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PH-US Mutual Defense Treaty may be invoked for China’s aggression in WPS

The Mutual Defense Treaty (MDT) between the Philippines and the United States extends to the escalating Chinese aggression in the West Philippine Sea, contrary to the claim of lawyer Harry Roque who referenced a 1975 telegram from former U.S. National Security Adviser Henry Kissinger saying the bilateral agreement could not be activated in the Spratly Islands as the sovereignty of the area is still disputed.

Roque, a former presidential spokesperson, insisted in his YouTube live video on April 25 that Article V of the treaty does not apply to the West Philippine Sea according to Kissinger’s declassified document. He said at the 7:34 mark:

Ang sabi ni Henry Kissinger, malinaw. ‘Yung unang circumstance, metropolitan territory of either party, or on island territories in the Pacific under jurisdiction of either party. Ang problema, ang Spratly Islands ay disputed. So hindi pa siya malinaw na territory ng Pilipinas (What Kissinger said is clear. The first circumstance is, the metropolitan territory of either party or on island territories in the Pacific under the jurisdiction of either party. The problem is, the Spratly Islands are disputed. It is still unclear whether it is Philippine territory). 

He added:

Kaya ang sabi ni Henry Kissinger, hindi magiging applicable ang Mutual Defense Treaty sa (Spratly Islands), kasi ang posisyon ng America ay undetermined kung sino talaga ang may titulo sa mga islang ‘yan (Which is why Kissinger said the Mutual Defense Treaty would not be applicable to the Spratly Islands as America’s position on who has sovereignty of the land remains undetermined).

Roque’s statement came after U.S. President Joe Biden reaffirmed on April 11 his administration’s “ironclad” commitment to the treaty in a trilateral meeting with President Ferdinand Marcos Jr. and Japan Prime Minister Fumio Kishida amid elevated tensions in the West Philippine Sea. 

Signed in 1951, the Philippines-US MDT requires both countries to support each other in case either of them is attacked by another party.

Jay L. Batongbacal, maritime law expert and director of the University of the Philippines Law Center’s  Institute for Maritime Affairs and Law of the Sea, said many things have changed since Kissinger wrote the document in 1975 which, he added, does not make it representative of the current U.S. policy on the MDT. 

One of these, he said, is the 2016 ruling of the Permanent Court of Arbitration that ruled against China’s claims over the West Philippine Sea in accordance with the United Nations Convention on the Law of the Sea. The ruling read:

The Tribunal concludes that, as between the Philippines and China, China’s claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the “nine-dash line” are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention. 

The Philippines refers to portions of the South China Sea it claims as within its exclusive economic zone as the West Philippine Sea.

In the document written nearly 40 years ago, Kissinger also recognized the possibility of the Philippines having territorial claim over the Spratly Islands. He wrote:

Above does not mean (that the Philippines) could not expand territory over which it is sovereign. We do not see (a) legal basis at this time, however, for supporting the claim to (Spratly Islands) of one country over that of other claimants (...) USG would welcome and recognize international settlement agreed to by all claimants, though we acknowledge this would be cold comfort in light of present political realities.

USG refers to the U.S. government.

Batongbacal also mentioned “the clear and consistent U.S. policy that regardless of who eventually ends up with the disputed islands the process must be peaceful and without coercion or use of force” as among the reasons Kissinger’s telegram cannot be appropriated as the current American policy. 

In May 2023, the Philippines and the U.S. reinforced their commitments through a Bilateral Defense Guidelines, which states that an aggression in the Pacific, including anywhere in the South China Sea, to either nation’s Coast Guards would invoke the Articles IV and V of the MDT.  

Article V of the agreement qualifies an “armed attack” which both countries are obliged to act upon.  It provides: 

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.

A 2018 article authored by Batongbacal further mentions that the U.S. and the Philippines both perceived a “serious and simultaneous threat” regarding China’s maritime activity in the area, which makes the Spratly Islands no longer “neutral zones” for the U.S. 

In Roque’s livestream, he did not clarify that the Philippines’ territorial claim over the West Philippine Sea already has legal backing, which may be grounds to activate the PH-US Mutual Defense Treaty in case an aggression occurs in the area. 

His 25-minute YouTube live video has garnered 25,000 views, 1.900 likes and 186 comments as of writing. A seven-minute version of the video was also uploaded to his YouTube channel which has 5,700 views, 371 likes and 53 comments. The shorter version can also be found in his Tiktok and Facebook accounts. (HS)


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