck a Philippine patrol vessel with military-grade laser that harmed some of its crew, retired Supreme Court Senior Associate Justice Antonio Carpio said on Tuesday.
“The recent use by [CCG] of lasers that temporarily blinded (Philippine Coast Guard) personnel constitutes an armed attack on a Philippine public vessel. The Philippines can thus invoke the MDT,” Carpio told the Inquirer.
“However, before the Philippines invokes the MDT,” he said the Philippines should first coordinate with the United States in releasing a joint statement warning that future use by CCG vessels of laser weapons on Philippine public vessels or aircraft “will trigger the operation of the MDT.”
Carpio, who has been using his legal expertise to champion the country’s control over the West Philippine Sea, said the CCG’s use of lasers flouted the 1998 Protocol on Blinding Laser Weapons, which China and the Philippines both signed with more than 100 countries.
He surmised that the CCG’s action was in compliance with China’s insistence to enforce the so-called “nine-dash line,” which an international arbitral court had already invalidated in favor of the Philippines.
“Thus, the laser weapon, even if it causes only temporary blindness, is still a weapon or an ‘arms’ that qualifies the attack as an armed attack under the [MDT],” the retired justice argued.
Carpio also maintained that China’s new coast guard law, which allows the CCG to use force in implementing its nine-dash line claim, contravened the United Nations Charter that prohibits the use of force in resolving disputes among states.
Maritime security expert Jay Batongbacal agreed that China’s use of military-grade laser against a Philippine vessel in the West Philippine Sea may be seen as “a threat of the use of force against another state, contrary to the UN Charter.”
“The fact that the lasers are used in combination with dangerous maneuvers, strongly worded warnings that state that consequences will be borne by the ones being warned, against a government vessel, to me qualifies the actions of the CCG as a threat of the use of force against another state,” he told the Inquirer.
“In the laws of war, there is the UN Protocol on Blinding Laser Weapons which prohibits the use of laser weapons specifically to blind combatants. Even more should that prohibition be applicable in times of peace,” he said.
Not justified
However, some lawmakers said the laser incident last Feb. 6 does not qualify as a ground to invoke the defense treaty with the United States.
Senate Minority Leader Aquilino Pimentel III and Sen. Francis Tolentino both disagreed with Carpio’s position, with the former warning that the Philippines should refrain from haphazardly citing the military deal with the United States.
“That is not an armed attack. And we should not lightly invoke the MDT as if we want war in our area. We should do everything to avoid war,” Pimentel said.
“The fly sitting on top of the carabao should be careful and not start thinking that it is bigger and stronger than the carabao,” he added.
Tolentino said the CCG’s action was “intrusive” and “hostile,” but did not fall under the definition of an “armed attack.”
“In terms of it being an ‘armed’ (attack), it’s not yet there because it’s not lethal. An ‘armed attack’ should be able to produce death or incapacitation,” said Tolentino, the vice chair of the Senate foreign relations committee.
Asked if it could be regarded as an act of hostility, he replied: “It is an act of hostility. [But] it cannot be considered a belligerent act.”
As to whether the Philippines may invoke the MDT, Tolentino said the treaty used the phrase “armed attack” as a requirement to operationalize the security and defense agreement.
“It might be a prelude to an armed attack, but it’s not yet [an actual attack]. To invoke the MDT of 1951 is not yet [justified],” he added.
Protest
On Tuesday, the government filed a diplomatic protest relating to the incident and called on Beijing to ensure its vessels cease “aggressive activities” within the country’s exclusive economic zone (EEZ).
“These acts of aggression by China are disturbing and disappointing as it closely follows the state visit to China of President Ferdinand R. Marcos Jr. in early January during which he and Chinese President Xi Jinping agreed to manage maritime differences through diplomacy and dialogue,” spokesperson Teresita Daza of the
Department of Foreign Affairs (DFA) said in a statement.
The actions of China’s coast guard vessel were a threat to Philippine sovereignty and security and the country had a prerogative to conduct legitimate activities within its EEZ, the DFA said.
Daza maintained that the country has the prerogative to conduct legitimate activities within its 370-kilometer EEZ, which includes Ayungin Shoal as reaffirmed by the 2016 arbitral ruling of the Permanent Court of Arbitration at The Hague that rejected China’s sweeping nine-dash claim over nearly the entire South China Sea.
“China does not have law enforcement rights or powers in and around Ayungin Shoal or any part of the Philippine EEZ,” Daza pointed out.
Daza urged China to comply with the 2016 arbitral ruling and direct its vessel to “cease and desist” from its aggressive actions against Philippine vessels.
Mr. Marcos met with the Chinese president in the first week of January where the latter promised to let Filipino fishermen fish in the resource-rich maritime area and avoid further escalation of tension on maritime disputes.
But at least seven diplomatic protests concerning multiple incidents in the strategic waterway have been filed since Mr. Marcos’ visit. This is also the 75th protest filed since Mr. Marcos became President in July 2022.
The Philippines has filed 203 diplomatic notes against China since last year, DFA data showed.
Protocol IV
The Protocol on Blinding Laser Weapons is an additional protocol to the 1980 Convention on Certain Conventional Weapons, which bans or restricts the use of specific types of armaments.
Also known as Protocol IV, it was adopted on Oct. 13, 1995, and came into force on July 30, 1998.
Signed by 109 nations, including the Philippines and China, it prohibits the use and transfer of laser weapons that are specifically designed, as one of their combat functions, to blind permanently. It also requires states to take every precaution possible, including training their armed forces, on their use.
Article 1 of Protocol IV reads: “It is prohibited to employ laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices. The High Contracting Parties shall not transfer such weapons to any State or non-State entity.”