A Greek-owned tanker carrying a Liberian flag on its way to Longkou, China passed though the South China Sea on Sept. 30, 2019. The ship named Green Aura is owned by the Aegean Company and manned by a Filipino ship captain named Manolo Ebora with 22 Filipino crew members on board. Ebora is a reserve officer of the Philippine navy with the rank of lieutenant commander.
According to Ebora, he purposely opted to pass close to the disputed Scarborough Shoal because of inclement weather. As his ship neared the 12-nautical-mile mark of the disputed shoal, it received a radio call from the Chinese coast guard warning the ship to stay away from the area. Ebora responded saying the oil tanker is just making an innocent passage. The Chinese coast guard kept on repeating the call to change course until the Green Aura reached nearly 11 kilometers from the shoal.
After repeated warning, Ebora though radio told the Chinese coast guard, “This is Scarborough, we are just passing. May I know? Is this a Chinese territory water? I think it’s not Chinese [territorial] water.”
The radio warning was getting tense until he saw five ships belonging to the Chinese Coast Guard and the Maritime Police approaching in an attempt to block Green Aura. The Chinese ships tailed Greed Aura until it left the area.
The captain’s conduct was in response to the Chinese coast guard instruction to change course. Instead, the Captain Ebora chose to question the Chinese coast guard. For that, Ebora nearly brought the country to the brink of armed confrontation with China all for his “nationalistic passion” that Scarborough Shoal is part of our territorial waters, it being within the country’s 200-mile exclusive economic zone (EEZ).
Whether or not Scarborough Shoal is part of our territory is not for him to decide. His only duty is to secure the safety of the ship to reach its destination on time. He cannot act on his own judgment like using his vessel to incite the country to war. While his action cannot be interpreted as sufficient to start a war, rather his adventurist tendency clearly shows that his misplaced nationalism could push the country to an armed confrontation with China.
We are not saying he is right that Scarborough or Panatag Shoal is ours. However, his entry into an area now effectively occupied by China is an attempt to destabilize the peace in the region. Would China not interpret the intrusion an act of provocation that could give rise to acting in self-defense?
Even if the Philippines is absolved from being involved in that incident, claiming it was the act of a private citizen serving as captain of the oil tanker, the resulting damage that would ensue in the oil spill could ultimately result in the payment of horrendous damage just to restore the environment, he being a citizen acting recklessly in violation of his duty as ship captain.
If this unfortunate incident should happen again like what B.S Aquino did to intimidate China by arresting the Chinese fishermen and sending our navy cutter resulting in the loss of the Panatag Shoal to China, that could have been a repetition with clear signs that the incident was premeditated by an unhinged captain. Worse, Ebora might have coordinated with the opposition to embarrass China.
Such insubordination can make Ebora liable for inciting to war or giving motives for reprisals under Article 118 of the Revised Penal Code which provides: “The penalty of reclusion temporal shall be imposed upon any public officer or employee, and that of prision mayor upon any private individuals, who, by unlawful or unauthorized acts, provoke or gives occasion for a war involving or liable to involve the Philippine islands or exposes Filipino citizens to reprisals on their persons or property.”
The captain had the gall to explain that upon hearing the radio message to change course, he invoked the principle of “innocent passage.” He should have realized that to question China’s jurisdiction over the Shoal is inconsistent to his claim of innocent passage. One cannot invoke that principle while questioning the country that is preventing the vessel from passing on the ground that the intercepting vessel has no jurisdiction over that territory. Claim of innocent passage must be done in good faith for there are strict limitations and conditions before the host state would allow the vessel to pass. This is based on the principle of mare liberum laid down by Hugo Grotius.
Beside, innocent passage does not apply in wide bodies of water beyond the 12 nautical mile called territorial waters from the shoreline of the adjacent state. In which case, Green Aura could only claim freedom of navigation. Thus, when China Coast Guard requested Green Aura to change course, the Chinese were aware there was still an area for the ship to maneuver to allow it to proceed to its destination. The right of innocent passage has reference to that body of water where passing ships have no alternative but to pass the area, but must comply to the conditions stated in Article 19 of the UN Convention on the Law of the Sea.
Had the incident been allowed to escalate with Ebora given a free hand to make his personal prejudgment that Panatag Shoal is ours, that instance could have created a very dangerous precedent. He would have tied the government to an unending wrangle with China over a disputed island to block many of the economic and developmental projects we have with the latter to the delight of the opposition and to the agitating Americans.
As this column has repeatedly stated, Spain and the US signed the Treaty of Paris on Dec. 10, 1898 demarcating the official boundary of the Philippines. Unfortunately, the Treaty excluded many of the disputed islands including the Scarborough Shoal and the Spratlys. Ownership over these islands was reaffirmed in the Treaty of San Francisco in 1950 dictating to Japan to return its occupied islands in the South China Sea to China.
The ratification of UNCLOS in 1982 created new rights for states with bodies of water like the creation of the exclusive economic zone (EEZ) allowing states the exclusive right to exploit mineral resources up to 200 nautical miles from their shoreline. This complicated the claims over certain areas in the South China Sea. Spratly Islands and in the Scarborough Shoal which are within the 200-mile limit of the country’s EEZ or 120 miles off the coast of Zambales but outside the 24-mile jurisdictional boundary defined as territorial waters and of the boundary demarcated by Spain and the US indicating the boundaries of the Philippine archipelago.
Many Filipinos subscribe to this position that Panatag is part of our territorial waters, considering it as the traditional and historic fishing ground of Filipino fisherman. This is part of the propaganda campaign. Despite the absence of any legal basis under international law, the PCA rendered a decision in our favor but unfortunately, not recognized by China. Hence, the somersaulting of the US with regard to the ownership by China of those islands in the South China Sea continues to draw followers. This explains why the US sought to reintroduce its military basis in the Philippines. All these are reflective of the xenophobic fear of the US of being economically overtaken by China.