This US Navy handout photograph shows an F-35C Lightning II carrier variant joint strike fighter conducting a touch and go landing aboard the aircraft carrier USS Nimitz on November 3, 2014, in the Pacific Ocean. Photo: AFP / US Navy

On March 2, the US Navy announced that it had recovered from the bottom of the Philippines’ exclusive economic zone (EEZ) the top-of-the-line stealth fighter jet it lost in an accident on January 24. To do so it obviously had to collect information on the area, particularly the nature of the sea floor. This requires permission or the acquiescence of the Philippine government.

However, there has been a deafening silence on this matter emanating from the Philippine government. Moreover, nothing has been heard from presidential and senatorial electoral candidates and nationalist pundits who are usually outspoken supporters of Philippine rights in its maritime jurisdictional zones in the South China Sea, especially vis-à-vis China. 

Would the China critics also turn a blind eye to China’s collection of data in its EEZ in similar circumstances? Their silence in this instance weakens their and the Philippines’ credibility regarding its claims there.

Elections to replace term-limited President Rodrigo Duterte will be held in May. In the rough-and-tumble run-up, government policy on the West Philippine Sea (Manila’s name for the South China Sea) has become a major issue.

For much of his six-year tenure, Duterte was seen as soft on China in regard to Philippine claims there. He declined to prosecute the Philippines’ international arbitration victory over China and instead sought accommodation as well as (some may say in return for) its economic development assistance.

But as it became clear that China’s largesse was going to be less than expected and it became ever more aggressive in its behavior in the disputed area, public pressure mounted to change this policy. Taking advantage of these changing political winds, some leading presidential and senatorial candidates are taking ever stronger positions backing Philippine claims in the South China Sea.

The leading presidential candidate, Ferdinand “Bongbong” Marcos Jr, has so far demurred on the issue but is thought to lean toward continuing Duterte’s policy of accommodation. His rivals see that as a political vulnerability and have taken tough stances backing Philippine rights there and their enforcement.

Vice-President Leni Robredo said China would have to recognize the 2016 arbitration ruling affirming Philippine EEZ rights. Former boxing champion and now Senator Manny Pacquiao declared “we should fight for our rights and we should not allow ourselves to be bullied.” Senatorial candidate Richard Gordon said the Philippines must assert its sovereignty in the West Philippine Sea.

However, even with this rising tide of opportunistic nationalism regarding the West Philippine Sea, the government and the candidates are blithely ignoring possible US violations of Philippine rights there.

The F-35C was recovered from 3,780 meters by a team from the US Seventh Fleet Combined Task Force (CTF) and the Naval Sea Systems Command using the diving support vessel Picasso, owned by a Singapore company but ironically built in China.

Among CTF’s responsibilities is the planning and execution of maritime security operations and support for expeditionary intelligence collection throughout the Indo-Pacific region. In other words it can and does collect intelligence for use in wartime – in this case in the Philippines EEZ.

To retrieve the aircraft, the US Navy had to locate it by remote sensing, use a remotely operated vehicle (ROV) to attach cables to it and then raise it to the surface. The ROV is equipped with sophisticated sonar and digital and TV cameras.  

Indeed, all these tasks required the use of advanced technological instruments in the Philippines EEZ. Under the UN Convention on the Law of the Sea (UNCLOS) that – unlike China and the Philippines, the US has not ratified  but claims to abide by – “marine scientific research” can only be undertaken in a country’s EEZ with its permission. 

The US tries to differentiate between marine scientific and military surveys, arguing that the latter do not require permission. But UNCLOS Article 258 stipulates that “the deployment and use of any type of scientific research equipment in any area of the marine environment shall be subject to the same conditions as are prescribed in this Convention for the conduct of marine scientific research in any such area” – that is the consent regime. 

The US Navy used “scientific research equipment” in the Philippines EEZ. As a non-party, the US has little credibility in interpreting the treaty to its benefit.

The Philippine government is well aware of the consent regime regarding such activities. In December 2016 when China retrieved a US drone in the Philippines’ EEZ, Harry Roque (then soon to be presidential spokesperson and now a senatorial candidate) urged the Philippines to protest the actions of both the US and China in its EEZ. 

Philippine Secretary of Defense Delfin Lorenzana said their presence was “unauthorized” and that “we have to know what they are doing in our area.” He said both must seek Manila’s permission for activities inside its EEZ. 

Moreover, foreign vessels exercising their rights in a country’s EEZ must have “due regard” for the rights and duties of the coastal state as well as for the interests of other states exercising their high-seas freedoms. They must not present a hazard to navigation by others. Yet Japan declared a navigational warning to mariners regarding a US salvage operation in the area of the Philippine EEZ where the jet was lost.

As a leading critic of Duterte’s China policy, former Supreme Court justice Antonio Carpio, points out, the Philippine constitution demands that the state “shall protect its marine wealth in the exclusive economic zone and reserve its use and enjoyment to the Filipinos.” He maintains that means the president must protect the country’s EEZ. If so, what is good for the goose (China) should be good for the gander (the US). 

If the Philippine government gave permission for the US operation in its EEZ, it should say so and explain why. Meanwhile the Philippine government and the leading presidential and senatorial candidates should break their silence lest it be construed as agreement with the US position or acquiescence to such violations of Philippine rights. Saying nothing emboldens others to do the same – including China. 

Mark Valencia

Mark J Valencia is an internationally recognized maritime policy analyst, political commentator and consultant focused on Asia. Most recently he was a visiting senior scholar at China’s National Institute for South China Sea Studies and continues to be an adjunct senior scholar with the Institute. Valencia has published some 15 books and more than 100 peer-reviewed journal articles.