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Pilo Hilbay: Our defender against China

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Masigan 041519 - Pilo Hilbay: Our defender against China

Many Filipinos may not know Florin “Pilo” Hilbay yet — but they should. Hilbay is among our rare public servants with the courage to speak out against the Duterte administration’s policies towards China. For Hilbay, what belongs to the Philippines should remain for the Philippines and he is willing to risk life and liberty to protect our interest.

For those worried about China’s creeping invasion, Hilbay is the man who will fight the cause. After all, he has done it before. Armed with one of the sharpest minds of our generation, Hilbay dragged China to court and won.

The China-Hilbay saga started in 2013, when, in a unilateral act of aggression, China announced that the Spratlys, Parcel islands and Maclesfeild bank would be administered by Sasha city, a territory of China. No less than a senior colonel of the Chinese military was put in charge. Suspicions were rife that China would build a military base to support its navy and air force — something China vehemently denied. Years later, the suspicions were proven true.

The Chinese roped off the entrance of the Scarborough lagoon, preventing Philippine vessels from entering, including those of our fishermen. The Chinese military accosted Philippine vessels that traversed the area, confiscated their contents and detained the crew. It was a blatant disrespect of our sovereignty.

The Aquino administration resisted China’s bullying tactics and moved swiftly to defend our sovereignty. It did what any law-abiding republic would do given the situation — it took China to court. It was the only claimant of the disputed territories with the political will to do so. Neither Vietnam, Taiwan, Malaysia or Brunei resisted China’s illegal occupation in the same aggressive manner.

In 2014, the Philippines filed a case against China before the Permanent Court of Arbitration of the United Nations Convention of the Laws of the Seas (UNCLOS). Pilo Hilbay was our Solicitor-General back then and he led our charge at the Hague. He argued that China’s territorial claim was in defiance of the UNCLOS accord to which both China and the Philippines are signatories. He further argued that the basis of China’s claim, its nine-dash line, was conjured out of convenience only in 1947 in contrast to Philippine historical claims whose basis are nautical records dating back to the 15th century.

The nine-dash line is a preposterous claim by any account. If it is to be given credence, then Italy would have the legal grounds to claim the entire continent of Europe. It is absurd. It is for this reason that the international community including the US, Japan, Australia, the EU and ASEAN (except Cambodia) supported the Philippines’ legal argument.

In 2016, the tribunal ruled in the Philippine’s favor saying that China’s nine-dash Line is invalid. It further ruled that China has no legal claim nor historical rights over Philippine Exclusive Economic Zone and that it had behaved unlawfully. Hilbay and his team won the case for the Philippines. This gave us legal grounds to demand that China vacate the disputed territories.

Despite the ruling of the courts, China remained belligerent. In an act of defiance, it even expanded its territorial grab and accelerated the construction of its military base. In a statement, it said that it rejects arbitration and will continue to assert its historical claims over the territories even if it defies international laws.

Following the Philippine’s victory in the Permanent Court, the next step would have been to assert our legal claim by evicting China, even by force. Unfortunately, President Barrack Obama did not support the Philippines in this respect. We can only speculate that Obama’s decision was borne of out of fear of economic retribution. We could not evict China by ourselves which is why they still occupy our territories up to this day.

CHINA AND THE DUTERTE ADMINISTRATION
Contrary to what most believe, the estimated 11 billion barrels of oil, 190 trillion feet of natural gas and rich fishing resources is not China’s primary motivation.

After many years of working on the Philippines’ case versus China, Hilbay believes that China’s motivations are three-fold. They are to control world trade, to secure its vulnerable borders and to justify its illegal territorial grab.

On the aspect of trade, the West Philippine Sea is where one-third of world trade passes through. It is the channel by which 2.2 billion consumers can be accessed. To control the West Philippine Sea is to control global trade. Many speculate that once China has fully militarized the area, it will be in the position to require all ocean vessels to obtain prior clearance before they are allowed passage. They may even charge a toll like they do in the Panama Canal. In short, freedom of passage will no longer be a free right in these waters. This will give China unprecedented control over the flow of goods in the most populous region in the world.

