Category Archives: Use of Force

Taken for a ride, yet again

by Romel Regalado Bagares

A little more than a week ago, local and international news agencies were abuzz with reports about US Defense Secretary Leo Panetta’s announcement of a new “pivot” policy – a shift in American defense posture – one that would mean the redeployment of  60 percent of naval assets to the Asia-Pacific region by the year 2020.

Then as if on cue, Gen. Martin Dempsey, chairman of the U.S. Joint Chiefs of Staff, flew to Manila a few days after Panetta’s announcement for talks with his Philippine military counterparts.

At a press briefing in Manila, Dempsey said the shift would feature “three “‘mores” in US naval operations in the region —more attention, more engagement and more quality.

Foreign Affairs Secretary Alberto Del Rosario, reacting to Dempsey’s pronouncements, happily affirmed that the new American defense policy environment would mean Filipinos are to expect more port calls in the Philippines of American navy ships.

As Mr. Panetta was winding up his Asian trip,  President Benigno Aquino III met with President Obama  at the White House and the two leaders would subsequently announce greater cooperation in various areas, notably in common security concerns in the West Philippine Sea.

In addition, Obama promised increased military assistance to help the Philippines build a “credible minimum defense,” including a US$ 30 million grant this year – which is nearly double what it gave its former colony since the latter terminated the presence of US bases at Clark and Subic in 1991 – and a second decommissioned coastguard cutter for the Philippine Navy.

Despite loud denials from the Americans, the “pivot” is seen as an answer to the growing ambitions of China in the region, which threatens US access to international sea lanes crucial to its long-term economic and military interests.

Unprecedented tension between China and the Philippines over Scarborough Shoal in May this year seemed to have provided a perfect excuse for the US to reassert its presence in the region.

Indeed, US Secretary of State Hillary Clinton, testifying before the US Congress, warned against a  China increasingly asserting its dominance in the South China Sea with no qualms about violating the maritime jurisdictions of its neighbors in its quest for minerals and other raw materials its expanded economy needs.

No doubt, the Philippines occupies a strategic place in this major shift in US global defense posture.  Already, the country has proven to be an indispensable element in its global war against terror, with many parts of its archipelago providing  excellent training grounds for its newly-organized highly mobile, quick deployment units under a controversial  Visiting Forces Agreement (VFA).

Since May, a slew of US navy ships have called port in the Philippines, and following President Aquino’s US trip, more are expected to arrive, along with more US troops who will be fielded to the country on a rotation basis, purportedly for training and joint exercises with their Filipino counterparts.

We’ve been dubbed, since the Bush years, as a “major non-NATO ally” and three years ago –in the words of President Obama – as the “coordinator” for the US in the ASEAN region.

But do the Americans match their sweet words to the Philippines with equal deeds to help us develop “credible minimum defense”?

At first glance, it does seem like it: the Philippines is supposedly now the largest benefactor of the Pentagon’s Foreign Military Financing budget, receiving $11 million in 2005, $12 million in 2006,  $13 million in 2007 and $30 million this year.

However, we’re not even on the list of the top ten beneficiaries of US defense assistance three years after 9/11, according to data from the US Center for Public Integrity:  (figures have been rounded-off): Israel (US$9 billion), Egypt (US$6 billion), Pakistan (US$4.6 billion), Jordan (US$2.6 billion), Afghanistan (US$2.6 billion), Colombia (US$2 billion), Turkey (US$1.3 billion), Peru (US$446 million), Bolivia (US$320.6 million) and Poland (US$ 313 million).

The Asian country nearest to us who is on the list is Pakistan. Compared to what Pakistan is getting from the US, our share of foreign military financing is peanuts.

Over the last few years, the US has given more than $ 7 billion to Pakistan in direct assistance – that is, in funds to purchase weapons, supplies and equipment, purportedly to help it fight the Taliban. With all that money, it is a wonder how Osama Bin Laden was able to elude Pakistani intelligence, as he was able to live a comfortable existence in a walled off mansion in Abbottabad for many years right under their noses.

Compare that to American military aid to the Philippines, which comes in the form of financing; that is, no money actually reaches Philippine coffers. Funds are directly paid to American firms contracted by the US government to supply mostly refurbished equipment to the Philippine military, like Vietnam-war era helicopters, trucks and patrol boats. Recently, the US has agreed to hand down to us two decommissioned Coastguard cutter but stripped of most of its armaments. The first delivery, which the Philippine Navy renamed BRP Gregorio Del Pilar, was the same vessel that chanced  upon Chinese fishing vessels poaching mostly endangered marine species at Panatag Shoal.

Philippine Navy top brass, on the eve of President Aquino’s US visit, pleaded with US authorities to deliver to us the second Coastguard cutter without removing its armaments.  But the plea from a major non-NATO ally and coordinator for the ASEAN fell on their deaf ears, even if it only concerns two 40-year old ships that have already seen better days.

