Historiography debunks fake arbitration: China Is Nine-Dash Line Successor-in-Interest

By Adolfo Quizon Paglinawan

Part Two: Stoking the Mythical West Philippine Seas

Isn’t it glaring that the only reference central to the lawfare and information war of the United States against China “not having” any legal basis for its nine-dash line is the 2016 ruling of the arbitral proceedings that the Philippines registered with the Permanent Court of Arbitration?

In Part One of this Series, I have already debunked the credibility and authority of said mock arbitration. https://asiancenturyph.com/2023/05/08/bongbong-may-be-sleepwalking-over-contentious-waters-to-spark-war/

But why is demolishing China’s nine-dash line of significant importance? The simple answer is that demarcation depicts China’s claims of sovereignty that the whole of the South China Sea is its territorial waters.

Philippine jukebox scholars and American geopolitical karaokists took its ruling at face value that the nine-dash line claim of China has “no legal basis”, deliberately ignoring that sovereignty and delimitation are beyond the ambit of UNCLOS.

What is crystal clear, however, is in the second paragraph of the official press release of the Permanent Court of Arbitration at The Hague on July 12. 2016:

“This arbitration concerned the role of historic rights and the source of maritime entitlements in the South China Sea, the status of certain maritime features and the maritime entitlements they are capable of generating, and the lawfulness of certain actions by China that were alleged by the Philippines to violate the Convention. In light of limitations on compulsory dispute settlement under the Convention, the Tribunal has emphasized that it does not rule on any question of sovereignty over land territory and does not delimit any boundary between the Parties.” https://docs.pca-cpa.org/2016/07/PH-CN-20160712-Press-Release-No-11-English.pdf

Yet, in its sixth paragraph, the PCA nevertheless abused its own caveat and contradicted itself – “Accordingly, the Tribunal concluded that, to the extent China had historic rights to resources in the waters of the South China Sea, such rights were extinguished to the extent they were incompatible with the exclusive economic zones provided for in the Convention.”

How can the tribunal extinguish something which by its own admission, two paragraphs earlier, is not within jurisdiction of the Convention (UNCLOS)? Sovereign rights on exclusive economic zones are delimitations based on extensions of states’ sovereignty and territorial seas!

Historiography

That notwithstanding, one does not have to go back by a millennium to find solutions beyond legalese but in history. Let us scrutinize where China is coming from.

On April 17, 1895, the first Sino-Japanese War came to an end, when under the rule of the Qing dynasty, Japan defeated China, was forced to recognize the full and complete independence of Korea and to cede to Japan territories including Formosa (Taiwan) and the Pescadores Islands (Penghu) an archipelago of 90 islands and islets in the Taiwan Strait, under the Treaty of Shimonoseki.

Earlier in January 1895, claiming the islands were uninhabited, Japan annexed the Diaoyudao in the North China Seas renaming it Senkaku Islands.

The Second Sino-Japanese War began with the Marco Polo Bridge Incident of July 1937—a battle between the Republic of China’s National Revolutionary Army and the Japanese Imperial Army—marking the Japanese invasion of China.

On September 1937, after claiming exclusive rights over several South China Sea archipelagos, Japan invaded the South China Seas by occupying the Pratas Islands. The Japanese Imperial Navy landed on the Spratlys in December 1938 and occupied Hainan Island the following February.

Japan’s military foray into the South China Sea takes place during a decade in which France’s Indochina forces have also been present in the area, surveying the islands in the early 1930s and occupying the Paracel Islands in 1938.

Japan invades China from July 1937 to September 1945

As nations were in ruins as World War II was to end, representatives of 50 countries, including the Republic of China (ROC), convened from April 25 to June 26, 1945, gathered to draft the charter of United Nations (UN).

On September 2. 1945, World War II in the Pacific terminates as Japan signs its formal surrender to Allied forces of which China, that was undergoing a civil war, was an integral part of. After due ratification of its charter, the UN officially opened on October 24, 1945.

In 1945, in accordance with the Cairo and Potsdam Declarations and with American help, the armed forces of the Republic of China (ROC) accepted the surrender of the Japanese garrisons in Taiwan-including the Paracel and Spratly Islands and declared both archipelagoes to be part of Guangdong Province.         

