Lost in the definition of "armed attack" and "aggression"

International law is not a playground for dilettantes. It is a complex, contested field, shaped by history, politics, and jurisprudence.

International law is not a playground for dilettantes. It is a complex, contested field, shaped by history, politics, and jurisprudence. If Tarriela and his WPS-cult ilk dislike my legal interpretations, they are welcome to refute them—if they can. But they cannot, because they lack the depth to untease complexity. If you are arguing from the point of view of your feelings, you are just hysterical. If you are going to dismiss other’s arguments as just “pro-China,” you are intellectually lazy. The terms “armed attack” or “aggression” have long standing definition in international relations and law. It has a historical meaning and jurisprudence. If you are going to define it according to your sentiments, you are arguing from the point-of-view of ignorance.

Let’s now untease the problem of ignorance besetting Filipinos who are being exploited by the powers-that-be because of their lack of familiarity with international law.

We begin from the Second Thomas Shaol (Ayungin Shoal) incident in June 2024. Philippine authorities were at a lost on how to make sense of the confrontation between the Chinese Coast guards and Philippine Navy. Is it an armed attack? Is it “piracy” as General Romeo Brawner Jr. said? Definitions matter. Your sentiments on social media aren’t good starting points. A deeper understanding of international law and practice in activating defense treaties are important.

The interesting angle of General Romeo Brawner Jr, characterising the incident as “piracy.” On its face, this is a smart political move. States have universally considered “pirates” as “hostis humanis generis” (enemy of mankind). As a political move, General Brawner’s characterisation of the incident as piracy has the intention of characterising the Chinese Coast Guards as pirates, he intends to portray them as enemies of mankind. Smart tactic, but it will not fly.

UNCLOS has an exact definition of piracy. Article 101(a) provides the essential condition when any violence or detention or acts of depredation are considered piracy: “committed for private ends by the crew or the passengers of a private ship or a private aircraft…” This means the actor must be a private one and the acts are for private ends. For General Brawner’s statement to fly, he needs to convince that the Chinese Coast Guards are acting in private capacity and that what they did are for private ends.

Furthermore, Article 101(a)(ii) is very detrimental to the Philippine position. Piracy must be directed “against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.” By characterising the incident as “piracy” is General Brawner effectively saying that the place of the commission of the alleged piracy of the Chinese Coast Guard took place outside the jurisdiction of any state, which implies outside the jurisdiction of the Philippines?

General Brawner Jr should be careful as his statements have possible injurious effects on the position of the Philippines. If he wants to pursue his “piracy” angle, he needs to argue that the incident took place outside the jurisdiction of the Philippines, and in the high seas.

Now, onto the activating the Mutual Defense Treaty between the U.S. and the Philippines because of this incident. The gold standard on understanding when a defense treaty can be activated for collective defense is the 1949 North Atlantic Treaty This is the treaty that established NATO.

Why is it the gold standard? It is because of the wording of how the treaty allies see an "armed attack" against any of them.

In the North Atlantic Treaty, this can be found in Article 5:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

In the 1951 Mutual Defense Treaty between the Philippines and the United States, this is stated in Article IV:

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.

Just a clarification: Pacific Area is defined there to include South China Sea because that’s part of the Pacific Theatre command of the United States.

In NATO, the word has a semblance of “automaticity,” i.e. of being automatic. It is more imperative, as evidenced by the use of “shall” before the phrase “considered an attack against them all.”

The wording of the 1951 PH-US MDT is very weak: “recognizes…that an armed attack in the Pacific Area…would be dangerous to its own peace and safety…” The word “declares” has been used to introduce the activation of any action. All these words do not bear the same mutual defense imperatives of NATO.

Anyone who has knowledge of statutory construction should know the difference between what is declaratory and obligatory.

Now, even though NATO is the gold standard of mutual defense treaties, Article V has only been invoked once: after September 11, 2001. And only after all the NATO members agreed on the actions the could be taken.

The PH-US MDT has never been invoked.

Now comes the meat: What constitutes an “armed attack”?

