Part III: How Marcos Jr. Can Start Recovering Our Lost Territories
As we speak, the Chinese Ministry of Natural Resources issued last August 28, 2023 a new version of China standard map now including a 10-dash line that shows China’s boundaries in the South China Sea.
The “standard map” released by Beijing’s state-owned newspaper, Global Times, lays claim to a large part of the South China Sea. Significantly, the map also showed Taiwan, as well as India’s northeastern state of Arunachal Pradesh and Aksai Chin region, as part of China’s domain.
As always, our Department of Foreign Affairs resorted to legalisms, saying “This latest attempt to legitimize China’s purported sovereignty and jurisdiction over Philippine features and maritime zones has no basis under international law, particularly the 1982 United Nations Convention on the Law of the Sea (UNCLOS).”
DFA vounteers as its authority: The 2016 Arbitral Award “invalidated the nine-dash line.”
You know when the DFA engages in dismissive legalisms like this, I become alarmed in that those who are administering our foreign relations have already been infected by diarrhea of the mouth prevalent in our Congress of baboons.
Every treaty is subject to the universal principle of state consent.
Countries joining are permitted to harmonize the treaty with their internal laws and issue declarations for any caveats arising. In China’s signature, ratification to UNCLOS, and anytime after within allowable guidelines, it declared to the UN Secretary-General, certain provisions of the treaty that could not apply to them, including the matters of pre-existing territorial delimitations and compulsory arbitration.
How can an arbitral award “invalidate” anything? Being a voluntary arbitration, decisions it arrives at are only applicable to the parties involved in it. May I remind our government that there was only one participant in that botched proceedings, ergo that ruling only applies to the Philippines.
How can UNCLOS, one specific treaty, supersede general international law?
Our diplomats also have to be reminded once again that international law is not confined to just UNCLOS, but the set of rules, norms, and standards generally recognized as binding between states.
It is a system of treaties and agreements between nations that governs how nations interact with other nations, citizens of other nations, and businesses of other nations. It also includes “customary” laws that are not written anywhere but nations consent to them by doing nothing over time.
At any rate, I welcome China’s move to assign a dash to Taiwan because this extinguished ambiguity in its position.
In fact, the inclusion of Taiwan as the tenth-dash line is long overdue. In the Cairo Conference of 1943, US President Franklin Delano Roosevelt and British Prime Minister Winston Churchill were empathically specific about the return of Formosa, among others, by Japan to China.
In the statutory construction I rendered during previous lectures, I discussed how that title to the South China Seas, and all territories stolen by Japan from China, were returned to China by Japan, in their Treaty of Taipei in 1952, as mandated by the Cairo and Potsdam Declarations of 1943 and 1945 respectively and the 1951 Treaty of San Francisco. Uniquely in the case of China, the Second Sino-Japanese War was also terminated at the same time as the Second World War.
For those of you who do not know, “Formosa” is what the Japanese called Taiwan.
China’s sovereignty was sealed way before the adoption of UNCLOS in 1982 when in 1971, the UN General Resolution 5728, proclaimed the Peoples Republic of China as the undisputed representation of the Chinese people in the United Nations, ipso facto serving as successor-in-interest of the Republic of China.
Pertaining to the UN, the news report also maliciously referred to the 2016 arbitral ruling as being issued by a “United Nations-backed tribunal” in the Hague…”
Stefane Dujarric, spokesman for UN Secretary-General Ban Ki-moon, one day after the publication of this award, said the United Nations had nothing to do with this arbitration and has no comments on its merits.
Here is the transcript of the press conference:
What UN-backed tribunal is this reporter talking about? The official adjudication body pertaining to UNCLOS is ITLOS – the International Tribunal for the Law of the Sea.
What Carpio and his ilk, especially the Stratbase Albert del Rosario Institute in chorus with its principals in Washington DC’s Center for Strategic Studies and the US National Endowment for Democracy (the overt complement of the Central Intelligence Agency) and its agents and talking heads in the Philippines, prefer to celebrate as “victory”, is Paragraph 112 (B)(2):
“China’s claims to sovereign rights jurisdiction, and to ‘historic rights’, with respect to the maritime areas of the South China Sea encompassed by the so-called “nine-dash line” are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements expressly permitted by UNCLOS.”
Whenever China haters say China’s claims have no legal basis, they refer to this “invalidation” with the weight of a self-fulfilling prophecy. They remain mum about the Award’s qualifying provisions.
