By Adolfo Quizon Paglinawan  |  AsianCenturyPH.com  |   August 22, 2023 

 

Five days ago, a vlog by ABS-CBN dropout Christian Esguerra issued a factcheck on South China Seas issues interviewing former Associate Justice Antonio Carpio. It is hilarious that the title of the vlog “Facts First”.

Expectedly, Carpio lied to his teeth.

The former magistrate struck references from four international treatises outlining the return of the Spratlys and the Paracels by Japan to China, but deliberately misrepresented the facts contained in the documents.

He denied specific references in the Cairo Conference to the Spratlys and the Paracels, saying only Manchuria, Formosa and the Pescadores were included in the document.

A literate man with a 20-20 vision, however, will see and read that the letter of the document referred to “all territories Japan has stolen from China”, and specifically mentioned the three, as mere examples after the prepositional conjuction “such as”.

Any graduate of Ateneo de Manila worth his diploma, ought to know that “such as” is a phrase that combines the demonstrative pronoun “such” and the modifier or conjunction “as” that when put together, is used to provide examples or to clarify one’s statement. (Source: Grammarly)

So let’s revisit the full and original quotation in the Cairo declaration that Carpio hacked: “It is their purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and “that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and The Pescadores, shall be restored to the Republic of China.”

 While Carpio was correct in saying that the Potsdam Declaration merely reiterated what was expressed in Cairo, again he limited himself to the three features that he cited as the only inclusions, rather than mere exemplifications. Item 8 of this declaration stated “8. The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.”

I concluded at this point that lying might even be an understatement, the retired juror was maliciously twisting the facts. This cannot be dismissed as a simple mistake. I know Carpio as early as when I was in San Beda because we were contemporaries in the College Editors Guild. He was in the staff of The Guidon, Ateneo’s school organ.

 Carpio also alleged that the Spratlys and the Paracels were not mentioned in the Treaty of San Francisco. It is clearly stated in Article 2 Section (f) Japan renounces all rights, title and claim to the Spratly Islands and to the Paracel Islands.

Note that just as World War II was coming to a close, there still existed a civil war in China. There was no Chinese presence in San Francisco as both the Republic of China and the Peoples Republic of China were disinvited.

What China, however, could not receive in San Francisco, it did accept less than a year later in Taipei – the surrender of Japan – not just in World War II that started in 1941, but in the Second Sino-Japanese War that started earlier in 1937.

This was why it was significant that in the Treaty of Taipei, an Article 4 was included, recognizing “that all treaties, conventions, and agreements concluded before 9 December 1941 between Japan and China have become null and void as a consequence of the war”. China had to zero-base its bilaterals first, before entering a new treaty since in 1937 it made concessions to Japan in the Treaty of Simonoseki after it lost the First Sino-Japanese War.

What territories China lost to Japan in two wars and a treaty (Simonoseki), were restored back to China through war and the treaty that finally ended it, the Treaty of Taipei. Otherwise, China and Japan would still be in state of war today.

Even an amateur in international law would see the significant and defining historical as well as juridical flow from Cairo to Potsdam to San Francisco and finally to Taipei.

Suffice it to say, when the UN General Assembly passed Resolution 5728  The resolution, passed on 25 October 1971, recognized the People’s Republic of China (PRC) as “the only legitimate representative of China to the United Nations” and removed “the representatives of Chiang Kai-shek” (referring to the Republic of China (ROC), thus the One China Policy – all rights, titles and claims erstwhile belonging to the Republic of China accrued to the Peoples Republic of China as successor-in-interest, including Taiwan becoming its province.

In history, we cannot cherry-pick and make conclusions. All events have, not just immediate but underlying causes and effects that are inter-connected. The same applies to international law, under the principle of causa causae est causa causati – the cause of the cause is the cause of the final effect.

With this exposition of the truth, the whole truth and nothing of the truth, the former associate justice even made another serious prevarication by categorically saying that the 2016 arbitration ruled that “China has no historical basis” over its claim to the South China Seas.

That’s minute 10:45 to 10:51 of Esguerra’s vlog.