The International Court of Justice (ICJ) decision on Nicaragua vs. United States of America (1986) is instructive.

The relevant paragraphs are: Paragraph 191, 195, and 231.

Paragraph 191:

In Paragraph 191 provides the boundary condition of an armed attack. Armed attacks are constituted by “the most grave forms of the use of force.” These are different from “other less grave forms.”

Paragraph 195 further provides illumination.

These bears emphasizing

…an armed attack must be understood as including not merely action by regular armed forces across an international border, but also ‘the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to’ (inter alia) an actual armed attack conducted by regular forces, ‘or its substantial involvement therein…

Further,

…in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces.

Lastly, Paragraph 231:

What is relevant in Paragraph 231 is the importance of understanding the “the circumstances of these incursions or their possible motivations” in order to decide for for legal purposes” whether such action constitute an "armed attack."

From these, one can now have the following necessary conditions for something to be considered an armed attack:

1. Place: Action by regular armed forces across an international border. The armed forces must be sent into the territory of another State.

2. Actors: Can be regular armed forces or non-state actors

3. Boundary condition of attacks: Must be the most grave use of force and not just mere frontier incident.

4. Circumstance and motivations: This provides the context in determining whether an action is an armed attack.

The Second Thomas Shoal (Ayungin Shoal) is not internationally recognised as part of the territory of the Philippines. As far as the international community is concerned, as well as the United States, that area is disputed between the Philippines, China (both Beijing and Taipei have the same claim), and Viet Nam. Furthermore, the incident has not passed the threshold of “mere frontier incident” to be considered as an “armed attack.”

Now comes the meat: What constitutes an “aggression”?

Article 1 of General Assembly resolution 3314 (XXIX) provides a general definition:

Article 2 and 3 expounds what are aggressive acts:

Article 4 provides a caveat that these are not exhaustive but can be further expanded by the UN Security Council.

From this one can have the following necessary condition for something be considered an aggression:

1. There must be a use of armed force
2. The use of armed force is against the sovereignty, territorial integrity, or political independence of another State or in any other manner inconsistent with the Charter of the United Nations
3. First use of aggression is the prima facie evidence of an act of aggression
4. Article 3 provides the instances of aggression.

As these acts of aggression include “armed attack,” those instances will have to be evaluated in light of what I mentioned earlier, which are:

1. Place: Action by regular armed forces across an international border. The armed forces must be sent into the territory of another State.

2. Actors: Can be regular armed forces or non-state actors

3. Boundary condition of attacks: Must be the most grave use of force and not just mere frontier incident.

4. Circumstance and motivations: This provides the context in determining whether an action is an armed attack.

In all these instances, territory is considered as the CONTEXT, except in relation to land, air, sea forces which may not be in the territory of the victim State.

The Exclusive Economic Zone (EEZ) is NOT territory. This is a FACT. A fact that that humiliatingly pointed out to former DFA Secretary Alberto del Rosario, ex-Ombudsman Conchita Carpio-Morales, and former Supreme Court Justice Antonio Carpio when they sent a communication to the International Criminal Court (ICC) in 2019. They were armed with a grand accusation: Chinese officials should face charges of “crimes against humanity.” Their case? A litany of grievances in the South China Sea:

- Blocking Filipino fishermen from their ancestral waters at Scarborough Shoal, stripping them of their livelihood.

- Ravaging the Spratly Islands with illegal reclamation and artificial island-building, leaving marine ecosystems in ruins.

- Backing destructive fishing by Chinese nationals, turning a blind eye to environmental carnage.

China isn’t even an ICC member, but here’s the twist: the ICC can claim jurisdiction over non-members if the alleged crimes—under the Rome Statute—happen within a member state’s territory. Carpio, Del Rosario and Carpio-Morales seized on this, arguing that these acts unfolded in the Philippines’ exclusive economic zone (EEZ) and continental shelf—Scarborough Shoal and the Kalayaan Island Group included—back when the Philippines was still an ICC party.

Their big question for the ICC Prosecutor: Does a state’s EEZ count as its “territory” under Article 12(2)(a) of the Rome Statute—and in international law?