On the military side, the West Philippine Sea is the easiest way to penetrate the Chinese mainland. China needs to control the area to secure its most vulnerable access point.

As for the territorial grab, the more islands China claims as its own, the more it can invoke ITLOS Laws to further annex another 200 kilometers of Exclusive Economic Zone. This is a ploy called the “continuous annex strategy.”

As an aspiring world superpower, China needs to present itself as a benevolent, responsible nation. Calling out China for not respecting the rule of law is something the Duterte administration could do to apply pressure. It has in fact done the opposite.

By not pressing forward with our claims and our victory at the Hague, the Duterte administration has made China’s land grab costless to them and free of repercussion. Mystifyingly, it even treats China like a preferred guest by adopting policies that appear to be skewed to China’s favor and at Philippine expense.

Consider this: Our government has not questioned China’s defiance of the court ruling before the UNCLOS body. This has kept them in good standing with the UN even if they defied a treaty in which they are signatories. It has relaxed immigration laws for Chinese workers even if it takes away jobs from Filipinos and even if the privilege is not reciprocal; it has awarded China lucrative deals in our telecommunications industry even at the risk of national security; it has gone soft on defending our fishing rights especially in the coasts of Zambales, Pangasinan and Ilocos Sur where our fishermen are bamboozled by Chinese patrol vessels; More damagingly, it has entered into a memorandum of understanding with China for joint exploration of the West Philippine Sea. Note, when this MOU progresses to become a binding contract, it will effectively invalidate our victory at the UNCLOS courts.

The concessions given to China are excessive. It belies strategic sense. The question is, why is the Duterte administration bending down to the floor for China?

Is it for investments? Certainly not. Records show that despite all the promises of Chinese investments, our intake from them was a measly US$28.8 million in 2017 and US$198.7 in 2018. China’s investment to the Philippines are dismal.

Is it for soft loans? While China talks big about easy availments of official development assistance, even NEDA Secretary Ernesto Pernia admits that Chinese ODA are among the most difficult to obtain. In addition, Chinese ODAs are not the only game in town as Japan offers comparative, if not better terms.

Is it for trade concessions? We have not received anything extraordinary outside the unrestricted entry of our bananas into China. China has not changed the deceleration trend of our exports.

Is it for military alliance? It makes no sense since China is the invader of our territories and, hence, our enemy.

Is it for diplomatic re-alignment? Pursuing an independent foreign policy is something we all agree with. However, the reality is that government has in fact pivoted away from the US and towards China. What we have is not an independent policy but a pro-China policy.

So again, we ask….. why the excessive deference for China?

Hilbay can only speculate the reasons why. I have no clue. All I know is what I see — that Filipino sovereign and economic interests are seemingly compromised in favor of the invader. Knowing that it is inflicted by our own government adds insult to injury.

I have many friends working for this administration and all of them are supportive of government’s pro-China policies. I’d like to think that their loyalties are not to China per se but to the Chief Executive whom they serve.

As Hilbay and I delved deeper into China’s progressive invasion, I dropped my pen, put my palms on my face and made a deep sigh of frustration. It was an unguarded impulse….. my remorse over the state of affairs revealed itself. It was not professional for me to show emotions in a high-level discussion, so I apologized.

Hilbay told me that he has seen the same raw emotions among thousands of Filipinos across the archipelago. The feelings of frustration, fear and uncertainty are so strong that most don’t even want to talk about it.

All these underlines the fact that we need a strong opposition in the Senate. Policies of government need to be mitigated… they need to be vetted without partisan bias. Having a balanced Senate serves our best interest, even those who rabidly support this administration.

Hilbay brought China to court and won. He will do it over again if he needs to. This is why we should all remember his name. More than political dynasties, convicted plunderers, and showbiz personalities, Pilo Hilbay deserves a seat in the Senate. Let’s put him there.

 

Andrew J. Masigan is an economist

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