The Mutual Defense Treaty (MDT) between the Philippines and the United States reached its 73rd anniversary this month. Amid the continued tension in the West Philippine Sea, invoking the MDT has been brought up often. Some feared that this might lead to a war with China. But according to legal experts, that’s not necessarily the case.

By Gabriel Kim Leal

(August 27, 2024) – Last June 17, a China Coast Guard (CCG) vessel aggressively maneuvered close to a resupply vessel of the Philippines heading to BRP Sierra Madre, a grounded ship serving as the country’s outpost in Ayungin Shoal in the West Philippine Sea.

The CCG rammed, towed, and boarded—with some personnel wielding sharp weapons—the escorting rubber boats of the Philippine Navy, resulting in one Filipino soldier losing his thumb.

The CCG’s aggressive actions in the West Philippine Sea have continually raised alarm, leading some to wonder if the Mutual Defense Treaty (MDT) between the Philippines and the United States (US) could be invoked to stop China.

Some camps feared that this would lead to a war. But is that necessarily the case?

“It doesn’t mean that once the MDT is triggered, it’s automatically a war,” said Michael Tiu, a constitutional law professor at the University of the Philippines. “There are a lot of steps that can be taken before reaching the most extreme scenario.”

He noted that the MDT could include economic, diplomatic, and political measures, depending on the discretion of the Philippines and the US.

He furthered that under the treaty, the sharing of mutual aid extends to intelligence and surveillance, with the US relying on its allies’ information to support its strategic interests.

“The MDT isn’t just about war. If they want to consult, share information, or develop their partnership, those efforts will still be grounded in the MDT,” added Tiu.

Pres. Bongbong Marcos Jr. made a bold statement during his State of the Nation Address (SONA) last July 24, asserting that “the Philippines cannot waver” in its claim over the West Philippine Sea.

“Ang West Philippine Sea ay hindi kathang isip natin lamang. Ito ay atin. At ito ay mananatiling atin hangga’t nag-aalab ang diwa ng ating minamahal na bansang Pilipinas,” declared Marcos, receiving loud cheers from the lawmakers in attendance.

He made no mention of the MDT in his SONA. But last April, he said the defense pact with the US might be invoked if a Filipino gets killed in the West Philippine Sea.

“Whether they’re merchant, marine, coast guard or actual grey vessels or navy vessels, it does not matter. That is an attack on the Philippines by a foreign power,” said Marcos during the presidential forum of the Foreign Correspondents Association of the Philippines.

Armed attack

The MDT was signed by the Philippines and the US on August 30, 1951 during the presidencies of Elpidio Quirino and Harry Truman. It committed the two parties to mutual defense in the event of an armed attack on either nation.

“Each 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,” stated Article IV.

The aforementioned incident in Ayungin Shoal raised the question: Did it constitute an armed attack? The CCG brandished knives, pointed sticks, and an axe in striking the Philippine Navy and slashed one of the escorting rubber boats.

“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,” added Article V.

Laws regarding an armed attack, however, remain unclear.

“There is no exact definition. International jurisprudence tells us that acts in question must reach a certain level of gravity to constitute an armed attack,” said Evecar Cruz-Ferrer, an international law professor at the Ateneo de Manila Law School. “Even the United Nations (UN) in its resolution requires, for acts to constitute aggression of one country against another country, it has to be of sufficient gravity or level.”

Despite the sharp weapons and forceful actions of the CCG, executive secretary Lucas Bersamin said what happened cannot be considered an armed attack. He said it was just a “misunderstanding or an accident.”

This was later echoed by Philippine Coast Guard (PCG) spokesperson Cdre. Jay Tarriela.

“Our objective is to resupply, the Chinese objective is to prevent the resupply from happening. That is the only thing that happened there,” said Tarriela in a media conference.

But Department of National Defense secretary Gibo Teodoro Jr. saw it differently, rebuking Bersamin and Tarriela.  

“We see the latest incident in Ayungin not as a misunderstanding or an accident. It is a deliberate act of the Chinese officialdom to prevent us from completing our mission,” said Teodoro in a media briefing at Malacañang.

There were suggestions to amend the MDT to define what an armed attack is. Cruz-Ferrer, however, warned that this could be tricky.

“Definitions can be a double-edged sword. They are good in ensuring clarity of the intention of parties, however, they can also restrict application to future scenarios not envisioned by the parties at the time of the agreement,” explained Cruz-Ferrer.