Anyone with a shred of international law knowledge could’ve seen the answer coming a mile away. But it seems Carpio, del Rosario and Carpio-Morales were banking on passion, not precedent—hoping Filipino sentiment might rewrite the rules.

Cue the ICC Prosecutor, stepping in like a professor schooling overeager freshmen. Here’s the brutal takedown:

1. Territory 101: The Rome Statute doesn’t define “territory,” but it’s clear—it’s where a state holds sovereignty. That’s the land, internal waters, territorial sea, and the airspace above. Full stop. That’s the global standard under international law.

2. EEZ? Not Even Close: Maritime zones like the EEZ and continental shelf? They’re not territory. Sovereignty means exclusive, top-to-bottom control. Beyond the territorial sea, coastal states get only “sovereign rights”—limited powers, not the whole deal. The Island of Palmas case nailed it: sovereignty is about supreme authority over a patch of the planet. EEZs don’t qualify.

3. Sovereignty vs. Rights: The law of the sea draws a hard line. Sovereignty covers internal waters and the territorial sea—where a state rules supreme. Beyond that? You’re in “international waters,” where coastal states get specific perks under UNCLOS—like resource rights in the EEZ or continental shelf—but nothing close to full control. No amount of wishful thinking changes that.

The result? A masterclass in legal reality, delivered cold on pages 14-16 of the ICC Prosecutor’s report. Del Rosario and Carpio-Morales walked in with a dream; they left with reality check.

The United States knows this FACT…but

They don’t want to vocalize this because they have been enjoying how Filipinos are being led blind their CORRUPT leaders.

In an elucidating judicial decision on the issue is the 1988 𝑲𝒐𝒓𝒖 𝑵𝒐𝒓𝒕𝒉 𝑨𝒎𝒆𝒓𝒊𝒄𝒂 𝒗. 𝑼𝒏𝒊𝒕𝒆𝒅 𝑺𝒕𝒂𝒕𝒆𝒔 at the United States Court of International Trade.

One of the key issues 𝑲𝒐𝒓𝒖 𝑵𝒐𝒓𝒕𝒉 𝑨𝒎𝒆𝒓𝒊𝒄𝒂 𝒗. 𝑼𝒏𝒊𝒕𝒆𝒅 𝑺𝒕𝒂𝒕𝒆𝒔 touched on is whether fish within a country's EEZ is the natural resource of that country.

The decision is clear: "No."

This is because under UNCLOS,

a State is not provided with absolute sovereignty over the living natural resources within an EEZ. The State is only provided with 'sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources. . . .' 'Sovereign rights' are not the equivalent of "sovereignty." The State, therefore, possesses nothing more than a preferential fishing zone within its EEZ, which has been recognized as: not compatible with the exclusion of all fishing activities of other States. A coastal State entitled to preferential rights is not free, unilaterally and according to its own uncontrolled discretion, to determine the extent of those rights. The characterization of the coastal State's rights as preferential implies a certain priority, but cannot imply the extinction of the concurrent rights of other States. . . .

The EEZ cannot be equated with the territorial sea because "such a conclusion would be clearly improper, as certain elements of the high seas are retained in an EEZ."

Within its territorial sea, "a State is free to prohibit fishing by foreigners, monopolize the fishing resources and the exploitation thereof, and fully control those waters."

However, within an EEZ,

the State retains control of the fishing resources only for the purpose of optimum utilization and to prevent the unnecessary exhaustion of resources. In this regard, although the State retains the exclusive right to determine the amount of allowable catch, it is obligated to allocate the surplus among the other States. Consequently, it would be improper to characterize fish caught within a country's EEZ as originating from that country on the basis of their being caught within the EEZ.

Furthermore, the United States is against an expansive definition of EEZ that treats it akin to “territory.” Tufts University provides the following restrictions in the EEZ that the United States consider UNLAWFUL.

Reporting requirement under international law on “aggression” and “armed attack”

Under international law, it is the UN Security Council that determines the existence of any threat to the peace, breach of the peace, or act of aggression. This is clearly stated in Article 39 of the UN Charter.

