The Philippines will serve a challenge before an international tribunal should China push through its “illegitimate” policy on detaining foreign nationals, particularly Filipinos, for “trespassing” in the West Philippine Sea (WPS), several senators said Sunday.

Senator Risa Hontiveros said China’s new policy on detaining foreigners deemed “illegally crossing” its borders without trial, only affirms its “emerging reputation as a rogue nation.”

“Should Beijing dare push through with this illegitimate regulation, the Philippines’ hand may be forced to sue them again in the Hague Tribunal,” Hontiveros said.

The Chinese government earlier issued a directive, granting its China Coast Guard (CCG) the authority to detain “for 60 days without trial” foreigners it suspects of “trespassing” in the SCS border, including the disputed West Philippine Sea — which it claims to be its territorial waters.

The order becomes effective on 15 June. China said the new edict standardizes its law enforcement procedures. It was rolled out by the CCG as its house regulations on 15 May, the same day that the Atin Ito civilian group-led supply mission was launched to Bajo de Masinloc (Panatag or Scarborough Shoal) in the West Philippine Sea.

Touching a raw nerve

Hontiveros said the civilian mission, which she described as a “rightful and peaceful show of solidarity” had “clearly hit a nerve for China.”

“But instead of responding like a dignified country, she resorted to this tyrannical tactic that will only escalate tensions even further,” she added.

Reiterating the advice of former Supreme Court Senior Associate Justice Antonio Carpio, Hontiveros said the Philippine government must now urge allies such as the US, Japan, Australia, France, and other like-minded nations “to oppose this flagrant violation of international law by joining our patrols within our Exclusive Economic Zone.”

“China better abrogate this shameless policy. China better stop inciting violence in our waters. China better leave the West Philippine Sea alone,” she stressed.

Senator Francis Tolentino emphasized that there were existing provisions in the United Nations Convention on the Law of the Sea (UNCLOS), stating that China’s plan to detain foreign nationals could violate international maritime laws.

“If that happens, if they dare, there are provisions in UNCLOS, particularly Article 73, that clearly states that the coastal state can impose penalties for violation of fisheries laws and regulations in the exclusive economic zone, and may not include imprisonment,” he said in a radio interview on Sunday.

Tolentino noted the Philippines may also file a case before the International Tribunal for the Law of the Sea (ITLOS).

“It’s clear in the UNCLOS that what China is doing is wrong. So, this is subject to another case. We can file another case with China before the ITLOS,” he said.

The Philippines previously sued China before the Permanent Court of Arbitration in The Hague in 2013, over the country’s claims in the WPs.

In July 2016, the Court ruled in favor of the Philippines and rejected China’s nine-dash claim, covering almost the entire South China Sea.

The Chinese government, however, refuses to recognize the Court’s ruling.

On Saturday, President Ferdinand “Bongbong” Marcos Jr. said China’s new trespassing policy is a “kind of action that would be completely unacceptable to the Philippines.”

“The position that we take is that it is unacceptable, and we will take whatever measures to always protect our citizens,” Marcos said.

Probe eyes China envoy

The government seeks to turn the table on China as a probe will be held on the alleged wire-tapping of a supposed “new model” arrangement between

a Chinese embassy official and Vice Admiral Alberto Carlos.

Senator Francis Tolentino said, in a radio interview, the Senate sent a “polite invitation” instead of a subpoena, to the Chinese Ambassador to the Philippines and the Consul General of China.

President Ferdinand “Bongbong” Marcos Jr. himself vowed an investigation.

“We are looking into it because the fact of the matter is there have been mentions of a tape to (try to confirm) confirms that there was this agreement (between China and the Philippines),” Marcos said in a media interview Saturday night.

Marcos said it is still early for a conclusion until he hears for himself the contents of the alleged intercepted conversation.

“It’s in the possession of the Chinese Embassy and the Chinese government. So, until they release it, it’s harder to believe and to accept that there was an agreement (for a new model),” he said.

The President added that the Department of Information and Communications Technology and the Department of Science and Technology are working in tandem to make the country’s cybersecurity more robust and secure.

He said they are already planning to bring in Filipino experts, who are among the world’s best, to work for the government as “free agents” to help bolster the country’s cybersecurity.

“Some of the best people in cybersecurity are Filipino but they are civilians so we have to bring some of them,” Marcos said.

“I don’t know if we can find an arrangement for them to work for the military, to work for government agencies. Maybe as a free agent? We’ll see,” he added.

Diplomatic immunity

Tolentino noted that the Chinese Embassy in Manila cannot be compelled to attend the Senate investigation due to the existing diplomatic protocols and international law. 

“The diplomat has an immunity in terms of the normal operation of their embassy but there is no immunity for breaking our law,” he said.

However, Tolentino said the country may file a case against diplomats “if they are found violating the laws of the host country.”

The diplomats can also be charged, face expulsion, and declared persona non-grata in the country, he noted.  

There can also be a reduction in the size of the embassy personnel and non-renewal of the visa of the administrative personnel, he added. 

Tolentino earlier filed Senate Resolution 1023, calling the committee on national defense to investigate the alleged wire-tapping of a phone conversation in January 2024 between Carlos — the chief of Armed Forces of the Philippines’ Western Command at that time — and an unnamed Chinese diplomat, in which the embassy said a new model agreement was forged.

He said the content of the alleged conversation is irrelevant to the inquiry. 

“The content would be extraneous to the investigation because what we want to prove here is that if the wire-tapping happened, then, what would be the consequences?” he stressed.