For Tiu, the MDT allows for measures even without an armed attack.

“It’s not just triggered by an armed attack but if there’s a security threat as well,” said Tiu. “The ministers of each country can consult if they believe there’s a threat to the region’s security.”

Last year, the Philippines and the US released new bilateral defense guidelines to address regional security challenges, adding that an armed attack “anywhere in the South China Sea” on Filipino vessels would invoke mutual defense obligations of the US.

The South China Sea overlaps with the West Philippine Sea.

A dormant treaty?

According to the MDT, the Philippines and the US are prohibited from using force in international relations except for self-defense. As member-states of the UN, both countries are bound by the principles of its charter, which promotes international peace, security, and cooperation, as stressed by the MDT.

“Settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations,” stated Article I.

Just two days before the violent incident in Ayungin Shoal, the Philippines lodged a claim before the UN for an extended continental shelf in the South China Sea, where $3 trillion worth of trade passes annually, to explore natural resources in the area.

But China has refused to acknowledge international laws, including the UN Convention on the Law of the Sea and the watershed decision of the Permanent Court of Arbitration in 2016 that nullified its so-called nine-dash line.

Some lawmakers argued that it’s time to activate the MDT to deter China’s extensive claims in the West Philippine Sea.

Cruz-Ferrer reminded that the MDT is not a “dormant treaty” awaiting activation.

“There was a bilateral defense agreement in 2023 that reaffirmed the MDT and also, the signing of the Manila Declaration in 2011. The Visiting Forces Agreement (VFA) and Enhanced Defense Cooperation Agreement (EDCA) are implementations of the MDT. One can say that the MDT is the mother agreement,” said Cruz-Ferrer.

The VFA and the EDCA, established in 1999 and 2014, respectively, govern the conduct of visiting troops of the US in the Philippines and form the basis for military exercises between the two countries.

“Gray zone” tactics

According to Cruz-Ferrer, China has been employing “gray zone” tactics—coercive actions that do not escalate to outright conflict—while maintaining its dominance in the West Philippine Sea. 

These include water cannoning, ramming, and shadowing, which have all happened to the Philippines over the past few years.

Last May, China issued an anti-trespassing policy in the South China Sea, warning that violators will be detained without trial for up to 60 days.

Both Cruz-Ferrer and Tiu posited that “gray zone” tactics are also China’s way to test the depth of intervention of the US in the Asia-Pacific.

“There is provocation on the part of China, but the acts are calculated to not make them rise to the level of an armed attack, said Cruz-Ferrer. “As to China’s intention, we cannot second guess. Some analysts are saying that China’s actions might be intended to test whether the US will really come to the Philippines’ aid.”

“If the Philippines senses that the US has no appetite to assist, of course, we don’t want to invoke the MDT only to be left hanging. That would signal to China that the alliance isn’t as strong as it seems,” said Tiu.

The US has often described its decades-long alliance with the Philippines as “ironclad.”

The Philippines has filed numerous diplomatic protests against China, with the US expressing support. China, however, has merely dismissed them.

China has consistently denied any wrongdoing, saying its actions have been “professional, restrained, justified, and lawful.” It has also repeatedly accused the Philippines of spreading false narratives regarding the maritime dispute.

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The PCG warned the public to not fall prey to China’s propaganda.

Possible repercussions

The Philippines avoids escalation for “perfectly understandable reasons,” according to Cruz-Ferrer.

“We do not want to accidentally trigger an armed conflict. If two military forces are utilized, not civilian units, in the contested area, should there be a confrontation between these units, the chances of escalation might be higher,” said Cruz-Ferrer.

She noted that during the term of the late former president Noynoy Aquino III, the Philippine Navy was replaced by the PCG in patrolling the West Philippine Sea as part of a broader de-escalation strategy.

“We need to acknowledge that our armed forces, though we have really talented people, cannot match China in terms of vessels, number of soldiers, etc. We need to acknowledge the disparity in military resources,” added Cruz-Ferrer.

Even before his latest SONA, Marcos reiterated that the Philippines would never “instigate a war” with any country. He also reminded the PCG to “never be provoked” by China’s bullying tactics.