In the presence of an armed attack or aggression, a State does have a right to self-defense, as provided by Article 51. However, Article 51 has a reporting requirement: “Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

One just have to ask, why Philippine authorities have not done this? Why hasn’t the Philippines nor even the United States raised whatever is happening in the South China Sea in the UN Security Council or even in the UN General Assembly, just like what other States have done in the past who actually faced ACTUAL AND REAL armed attack and acts of aggression from another state? Haven’t they been convincing the Filipino public that an “act of aggression” or even “armed attack” or “invasion” has already occurred? I have an answer why they haven’t done it. It is because the context is an actual territorial dispute.

If you read carefully, the Mutual Defense Treaty of the Philippines, you should already know that the position of the Philippines is very weak. It does not bear the most important term that the Philippines needs: “territorial integrity.” However, the United States will not consider the incident as compromising the territorial integrity of the Philippines because the so-called WPS is not internationally recognised as part of the territory of the Philippines because it is EEZ!

The South China Sea Arbitration decision did not invalidate territorial claims of China

This is a FACT that is being hidden by manipulative idiots. I have written about this in my previous article Rage Against the National Lobotomy of Filipinos. But let me repeat this part.

First, the arbitration decision is not about territorial sovereignty.

Second, the decision dealt with the nine-dash line as the basis of the maritime claim of China and not the status of Second Thomas Shoal within the Nansha Qundao (Spratly Island Group), which China (both Beijing and Taipei position) claims to be where that shoal belongs. The 2016 South China Sea Arbitration decision just declared it as within the EEZ and continental shelf of the Philippines, which is a simple geographical determination. BUT the decision has not dealt with whether it is part of China’s Nansha Qundao or Vietnam’s Trường Sa, or the Philippines’ Kalayaan Island Group.

The Philippines devolved its claim from “territorial sovereignty” to just “sovereign rights.” The Philippine claim is less than the claim of Vietnam and China. Until the territorial sovereignty claim has been resolved, the “sovereign rights” claim of the Philippines cannot be effectively enforced because there is an outstanding territorial sovereignty claim based on China’s Nansha and Vietnam's Truong Sa claims.

Paragraph 272 of the 2016 South China Sea Arbitration (Award) is a sobering caveat on the issue of territorial sovereignty and whether the decision can be used to say that China has no valid sovereignty claim:

Again, to belabour the point, the 2016 South China Arbitration decision has not ruled over the status of China’s Nansha Qundao. The most possible reason why it did not is it will implicate issues of territorial sovereignty, which is outside the jurisdiction of the tribunal.

Furthermore, Professor Sands, one of the lawyers of the Philippines, made a manifestation during the South China Sea arbitration proceedings that the claims of the Philippines are “made entirely without prejudice to China’s territorial assertions, or indeed the territorial assertions of any other state.” This can be found in Sentences 17-21, Page 98 of Transcript Day 1 on Hearing on Jurisdiction and Admissibility on 7 July 2015.

This is further emphasised in Paragraph 153 of Award on Jurisdiction and Admissibility (20 October 2015): "The Philippines has not asked the Tribunal to rule on sovereignty and, indeed, has expressly and repeatedly requested that the Tribunal refrain from so doing.” And the Tribunal emphasised that the arbitration decision does not aim to “advance nor detracts from either Party’s claim to land sovereignty in the South China Sea.”

"The land dominates the sea" or the principle of land-based maritime jurisdiction is a foundational concept in international maritime law, particularly under the United Nations Convention on the Law of the Sea (UNCLOS). Even if you don’t accept the nine-dash line, China can still claim maritime entitlement from LAND FEATURES of its claimed LAND territories. However, this is a matter that is still disputed because sovereignty over the land features in the South China Sea are still contested among China (both Beijing and Taipei), Vietnam, the Philippines, and to some extent Malaysia. And all those claimants have the right to actually assert their claims.

So how will this actually end up? You choose: joint development or actual war to finally decide who can have exclusive claim over those features.

Now who is actually spreading disinformation and ignorance to the Filipino public?

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