In Paragraph 206, the ruling itself qualified: “As far as the Tribunal is aware, however, the most insightful formulation by China of its claims in the South China Sea, beyond its claim to sovereignty over islands and their adjacent waters, is a claim to relevant rights in the South China Sea, formed in the long historical course.”
Even Carpio has alluded to this long historical course but only in passing, never substantially.
Paragraph 207 continues “…the mere fact that China asserts rights in the South China Sea does not indicate that China considers those rights to derive from the ‘nine-dash line’. “
What Carpio also glosses over is Paragraph 272: “In particular, the Tribunal emphasises 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 Sea.”
The continuation, in fact, presents a caveat: “Nor does the Tribunal’s decision that a claim of historic rights to living and non-living resources is not compatible with the Convention limit China’s ability to claim maritime zones in accordance with the Convention, on the basis of such islands.”
This simply clarifies that UNCLOS as a specific law and the arbitral tribunal as a forum, cannot be the final arbiter of this issue. Those who insist on this lawfare trap are no better than charlatans provoking dissent and endless disputation instead of negotiating for an agreement.
Regaining Kalayaan and Scarborough
At the beginning of this paper, I said I welcome China’s new law on a ten-dash line.
In fact, Paragraph 272, and China’s amendment of its position in the South China Seas can also serve as the opening for a penultimate round regaining the polygonal archipelagic nature of the Kalayaan and the rectangular configuration of the Philippines as an archipelago.
If it can favor China, it can equally work for the Philippines.
The solution to our dilemma is to first get out of our UNCLOS and EEZ mindsets on the west side of the Philippines, to zero-base our relations on the SCS issues.
Secondly, we enter the Chinese maze and engage them in a conversation about historic and equitable rights, using their modus of choice, bilateral negotiations. We must begin our engagement through Cina’s Embassy in Manila, yes involving Ambassador Huang Xilian.
Thirdly, we must modernize our baselines, in consonance with our 1898 Treaty of Paris limits and PD 1596 demarcations.
(Although unrelated to this diplomatic initiative, a serious thought must be given to the inclusion of Sabah, which was reserved in Section 2 of Republic Act 5446. “The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty.” September 16, 1968)
Fourth, based on China’s new law on their 2023 standard map and our modernized baselines law, lets negotiate on the level of “condominium” or joint sovereignty and UNCLOS-guided sovereign rights.
At this level, even the “constitutionality” issue of the proposed joint oil and gas exploration between China and the Philippines at Reed Bank (Recto Reef), will be constructively addressed.
The model here can be the Timor Leste-Australia Sea Treaty, a first of its kind enabled by two democratic nations and close neighbors, setting a positive example for their region and the international community.
Searching for Dream Team
This is a hard pill for old-school public officials like Gibo Teodoro and Ricky Manalo. It may also be impossible for Western megaphones Richard Heydarian and Jay Batongbacal, and lovers of the American gunpowder, Jay Tarriela and Jonathan Malaya, to accept because they might lose their livelihood.
This will require topnotch objectivity, so there is no room for Teresa Dazas and Henry Bensurto who have already compromised themselves. The best career diplomat for this job would have been Albert Encomienda, but he has already left us for a better life.
It will also require radio silence, so we have to render expendables former CNN deep throat Jimmy Flor-Cruz and forever PR agent Babes Romualdez for this job. A mistake was already committed assigning Teddy Boy Locsin as special envoy to China, he must be sent back to London to perfect his British accent.
Since we are zero-basing with China, zero access must be given to anybody with an iota of connection with Forum Energy and Philex Mining (PXP) like Antonio Carpio and Manny Pangilinan.
Instead, the legal minds of Francis Jardeleza, Harry Roque and Melissa Loja must be harnessed to draft a new baselines legislation that will restore the longitudes and latitudes of the Treaty of Paris, and position the Kalayaan Island Group as originally intended by PD 1596.
Rigoberto Tiglao can chair the task force, with career Ambassador Carlos Sorreta as vice-chairman and chief protocol officer, and Ricardo Saludo as secretary-general. PCG Rear Admiral Armand Balilo is best spokesman.
Sass Rogando Sassot, Anna Malindog-Uy and former PCG Commandant Admiral Joel Garcia, may be tapped as consultants.
This is my dream team for a new window with China as I derive inspiration from a line of Chinese poem written 1,000 years ago:
“”Boundless is the ocean where we sail with the wind.”
This ancient saying, which means there are no geographical limits to where we travel to meet friends, has enduring resonance in modern China.
Let us collect from Xi Jinping’s promise to the Boao Forum for Asia in 2018:
“I wish to make it clear to all that China’s door of opening-up will not be closed and will only open even wider.”