So, what credible minimum defense capability for the Philippines is the United States talking about? We’ve gotten a raw deal before and we’re getting more of the same treatment from the Americans, who obviously want to keep us in relationship of dependency so that we will always be at their beck and call.

It is no wonder that despite years of American military aid to the Philippines, our armed forces remains the most poorly-equipped in the Asian region. Barya-barya lang at mga pinaglumaan na ang bigay nila sa atin. After all these years, we’re still being treated by the US as its toady and not as its equal.

On the same week Mr. Panetta announced a “pivot” in US defense policy, CNN broke the news that the US government
has decided to cut aid to a Pakistani version of “Sesame Street” because of charges of corruption. The price tag: US$ 20 million.

The Americans like us very much because they get so much from us for so little in return.

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Filed under China, Scarborough Shoal, UNCLOS, US Pivot, Use of Force

Dean Magallona’s New Baby!

By Romel Regalado Bagares

Yesterday, I stood in for Prof. Harry Roque, who was out of the country, at the launching of a new book by Dean Merlin Magallona at the Malcolm Hall auditorium of the University of the Philippines in Diliman, Quezon City.  This is actually the good Dean’s second book to be launched this year as part of the commemoration of the University of the Philippines College of Law’s Centenary. Dean Magallona’s first book is a critical monograph on the Supreme Court’s decisions on international law questions. The newest is his Dictionary of  Contemporary International Law — a first in Philippine legal publication, I believe.  More on this in the next post.  Prof. Katrina Legarda,  my colleague at the Lyceum Philippines University College of Law  and my former professor at the UP College of Law, gave me a copy of the book.  I’m uploading here a photo of the book, for your visual pleasure.

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Is UN SC Res. 1973 a basis for the US-led use of force re Libya?

By H. Harry L. Roque

The media reported recently that 110 missiles were fired by the United States and its allies against unspecified targets in Libya. These missiles were presumably fired pursuant to United Nations Security Council Resolution 1973 which, among others, gave member-nations of the United Nations a mandate to “to take all necessary measures x x x to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi”; and further, “to take all necessary measures to enforce compliance with the ban on flights”. These measures were enacted by the Security Council pursuant to Chapter 7 of the UN Charter. They are aimed at addressing a “threat to international peace” and are legally enforceable.

Resolution 1973, although an unusual way of enforcing international humanitarian and human rights law, is far from being novel. It has been the technique of the Security Council, commencing with the humanitarian crisis that struck the former Yugoslavia and Rwanda in the mid-1980’s, to characterize gross and systematic violations of human rights as threats to international peace to justify the imposition of sanctions. This includes military sanctions of the type that we are currently witnessing in Libya. But commendable as the practice has been, resort to coercive sanctions even for the most noble of purposes has been legally controversial, if not actually fraught with infirmities.When member-nations of the UN vowed to end wars by making them illegal, it was also their intention that in an effort to promote international peace, the UN itself, in addition to the long established right of states to resort to self-defense, would have a monopoly on the lawful use of force. This was the contemplation behind these provisions under Chapter 7 of the Charter, which has been referred to as “collective security measures”.

Again, intent-wise, the drafters of the Charter envisioned this to be implemented through a UN Force under the collective leadership of the Chiefs of Staff of the 5 permanent member-nations of the United Nations Security Council. The Charter also specified that the UN Force would be manned pursuant to an “agreement” to be entered into by UN member nations. Unfortunately, history would prove that the UN Force—its collective leadership, and the manner it would be manned—would prove elusive. In fact, since the establishment of the UN, there has only been one instance when the UN Force functioned as contemplated. This was during the Korea conflict in the 1950s.

Since then, all resort to collective security measures have been done either through UN “peacekeeping forces” whose existence and composition have not been pursuant to the language of Chapter 7 itself. The legal justification is that these forces were activated pursuant to resolutions which authorized “all necessary means” to compel a state to cease and desist from its breach of an international law norm. Likewise, it has been argued that these forces, albeit not pursuant to the language of the Charter, are nonetheless not prohibited by the Charter, and hence are permissible.

As we witness the continuing military engagement by US and its allied forces in Libya, I cannot help feel a bit uneasy over the fact that military action conducted by individual sovereign states may be conducted coincidentally because of Security Council authorization; but also on the basis of a country’s oftentimes selfish national interest. This is why the drafters of the UN Charter wanted a formation of a UN Force outside the influence of a single country.

Moreover, if it is the case that the literal provisions of the Charter have proven to be unrealistic, there exists a procedure by which the Charter itself may be amended. Unless and until it is in fact amended, the reality remains that while collective security measures are the subject of existing state practice, the fact that it is not in compliance with the language of the charter itself may weaken, rather than strengthen the normative value of the prohibition on the use of force. This, in turn, will cause irreparable injury to world peace.

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