Asian Century Journal

An Asian Century Philippines Publication

Updating Our Baselines Is Priority Not Senate Empty WPS Legislation

 

By Ado Paglinawan

Without the nine-dash, the separate exclusive economic zones of China (blue), the Philippines (orange) and Vietnam (green) are theoretically outlined.  With the nine-dash line, both the EEZs of Vietnam and the Philippines conflicts with it. This article tackles how China’s claims for sovereignty can exist vis-a-vis sovereign rights claims by the Philippines and Vietnam.
 

The public relations machine is on the roadshow again, this time with Senator Francis Tolentino formalizing the nomenclature “West Philippine Sea” (WPS) into a law through Senate Bill 405.

The WPS is a feeble creation of the village idiot BS Aquino III as his Administrative Order No. 29 in 2012, providing only clutter for information warfare deodorizing the P1 billion Permanent Court of Arbitration case against China in 2012, concocted by Albert del Rosario, his pro-American secretary of foreign affairs.

This was after we lost Scarborough Shoals to China over a faux pas of Jose Cuisia, his ambassador to the US, who purportedly negotiated with the Chinese Ministry of Foreign Affairs through US State Department in Washington DC for a simultaneous withdrawal of ships.

Aquino pulled out our gray ship BRP Gregorio del Pilar from Scarborough but the Chinese did not withdraw their white ships – two coast guard vessels. China disavowed any agreements and has since gained control of the area.

Now foreign affairs spokesperson Ma. Teresita Daza sings “hallelluyah” to the proposal saying her department recognizes what the legislation can do in terms of clarity to institutionalize the air space, seabed, and subsoil on the western side of the Philippine archipelago.

I am sorry but this lady does not know what she is talking about. Our claims to “air space, seabed, and subsoil” is limited to our claims in the Kalayaan Island Group which is only the part of this WPS that is based on sovereignty, not the rest of the WPS which is based on sovereignty rights.

Ms. Daza mentions clarity, but obviously she does not know the difference between sovereignty and sovereignty rights which are at play here.

Alas, the proposed legislation is already creating more confusion. EEZ and sovereignty rights only involve everything underwater as the surface of the sea are international waters, and above it is international air space.

It is also not clear whether Daza has the blessing of Secretary Enrique Manalo and President Bongbong Marcos but it reeks of drum beating for which Philippine Ambassador to the United States Babes Romualdez is known for especially when he was the public relations handler of the American Embassy in Manila.

Romualdez is an American boy.

The so-called West Philippine Seas, which extends from the lateral side of Palawan all the way from our boundary with Malaysia down south to our boundary with Taiwan up north, even just as a nomenclature serves only propaganda purposes which may not even favor our diplomacy with but fuel the US information war and lawfare against China. This is also for no good reason that will merit an adverse Vietnamese and Malaysian response.

Columnist Rod Kapunan reminds us that all we have in this part of the globe is our 12 nautical mile territorial waters delimited by the Americans themselves in their Treaty of Paris of 1898 with Spain.

While we lust at a 200-mile economic zone west of the Philippines, it is tenuous and insubstantial whether our so-called economic zone suggested by the United Nations Convention on the Laws of the Seas can hold against the Peoples Republic of China’s territorial claims on the South China Seas on the basis of historical and legal rights.

UNCLOS cannot be greater than customary international law. In fact, in its very charter, UNCLOS precludes having anything to with sovereignty.

The eleven-dash line that the defunct Republic of China of Chiang Kaishek and the Kuomintang Party delimited in 1935 in a map titled “Map of Chinese Islands in the South China Sea” and which in 1949 it reduced to nine-dash line after dropping its claim on the Gulf of Tonkin, only shows the extent and scope of that claim.

EEZ and sovereign rights do not protrude onto sovereign territories of another country because sovereignty is not porous. This is where our problem with China begins in the South China Seas. The so-called “West Philippine Sea” cannot be part of the South China Sea, even if it were only for nomenclature purposes.

Thus, WPS is a provocation based on nothing but our imagination. (Besides, EEZs are not automatically bestowed and have to be granted by the UN, after being applied for, defended in hearings, and officially awarded just as how the United Nations Commission on the Limits of the Continental Shelf not only gave us 200 nautical miles of EEZ over Benham Rise after confirming another 150 nautical miles of extended continental shelf east of the Philippines.)

Without diplomacy, we shall forever have a problem because China can enforce their sovereignty over the disputed waters, and we cannot. The only thing we can do is build a library of protests. On the other hand, we can build an even better bilateral relations with China based not on words, but substantive matters such as formal agreements on joint exploration and mutual protection.

The Aquino administration foolishly believed that the PCA ruling in July 2012 overruled the validity of the nine-dash line. Read my lips – How can it do that when UNCLOS that serves as the basis of that ruling has nothing to do with sovereignty issues? My God, the nine-dash line is a delimitation based on sovereignty!

The Philippines’ legalistic case, however, was thus inherently flawed and illegitimated by such irregularities as the country’s abuse of the dispute settlement procedures, its distortion of concepts, and its deliberate disguise of the real nature of the disputes.

To the point of redundancy, bellyaching about the nine-dash line only advances the propaganda of the United States over its unilateral rules-based doctrine of freedom of navigation (FON), it has no benefit whatsoever on Philippine interests. What pushes us to an advantage is in fact, collaborating with China on the areas our claimed EEZ overlaps with their nine-dash line that outlines their enforced sovereign territorial waters.

China has made this seeming paradox, not mutually exclusive.

The Chinese flexibility is not based on whim but principle. One of the four pillars of China’s foreign policy is embodied Lao Tze’s teaching in Tao Te Ching – “…the larger stream does not strive to be dominant, the smaller stream and larger rivers and seas work together.” That is to say – Big power needs to win the trust of a smaller state…fostering an amicable, secure and prosperous neighborhood.  