While Carpio was right saying the arbitral tribunal declared that the “nine-dash line” has no legal basis, he also admitted the ruling was based only on UNCLOS.

UNCLOS, however, is a specific treaty that cannot rule on sovereignty issues and historic rights. As its name indicates, “laws of the seas” is limited to maritime entitlements and certain sovereign rights they generate.

As matter of fact, the very arbitral ruling Carpio cited, says in Paragraph 272, page 115 – “The Tribunal emphasizes that nothing in this Award should be understood to comment in any way on China’s historic claim to the islands of the South China Seas.”

Besides, the Peoples Republic of China has never invoked the “nine-dash line”, demarcation made by the Republic of China in 1946, as the foundation of its claim of sovereignty over the entirety of the South China Seas – but “historic rights” that have just been proven once again from the nexus of causality connecting Cairo (1943) to Potsdam (1945) to San Francisco (1951) to Taipei (1952), which takes effect under customary international law, way beyond the province and jurisdiction of just one treaty, which is UNCLOS.

These precedents predate the 1978 Presidential Decree 1596 of Ferdinand Marcos Sr. claiming the Kalayaan Island Group. They antedate UNCLOS which was adopted in 1982 and became effective only in 1994.

I hope the retired magistrate is not inferring here any ex-post facto or retroactive application.

The sovereignty that China claims on the basis of both its historic rights and internal law, makes the entire South China Seas – its domestic sea, inclusive of all features regardless of classification, because China is claiming it as a single unit, as an archipelago, by virtue of its victory in two wars with Japan and treaties and conventions precedent to and outside of the jurisdiction of UNCLOS.   

It is easy to take Carpio’s shameless route especially as he salivated for the Reed Bank oil and gas towards the middle of Esguerra’s shallow interview. But if we insist on legalese to get to that, we might not get anything at all and worse risk not just our good relations and booming trade with China.

If you are following this thread, we might end up losing all our territorial claims altogether because we are claiming features within a Chinese archipelago that is the South China Seas.

We have a saying – “Sa paghahangad ng kagitna, isang salop ang nawala” In Filipino measurements, kagitna is half while salop is whole. This should remind Carpio that one should not be too greedy, lest he lose what he could already have.

Our attitude of our way or the highway, backed up by provoking encounters at high seas, is precisely why China has become more aggressive in exercising its “effective control” in the South China Seas in the enforcement of its sovereignty over the area.

In Carpio’s and Esguerra’s lexicon, that is “bullying”.

Well as of this writing, China has even bolstered its presence around Taiwan once again, echoing rumbles in North Korea and Russia’s visibility in the North China Seas.

If President Bongbong Marcos does not depart from his management by hindsight in these conflicted waters, then he has already failed in his promise not to “lose an inch of territory” under his watch. Curiously, after admitting ignorance on an issue involving an agreement on BRP Sierra Madre made by a predecessor, he mindlessly rescinded the agreement.

As the Philippine Constitution mandates him to serve as the chief architect of our foreign policy, he must not be ambiguous about issues that can put the country in harms way. This a responsibility that cannot be delegated to power-tripping wannabes in the Department of Foreign Affairs, the Department of National Defense, the National Security Adviser, senators and congressmen grandstanding to seek reelection or fame, and especially the Coast Guard 

We have already reached a point of international embarrassment where a small municipality has declared an ambassador of a foreign country as persona-non-grata. I mean seriously Bongbong, do you agree with that?

The strategic place to start is does the President accept the 2016 arbitral ruling, or not.

The current flow of his “implied” foreign policy is that he does.

Well then, Marcos Jr., you have just lost 230 square kilometers of territorial claim that your father decreed.

Paragraph 574 of the 2016 arbitral award ruled “the Philippines could not declare archipelagic baselines surrounding the Spratly Islands.”

There goes our claim to sovereignty.

Besides losing the archipelago, the second feature we lose to begin with is Pagasa Island, our biggest island claim, which is more than the maximum 200 nautical miles from the coast of Palawan to be part of an exclusive economic zone. There go our sovereign rights.