In the Philippines, the president cannot unilaterally start a war. Section 23, Article 6 of the 1987 Constitution requires a vote of two-thirds of both chambers of Congress in a joint session, voting separately.

“Congress needs to declare first that we’re in a state of war. Then the president’s war powers and emergency powers will come into play,” said Tiu.

The same goes for the US, underscoring the complexity of the process.

“Although the US executive branch is powerful, its war powers are, like in the Philippines, controlled by Congress. They also have to go through that process internally,” added Tiu.

Marcos’ predecessor, former president Rodrigo Duterte, justified his soft stance on the maritime row, saying the Philippines “cannot afford to go to war” with China.

Duterte infamously dismissed the historic arbitral ruling as “a piece of paper” that should be “thrown into a wastebasket,” a remark that China later echoed a few times.

According to international studies professor Renato Cruz De Castro, Duterte, who focused his foreign policy on China, adopted an “appeasement policy” to manage the territorial dispute.

“(Duterte accepted) China’s core procedural norms for dealing with the South China Sea dispute—shelving the sovereignty issue, managing the conflict in bilateral forums, and focusing on other issues that allow bilateral engagements, such as joint development, strengthening of bilateral trade, and Chinese support for Philippine development,” wrote Cruz De Castro in his study in 2022.

In applying the “appeasement policy,” he noted that Duterte extended two key diplomatic concessions to China: Putting aside the landmark arbitral ruling and downgrading the Philippine-US alliance.

Duterte even threatened to terminate the MDT, the VFA, and the EDCA after the US revoked the visa of his close ally, Sen. Bato Dela Rosa, in 2020. Known for his off-the-cuff remarks and flip-flopping statements, Duterte also ordered the US to pay the Philippines if it wanted to maintain the VFA. He eventually withdrew his proclamations.

Economic coercion

China is one of the Philippines’ largest trading partners, and any escalation of confrontation could have heavy adverse effects on the economy.

This is particularly concerning given China’s history of economic coercion. In a briefer by the National Defense College of the Philippines (NDCP) in 2022, it recalled that China blocked imports of agricultural products from the Philippines during the standoff in Panatag Shoal in 2012.

It added that China discouraged its citizens from visiting the Philippines in 2014, citing “security concerns.” Moreover, China’s trade with the Philippines declined significantly following the country’s legal move at the Permanent Court of Arbitration.

“The most infamous recent examples of economic coercion against the Philippines have come from China. These acts are believed to be levied in response to Philippine actions in defiance of Chinese sovereignty claims,” wrote the NDCP.  

The last time the Philippines went to war was during World War II when Japan invaded the country. The period saw immense suffering, with an estimated 527,000 Filipinos, both military and civilians, losing their lives.

By the end of the war in 1945, the country’s gross domestic product dropped by about 70% due to widespread destruction of infrastructure, disruption of trade, and desolation of resources, among other economic hardships.

Warring with China, Cruz-Ferrer noted, may not be the best option for the Philippines, especially amid national issues, including inflation, poverty, hunger, and unemployment, among others.

“States will always prioritize their national interests. Will it be to the country’s advantage to go to war? How will the war affect the country economically?” added Cruz-Ferrer.

The US invests approximately $120 million in the Philippines annually as part of the alliance. It has sent $5 billion in aid to the Philippines in the last 60 years, according to the US State Department.

Sensitive geopolitics

Following Marcos’ “friend to all” approach in foreign policy, the Department of Foreign Affairs stressed that a peaceful resolution to the maritime row remains among the Philippines’ top agenda.

But how will the Philippines fight back if diplomacy doesn’t work against China?

“Solutions should be found in the intersection between law and geopolitics,” said Cruz-Ferrer. “The arbitral ruling is not the only consideration in this scenario. There are other applicable international laws in this situation. It is misplaced to think that the arbitral ruling is the aspect we should consider. The real challenge is to find the balance.”

China has tried to prevent the US from interfering in the maritime conflict to establish itself as the dominant power in the Asia-Pacific. By minimizing the US’ involvement, China can assert its influence over regional affairs and strengthen its geopolitical position.

Last June, US defense secretary Lloyd Austin said a war with China was neither “imminent” nor “unavoidable” amid the escalating tension in the South China Sea, suggesting a renewed dialogue between him and his counterpart in China to avoid “miscalculations.”

