CabSec: PH can't invoke U.S. defense treaty since Recto Bank incident is not 'an armed attack'

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Karlo Nograles dismisses Senator Panfilo Lacson's suggestion to invoke the Mutual Defense Treaty between the Philippines and the United States.

Metro Manila (CNN Philippines, June 18) — The Philippines cannot invoke its Mutual Defense Treaty with the United States in the ramming of a Filipino fishing boat by a Chinese vessel in Recto Bank since it does not constitute an armed attack, Cabinet Secretary Karlo Nograles said Monday.

"If there is no armed attack, I don't think the mechanism of the Mutual Defense Treaty can be triggered. So we have to be careful. It's not just any attack," Nograles told CNN Philippines' Politics as usual, in response to Senator Panfilo "Ping" Lacson's calls to refer to the treaty as a last resort.

Lacson had said the country can present to the U.S. evidence showing what happened to the Filipino fishing vessel. He added that invoking the treaty would justify U.S. presence in the region to prevent further hostilities.

But Nograles said that is not how the mechanism of the treaty operates.

Security analyst Lucio Pitlo III said the Philippines must inquire into whether the Chinese vessel which rammed into the Filipino boat was a militia boat or not.

"If it's just a fishing vessel, a civilian fishing vessel at that, having an incident with another Filipino fishing vessel...it would be difficult for us to actually activate the MDT," Pitlo said.

The 67-year-old treaty between Manila and Washington states that the countries "separately and jointly by self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack."

Attacks sanctioned by foreign governments on Filipino vessels and aircraft will trigger their obligations under the Mutual Defense Treaty, U.S. Ambassador to the Philippines Sung Kim said last week. Malacañang, however, does not want to classify the Recto Bank incident as an attack.

On China's recent statement

Meanwhile, Nograles said it remains unclear why China's recent statement omitted reference to the Chinese vessel being "besieged" by seven or eight Filipino boats. That detail was part of its earlier account of what transpired.

"There's no communication from the Chinese government about that." Nograles said. "Kung ano 'yung na-post nila sa [Whatever they post on] social media, or na-post nilang mga [or the posted] statements, does that constitute the reply to the diplomatic protest? Well, I think technically it's not the formal reply,"

The Cabinet Secretary maintained there is proper diplomatic protocol to follow, and that they are awaiting China's response to the diplomatic protest filed by the Department of Foreign Affairs.

He also defended President Rodrigo Duterte for dismissing the Recto Bank incident as a 'little maritime accident,' saying the public should refrain from coming to conclusions about the remarks of the President.

"I believe that when the President said that, I think it is in the context of for us not to immediately say that it was state-sanctioned," he added.

Duterte has been criticized for his pivot to China despite Beijing's encroachment in the West Philippine Sea, a portion of the South China Sea claimed by Manila and where Recto Bank is located. Critics also slam the administration for its failure to bring up the 2016 abitral tribunal ruling that invalidated China's claims to practically the entire South China Sea. The ruling also largely favored the Philippines in its row with China on the status of certain sea features in the West Philippine Sea.

The Cabinet Secretary, however, said the government is not abandoning that arbitral tribunal victory.

Pitlo argued that based on maritime laws, any foreign entity found within the EEZ should be arrested -- including the Vietnamese who rescued the 22 fishermen, if they were found poaching or fishing near the Recto Bank.

"It's very clear there are foreigners operating there. The Vietnamese who rescued our fishermen -- they're also there. They're not supposed to be there.They have no business to be there," he said.

How should the countries involved react?

Pitlo said he believes the account of the distressed Filipino fishermen, and that the biggest mistake the Chinese committed was to leave the fishermen adrift.

Under the United Nations Convention on the Law of the Sea, a state must require ships flying its flag to render assistance to persons in distress at sea. The Philippine and China are signatories to UNCLOS.

The security analyst said China can penalize the Chinese crew members with fines or possible imprisonment, as well as ask them to compensate the Filipino fishermen for damage to their boat and the loss of their livelihood.

"I think the justice that we can provide both sides and other fishers who are also operating in the area, the best justice that can really happen out of this incident is to prevent a similar instance from happening again," he said.

But former Ambassador Alberto Encomienda. who heads the Center for Archipelagic and Regional Seas Laws and Policies Studies, said the incident has been over politicized. The former envoy argued the diplomatic protest filed is already a strong political stance.

Encomienda also said the government must be cautious of the idea of invoking the Mutual Defense Treaty between the Philippines and the United States in this case..

"It's ominous because America is the one militarizing the region and introducing geopolitical issues which may not be there," the former ambassador said.

The former ambassador suggested the Philippines initiate talks with China, Vietnam and other claimant countries in the area to sign an agreement to create a mechanism on ocean governance.

"If we have that, these issues will automatically be covered. Because the entire comprehensive, coherent mechanism to address ocean governance will have to include sea lanes of communications, automatic identification system, we don't have to rely on testimonies," he said.

The Association of Southeast Asian nations and China are negotiating a Code of Conduct for parties in the South China Sea, which lays out the actions claimants can and cannot do in the widely contested region.

CNN Philippines' Correspondent Gerg Cahiles contributed to this report.