And to refresh retired Carpio’s mind, the same arbitral tribunal said that we have no exclusivity over Scarborough Shoal, because it ruled it has been the common fishing ground of many nations since time immemorial.

This is why I say to all jingoists out there – “what is not ours, is not ours”, ought to restore us to our senses. Let’s reroute back to sobriety and realpolitik, where we can hone our energies to essentials not ambition, reason not polemics, facts not propaganda, to negotiation not hostility, to development not war, bearing in mind Isaac Asimov’s warning – “When stupidity is considered patriotism, it is unsafe to be intelligent”.

 

President Rodrigo Duterte never went to Oxford, and even risked being expelled from law school. But growing from a sheer city prosecutor, to city mayor to congressman, and finally president of the Republic, he gathered a lot of moss and conventional wisdom.

Duterte had an iron hand when it comes to criminals, drug lords, armed insurgents and a former colonial master but he never banged his head against the great wall of China As result, he got his people closer to prosperity as early as his first year in office.

Commonsense dictates who our true friends are – on February 28, 2021, China delivered the first shipment of Covid-19 vaccines for our people.

I wonder if any other country values Filipino lives better than our closest neighbor?

Another country that promised delivery by December 2020 finally did in May 2021. Anybody can hazard a guess how many thousands, hundreds of thousands, maybe millions would have been gotten sick or died had we waited for five more months.

In contrast and as we speak, close to half a million have already died in the War in Ukraine, of which that other country is the chief warmonger.

 

Annexes  

The Cairo Conference, November 27, 1943

In November and December of 1943, U.S. President Franklin D. Roosevelt met with Chinese President Chiang Kai-shek and British Prime Minister Winston Churchill in Cairo, Egypt, to discuss the progress of the war against Japan and the future of Asia.

Pertinent text:

“The Three Great Allies are fighting this war to restrain and punish the aggression of Japan. They covet no gain for themselves and have no thought of territorial expansion.

“It is their purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and The Pescadores, shall be restored to the Republic of China.

“Japan will also be expelled from all other territories which she has taken by violence and greed. The aforesaid three great powers, mindful of the enslavement of the people of Korea, are determined that in due course Korea shall become free and independent.

“With these objects in view the three Allies, in harmony with those of the United Nations at war with Japan, will continue to persevere in the serious and prolonged operations necessary to procure the unconditional surrender of Japan.”

In the subsequent Cairo Declaration, jointly released by the United States, the Republic of China and Great Britain on December 1, 1943, the allies pledged to continue the war against Japan and to eject the Japanese forces from all the territories it had conquered, including the Chinese territories, Korea, and the Pacific Islands.

The Potsdam Declaration, July 26, 1945

1. We, the President of the United States, the President of the National Government of the Republic of China and the Prime Minister of Great Britain, representing the hundreds of millions of our country-men, have conferred and agree that Japan shall be given an opportunity to end this war.
2. The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.

 

Treaty of Peace with Japan (with two declarations). Signed at San Francisco, on 8 September 1951

Article 2

(a) Japan, recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet.

(b) Japan renounces all right, title and claim to Formosa and the Pescadores.

(c) Japan renounces all right, title and claim to the Kurile Islands, and to that portion of Sakhalin and the islands adjacent to it over which Japan acquired sovereignty as a consequence of the Treaty of Portsmouth of September 5, 1905. 1

(d) Japan renounces all right, title and claim in connection with the League of Nations Mandate System, and accepts the action of the United Nations Security

 (e) Japan renounces all claim to any right or title to or interest in connection with any part of the Antarctic area, whether deriving from the activities of Japanese nationals or otherwise.

(f) Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands.

 

Treaty of Peace Between The Republic Of China And Japan (Treaty Of Taipei) April 28, 1952

Article 1

    The state of war between the Republic of China and Japan is terminated as from the date on which the present Treaty enters into force.

Article 2

    It is recognised that under Article 2 of the Treaty of Peace which Japan signed at the city of San Francisco on 8 September 1951 (hereinafter referred to as the San Francisco Treaty), Japan has renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratley Islands and the Paracel Islands.

 

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