The United States called the Allied Forces to a Convention in San Francisco, literally to divide the spoils of war. Because of the existence of two Chinas, however, ROC and PROC were disinvited. In what followed as the Treaty of San Francisco of 1951, Japan nevertheless formally turned over of most of the Chinese territories it invaded (with a few exceptions like Senkaku (Daioyu).

Significantly ROC and Japan signed in 1952, the Sino-Japanese Peace Treaty (Treaty of Taipei, nulling all treaties signed by the two countries before December 1941 when the second world war started.

With this treaty, Japan returned Taiwan (Formosa) and Penghu (Pescadores) including Spratlys and Paracel Islands, to China.

At its 26th session in October 1971, the United Nations General Assembly adopted Resolution 2758, promulgating the One-China Policy recognizing to the People’s Republic of China and expelling the representatives of Chiang Kai-shek from the United Nations. and in all the organizations related to it”.

Thereupon PROC legally became successor-in-interest of ROC.

On June 9, 1975 the Philippines establishes diplomatic relations with PROC, not only recognizing in their Joint Communique, the One-China Policy but the agreement to settle all conflicts and disputes through bilateral negotiations.

Sometime later as UNCLOS takes effect in 1982, both the Philippines and China acting separately, opted out of UNCLOS’ compulsory arbitration proceedings and adopted bilateral negotiations as preferred mode in the resolution of disputes with co-signatories.

President Noynoy Aquino’s motives in seeking to resolve our conflicts with China in the South China Seas during his watch, through arbitration, is therefore suspect, if not malicious. It has given us no clearcut advantage, but has given the United States a propaganda edge in favor of its pivot to Asia.

 I have exhaustively explained the absurdity of that arbitration in an article at the Asian Century Journal, “Man Behind West Philippine Seas Left Us Dissonance He Created” https://asiancenturyph.com/2023/04/23/man-behind-west-philippine-seas-left-us-dissonance-he-created/

Legal nuances

In the case of the Philippines’ position, for instance – just by looking at the map, it is obvious our claims to sovereign rights in our self-proclaimed EEZ, when projected from our 2009 baselines, overlaps with China’s superior sovereignty claim.

In the discussion of such issue, there are essential legal nuances that any self-respecting analyst cannot ignore.

First and foremost, China’s presence in the area is backed-up by its domestic or municipal laws, while ours are not.

Its straight baselines were initially legislated in 1972. Furthermore, in compliance with UNCLOS China defined its territorial seas and contiguous zones in 1992 and exclusive economic zone and continental shelf in 1998. Over and above this, it emphasizes that these submissions to the treaty is not to the exclusion of and neither do they prejudice its historical and legal rights.

Administrative Order No. 29 issued by President Noynoy Aquino on September 5,2012 merely gave a name “West Philippine Seas” for the maritime areas on the western side of the Philippine archipelago.

While it is true that Ferdinand Edralin Marcos’ 1978 issued two Presidential Decrees on June 11, 1978 that had the force of legislation, there have been complications that weakens our claim.

 On the first being PD 1596 creating the Kalayaan Island Group (KIG) that demarcated boundaries covering a polygon constituting an archipelago, the third paragraph of UNCLOS Article 121, disqualifies the KIG to constitute a “regime of islands”, as it expressly provides that “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

Worse, the mock PCA registered tribunal of 2016 sustained this in its ruling, and if we insist on this arbitral award, we are in danger of losing the KIG polygon created by the first Marcos decree.

On the second decree that is PD1599 establishing a 200 nautical mile “exclusive economic zone”, even geopolitical karaokist Richard Heydarian admits – “there is no exact demarcation of boundaries for the area in the South China Sea which forms what the Philippines is claiming to be its 200 nautical miles of exclusive economic zone.”

