Part 9: Where Brawner sees war, China sees diplomacy
Hanoi sent diplomatic notes to China and the Philippines to protest against their activities at Sandy Cay in the contested South China Sea, urging them to respect Vietnam’s sovereignty over the Spratly “archipelago”.
Its foreign ministry spokeswoman Pham Thu Hang said Vietnam demanded that “relevant parties” to “refrain from actions that further complicate the situation”.
China Central Television (CCTV) reported towards the end of last month that Chinese coastguards and Philippine maritime operatives, alternately landed at Sandy Cay, and raised their own flags to assert their respective country’s sovereignty over the feature.
Compared to the pandemonium of the Philippine Coast Guard, the National Security Council, and the Philippine Navy over the China’s action, Manila was mum about Vietnam’s disputations.
There is no possibility here of the existence of a love triangle. Both China and Vietnam have hated colonialism and each has a long past of being able to communicate with the other despite challenges. The Philippines however despite shared roots with China, is in bed with neo-colonial United States.
It pains me to accept that we Filipinos romanticize our being “brown brothers” to the Americans, allowing ourselves to be pawns to our former colonial masters’ “rules-based order”, instead of learning from Vietnam how to deal with neighboring China. It is really a lot simpler – returning to an independent foreign policy and enforcing it through diplomacy.
But what can we do when our public servants in foreign affairs prefer serving as lazy and corrupt lawyers for the gringos and often demonstrate functional illiteracy when it comes to historic titles.
Recent history
Vietnam’s claims go way back to the first dissonance in the South China Sea, introduced by France.
In a 1994 paper entitled Dangerous Ground: The Spratly Islands and International Law, Brian Murphy narrated that one of the earliest treaties used by a nation to assert a claim over the Spratly Islands is the Convention Respecting the Delimitation of the Frontier Between China and Tonkin, signed by China and France in 1887.
Under this treaty, France and China agreed to a French protectorate over what today is Vietnam. In addition, the treaty established a French claim to areas in the South China Sea lying west of a line 1050 43′ east of Paris.
The Spratlys, however, lie east of this line, and therefore beyond the French claim.
In 1856, a second Opium War broke out and continued until 1860, when the British and French captured Beijing and forced on China a new round of indemnities, and the opening of 11 more treaty ports.
This became the portal for Western powers to pressure the Qing Dynasty of China to “unequal treaties” giving privileged status to foreigners and extracted concessions from the Chinese.
To show how distracted China was, this was also the time when China started becoming embroiled in a much larger dispute with a third country – Japan. The First Sino-Japanese War, fought from 1894 to 1895, was a conflict between the Qing Dynasty of China and the Meiji Empire of Japan, primarily over influence in Korea.
Japan’s decisive victory in this war marked a pivotal moment in East Asian history, signaling the decline of the Chinese empire and the rise of Japan as a major power, seeding the Asian beginnings of what would evolve into the Second World War.
The Treaty of Shimonoseki, signed on April 17, 1895, officially ended the war, constraining China to cede to Japan, the Liaodong (Manchurian) peninsula, Formosa (Taiwan) and the Pescadores Islands.
China’s history between 1895 and 1933 was one of decline.
Against the backdrop of unequal concessions to foreigners and the defeat in the Sino-Japanese War, and with about 10% of the population succumbing to opium addiction, the Qing dynasty began facing internal rebellions.
After a decade of agitation, revolts, and uprisings, the Chinese monarchical rule that spanned over two millennia of imperial rule including 200 years of Qing reign, collapsed and saw the seeds of China’s republican era.
The 1911 Xinhai Revolution led to the establishment of the Republic of China a year after. Sun Yat-sen, a republican activist who played a key role in the revolution attempted to modernize the country and establish a democratic government, but it faced significant challenges plagued by internal conflicts, including the rise of warlordism, the ongoing first phase of a civil war between the Nationalists (Kuomintang) and the Communists that started in 1927.
France took advantage of this dissonance, and occupied a number of islands in the South China Sea, including a number in the Spratlys, following the Mukden Incident, a false flag event staged by the Japanese military on September 18, 1931 to justify their invasion of Manchuria (a region in northeastern China),
The Chinese was quick to react to the French expansion towards the Paracels and the Spratlys, and lodging diplomatic protests in both 1933 and 1934 based on China’s claim to “historic ties” to the islands and on the provisions of its 1887 treaty with France.
But with the Second Sino-Japanese War erupting in 1939 with the Japanese invasion of the Spratlys and eventually the entire South China Sea, the French presence disappeared.