The reason why China neither participated in the PCA nor recognized its award is that it doesn’t want to box itself inside legalisms.

No less than veteran diplomat Ambassador Rosario Manalo has clarified that China, as a sovereign state, is entitled to choose its preferred means of dispute resolution — a legitimate right under international law. It has upon signing of UNCLOS and sometime after, made legal declarations within the UNCLOS provisions excluding itself from any form of compulsory arbitration.

What is­­­ incongruent here, in truth attested by Manalo, is that­­­­­­­­­­ ­­­­­­­­­­­Philippines also separately opted out of compulsory arbitration, on our own.

In those declarations, both countries chose bilateral negotiations in solving disputes. And wasn’t this same mode of settlement of conflicts we etched with the Chinese in the Joint Communique we had in establishing formal relations in 1975?

Over the past seventy years, China’s rightful claim has been contested by many groups, but no matter what other parties believe, this region has always been and always will be under China’s jurisdiction. The compulsion comes from the South China Seas exposure to what it calls the mainland’s soft belly that has been the entry point of about 475 invasions by foreign powers in its history.

Today, the Chinese exercises control of the space and has the absolute wherewithal to enforce its will over the territory.

US castrating the Treaty of San Francisco

Research will prove that it is only the unmitigated greed of the United States that is to blame for this confusing situation in the South China Seas, because it has always been the greedy that lords and thrives over confusions.

Countries coming to participate in the formulation of the Treaty of San Francisco of 1951 hoped that the convention will quiet down territories occupied by Japan during the last World War, especially those belonging to China.

But the Americans, taking advantage of the reality of two Chinas at that time, one that has taken control of the mainland and another that holed itself inside the island of Formosa (Taiwan), used the convention instead to create a United States security lake covering the Pacific Ocean.

That lake placed under the control of the Americans the entire Pacific Ocean, starting with Alaska to the north, its mainland in the east, Hawaii and Guam on the southeast, the Philippines on the south, and the combination of Japan, South Korea and Taiwan on the west.

This left unresolved not just the South China Seas, but islands disputed by China and Japan to this day and age, such as the Senkaku (Diaoyu) Islands near Okinawa – an ambiguity the US utilizes to its fullest advantage.

A single country as China controlling the South China Seas, sends sleepless nights to the once sole superpower America, added to the fact that 3.4 trillion dollars of international trade passed through the South China Sea in 2016 alone.

In a paper by Leszek Buszynski, published by the Institute for Regional Security, he said “the United States cannot accept Chinese control of the South China Seas, since it would undermine its position in the Western Pacific.”

“It has responded to the Chinese dominance by rebalancing its forces in the Asia-Pacific region, and strengthening security relations with claimants such as the Philippines and Vietnam.”

Buszynski added: “As the South China Sea dispute becomes integrated into the field of US-Sino rivalry, ASEAN assumes a subordinate role and comes under increasing pressure to take sides…the proposals it fostered to resolve the dispute such as the Code of Conduct, though promising, are (however) sidelined.

 

Positioning amid disputed waters

This is why motions like fortifying divisive tactics like the nomenclature “West Philippine Seas” serves no purpose but be a bullet for provocation aimed at China.

It is also not true that under international law, legislation is an act of sovereignty that establishes territorial title as the Tolentino bill asserts because it must be first and foremost enforceable. Otherwise, it becomes a paper tiger.

What the Philippine legislators should be having as a priority is amend Republic Act 9522, the current baselines law, to specifically name and identify the maritime features on the western side of the Philippine archipelago, according to retired Supreme Court Justice Francis Jardeleza.

This will include the Luzon Sea as well as the Kalayaan Island Group and Bajo de Masinloc, also known as Scarborough Shoal, including at least 100 maritime features in the West Philippine Sea. Of these features, 35 are said to be rocks or high tide features that generate a territorial sea and a contiguous zone.

The enactment of the new baselines law will show our country’s diplomats where to start negotiations and measure bottom lines based on sovereignty or sovereign rights, and guide our maritime law enforcers against the intrusion of uncommon foreign vessels, giving them the specific “meets and bounds” of the extent of the country’s claims in the contested area.

With one of the most important pieces of legislation that Congressman Bongbong Marcos was a part of in 2009 which is the Philippine Archipelagic Baselines Law (R.A. 9522), which defines what constitutes the Philippine territorial sea, I am sure the new President will understand why an update is of utmost and urgent priority.

There is no doubt China, Vietnam, and maybe even Malaysia, will protest this baseline legislation. But what is important is that we are transparent with the Chinese, the Vietnamese and the Malaysians, for them to know that we are not biting more than the exact delimitations we will defend and stand when dealing with them diplomatically.

 

<strong>Adolfo Quizon Paglinawan</strong>
Adolfo Quizon Paglinawan

is the anchor of Ang Maestro – the Unfinished Revolution at Radyo Pilipinas1, co-host of Opinyon Ngayon at Golden Nation Network Television, a political analyst, and author of books.

His third book, The Poverty of Power will soon be off-the-press. It is a historiography of controversial issues of spanning 36 years leading to the Demise of the Edsa Revolution and the Rise of the Philippine Phoenix.
Paglinawan’s past best sellers have been A Problem for Every Solution (2015), a characterization of factors affecting Philippine-China relations, and No Vaccine for a Virus called Racism (2020) a survey of international news attempting to tracing its origins.

These important achievements earned for him to be named one of the 2021 international laureates for the Awards for the Promotion of Philippine-China Understanding.

Ado, as he called for short, was a former press attaché and spokesman of the Philippine Embassy in Washington DC and the Philippines’ Permanent Mission to the United Nations in New York.

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