Worst, despite the fact that it is 124 nautical miles west of the Zambales coast, and despite the fact that Scarborough Shoal is a high-tide elevation and therefore, by customary international law, it generates a territorial sea of 12 nautical miles, and by UNCLOS is further capable of generating 200 nautical miles of EEZ – the 2016 PCA-registered tribunal also could not, and did not, rule on who (China or the Philippines) owns it since precisely sovereignty or maritime delimitation is not within the ambit of UNCLOS.

The mock tribunal instead ruled on the issues involving the application and interpretation of UNCLOS, as such declaring Scarborough Shoal has been a traditional fishing ground for fishermen of many nationalities, including the Philippines, China (including Taiwan) and Vietnam and accepts the fact that both the Philippines and China claim that they have traditionally fished in the shoal and that these claims are accurate and advanced in good faith.

Effectively, the matter of exclusivity has become meaningless, an oxymoron graduating the area into a “shared economic zone”.

Aquino’s “West Philippine Sea” order also cites Republic Act No. 9522 that delineated the baselines of the Philippine archipelago, enacted into law in 2009 under former President Gloria Macapagal Arroyo.

There is resounding silence, however, that the longitudinal and latitudinal baselines indicated in RA 9522 were still the territorial demarcations of the Treaty of Paris of 1898 and the Treaty of Washington of 1900, that has no relevance to the present issues.

This is embarrassing, but we have not done our homework and moreover, we have further weakened our position with the exclusion of our historical and legal claims from the 1987 Cory Constitution.

I will repeat, “West Philippine Seas” is a mere presidential fiat that has no effect on law except on nomenclature.

A law is a piece of legislation used to create policy in order to carry out the principles of the Constitution. It is crafted and passed by the Congress and approved by the President. It can only be repealed by a similar act of Congress.

An administrative order is not a law. In the Philippine Administrative Code of 1987, Book III, administrative orders are just “acts of the President which relate to particular aspects of governmental operations in pursuance of his duties as administrative head.”

Besides this, that the PCA-registered tribunal was tentative on the UNCLOS bar against regime of islands in the Spratlys, and feckless on sovereignty issue when it came to Scarborough Shoal. On the other hand, on the issue of the nine-dash line, geopolitical karaokists have used it hook, line and sinker to demonize China’s claims.

Joint Patrols

With a glasshouse built on foundations of sand, Philippine Ambassador to the United States Ambassador Jose Manuel “Babe” Romualdez has recently announced over ABC-CBN News Channel that joint patrols in the disputed South China Sea, among the Philippines and its allies, could begin “very soon”.

Hinting on earlier than the third quarter of the year as timeline, what and where are these joint patrols going to be, except mostly in areas that are already claimed by China as part of its territorial seas?

But without updated baselines, at best our coast guard is lost at sea!

Knowing that the South China Seas, especially those close to the Ayungin Shoal is already contentious waters, our coast guard ships’ forays in the area with local and foreign media groups in tow, is already begging for an accident to happen to spark a hot war.

Before President Marcos Jr. ended his working visit to Washington, US Defense Secretary Lloyd Austin reiterated Washington’s ironclad commitment to the defense of the Philippines, adding that the two nations’ Mutual Defense Treaty applies to armed attacks against the Philippines’ armed forces, coast guard vessels, public vessels, or aircraft in the Pacific, including anywhere in the South China Sea.

Can you now see how the war the United States is planning against China will not be in Taiwan but through the Philippines?

Austin’s parting shot to Marcos Junior was: “We have your back…!”

Or did he mean, “We got you back, man”. That is to say “We got you by the balls, man!”

To be continued. Part Three shows how good the United States in keeping its word, with Ukraine and Volodomyr Zelensky as case study.

 

Adolfo Quizon Paglinawan is a former Philippine diplomat assigned to Washington DC and the United Nations in New York. Currently he is a broadcast journalist and the vice president of AsianCenturyph.com, and has written extensively about Philippine-China relations. He has authored three books – Prices include free delivery in the Philippines .  (2015) A Problem for Every Solution (P899) , (2020) No Vaccine for Virus Called Racism (P799), and (2022) The Poverty of Power (P999)  Text  0917-3364366 to order.

Contact: adolfopaglinawan@yahoo.com  |  FB@AdoPaglinawan

 

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