ALSO READ: OPINION | Philippines: No need to invoke Mutual Defense Treaty

The potential disruption to global trade routes, the economic interdependence between the two world powers, and the upcoming presidential elections in the US add layers of complexity to the decision-making process.

“The US does what it wants. It’s always been like that. Even with treaty commitments, it will do what benefits the US at the moment,” said Tiu. “The US, of course, doesn’t want to be powerless in the face of conflict.”

“Provisional agreement”

The Philippines vowed to continue resisting China’s “reckless behavior” in the West Philippine Sea.

Marcos also ordered the PCG to seek his approval before announcing any resupply mission to avoid further conflict with China.

“Sometimes, tensions tend to happen when officials are unaware when certain acts are going to happen. Probably, when Chinese officials are informed of the Philippines’ resupply mission, they might adopt a different strategy,” said Cruz-Ferrer.

It seemed China finally cooperated with de-escalation efforts after entering into a “provisional agreement” with the Philippines last July 21 regarding any RORE mission in Ayungin Shoal.

Until now, the DFA hasn’t disclosed the details of the deal but maintained that it won’t compromise the country’s position in the West Philippine Sea.

The Philippines’ first resupply mission after the “provisional agreement” went smoothly.

China, however, pointed out that it was informed of the resupply mission before it was carried out. This was slammed by the Philippines as a “mischaracterization” of the “provisional agreement,” as China intimated that the Philippines had to seek permission. 

“Let us make it absolutely clear: The understanding between the Philippines and China was concluded in good faith, with the explicit agreement that it would not prejudice national positions. It is not helpful to keep giving false notions about what has been agreed on and how they were implemented,” said the DFA in a statement.

Last August 8, not even a month since the “provisional agreement,” two planes of China’s People’s Liberation Army Air Force performed “dangerous maneuvers” and dropped flares during a routine maritime patrol of an aircraft of the Philippine Air Force over Panatag Shoal.

The Malacañang denounced China’s unjustified, illegal, and reckless” actions, while the DFA lodged another diplomatic protest.

“We have hardly started to calm the waters, and it is already worrying that there could be instability in our airspace,” the Malacañang said in a statement.

Following the incident, the DFA said the “provisional agreement” was up for further review.

Last August 25, the CCG water cannoned and rammed a vessel of the Bureau of Fisheries and Aquatic Resources in a resupply mission to Escoda Shoal. A day later, also during a resupply mission in the same shoal, the CCG rammed two vessels of the PCG. The coast guard aborted the trip and returned to Buliluyan Port in Palawan.

When asked by reporters if the back-to-back incidents would trigger the MDT, Teodoro was non-committal.  

“That is putting the cart before the horse. Let us deter an armed attack, that is the more important thing,” said the defense chief.

Last-resort option

Honoring the MDT, the US offered assistance to the Philippines amid the rising tension in the West Philippine Sea. But as revealed in a report by international news agency Reuters, the Philippines turned it down. 

Armed Forces of the Philippines chief Gen. Romeo Brawner Jr. and national security adviser Eduardo Año said they have not requested any support from the US as the Philippines intends to rely on its own resources. 

“Yes, of course, they (US) have been offering help and they asked us how they could help us in any way,” said Brawner, as quoted in the report. “We try to exhaust all possible options that we have before we ask for help.”

Still, understanding the conditions under which the US is obligated to intervene might make China reconsider some of its strategies to avoid a direct conflict with its fellow global juggernaut.

In the face of puzzling politics and continued calls to expand the MDT, legal experts still suggest considering the treaty as a last-resort option rather than a tool for responding to every provocation.

“The MDT is proving to be helpful in our current situation in the West Philippine Sea compared to having nothing,” said Tiu. “Without it, things would be more optional. It’s still somewhat optional now in the sense that if the US doesn’t want to follow through, it can choose not to. But it’s better that we have it (MDT).”

Defining when the US would step in to back the Philippines against China is not a simple matter. In the meantime, the Philippines may take advantage of the uncertainty by modernizing its military and exploring other defense strategies, such as joint patrols with the US and other allies to deter aggression in the West Philippine Sea.

“We don’t want hostilities. That’s not really productive for both countries,” said Tiu.

“When you go to war, everyone gets affected. Whatever interactions we’ve had (with China), they’ll tighten up. There will be repercussions. That’s exactly why we don’t want to escalate the tension,” said Cruz-Ferrer.

(PM)