Japan renamed the Spratlys the “Shinnan Gunto” archipelago and used its strategic location for naval bases from where Japan’s navy could assist in invasions in the region and effectively block Allied shipping.
In 1943 Chiang Kai-shek met with Franklin Dela Roosevelt and Winston Churchill in Cairo and issued a declaration that all territories stolen by Japan must be returned to China. The Potsdam Declaration of 1945 confirmed this in its Article 8.
After World War II and in compliance with Cairo and Potsdam conferences, Japan renounced all territories it took from China in the San Francisco Allied-Japanese Peace Conference of 1951 and returned them formally in the Treaty of Taipei in 1952 to the Republic of China.
In baffling incongruence, France, a participant in the 1951 San Francisco Conference, did not reassert its claim at that time, but “turned over” to Vietnam its claims to the Spratlys in 1956, four years after the Treaty of Taipei.
In a 2002 The Sino-Vietnamese Approach to Managing Boundary Disputes by Ramses Amer, published by the University of Durham, observed:
“…it is noteworthy that three statements made by senior officials of the DRV in 1956, 1958 and 1964, respectively, have been presented by China, after 1975, as evidence of DRV, i.e. Vietnamese, recognition of China’s sovereignty claims to the two archipelagos.
“Vietnam has not denied that these statements were made but argues that they do not weaken Vietnam’s sovereignty claims. This is based on the line of argumentation that the statements have to be understood in the context of the specific strategic situation that prevailed during the Vietnam War.”
When in 1971 the United Nations recognized the Peoples Republic of China representation replacing the Republic of China, as the “One China”, the former became the latter’s successor-in-interest which was formalized in the Japan-China Treaty of 1972.
Sandy Cay is one of the footnotes in history left by Vietnam’s weak arguments in their claims at the Spratlys.
Basics
Before we allow history, however, to sweep us under our feet, let’s do some fact-checking. If Sandy Cay is involved, we have to start with our claim to Pagasa or Thitu, first, because in international law, there is a distinction between sovereignty and “exercise” of sovereignty.
What is Pagasa? The Arbitral Award classified it as a rock that is capable of a claim for sovereignty and may be entitled to a 12 nm territorial sea.
Do we have undisputed sovereignty in Pagasa? No.
Our presence in the rock is by virtue of “conditional” occupation, and as occupant we are only “exercising” sovereignty. Such exercise of sovereignty has only been made possible by a “status quo” provision of the 2002 Declaration of Conduct between ASEAN countries and China.
Section 5 of the DOC provides “The Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.”
To reiterate, our presence in Pagasa is disputed. A state acquires undisputed sovereignty over a territory through various internationally recognized methods, including cession, effective occupation, accretion, conquest, and prescription.
Presidential Decree 1596 had justified in 1978 that our occupation of the feature since 1971 is based on the principle of “terra nullius”. The term etymologically originated from Latin meaning “nobody’s land” or “land belonging to no one”. In legal jargon, it is land that is not claimed or controlled by any sovereign power or organized political entity.
Uninhabited, maybe, but with no master or sovereign? Our claim becomes awkward in the light of history. As we have already established, China has claimed sovereignty over the Spratlys since time immemorial. France annexed some of it for Vietnam in 1933 but Japan invaded it in 1939 but returned it to China in 1952.
Our basis for occupation of Pagasa is internal law that created the Kalayaan Island Group in 1978. After UNCLOS became effective in 1994, in anticipation that its definition nullifies the delimitation of KIG as an archipelago, the Philippine baselines law of 2009 or Republic Act 9522 reconfigured KIG as a “regime of islands” to suit Article 121(3) of the Convention.
The 2016 Arbitral Award confirmed the invalidation of the archipelagic nature of the KIG but did not explicitly mention the Philippine claim of KIG as a “regime of islands” because UNCLOS has no authority over sovereignty issues based on land. Its jurisdiction is confined to maritime issues.
To frustrate the adventurous claim of our Armed Forces, we do not yet have a sovereign title to the feature to confirm that it is “ours”.
Without the DOC, there is no saying we could have kept Pagasa or any of the nine other features that we have occupied, given the track record of our military protecting occupied territory, after we lost Pugad to the Vietnamese 1975 by subtle force.
Losing Pugad to Vietnam
A report suggests that South Vietnamese officials sent prostitutes to the birthday party as a “present” to the Filipino commander, potentially luring the Filipino soldiers and providing the Vietnamese with information about their absence.
While the Filipino soldiers were away, feasting and getting intoxicated, South Vietnamese forces stealthily invaded and occupied Pugad Island.
Upon returning to Pugad Island after the party and a sobering storm, the Filipino soldiers were surprised to find the South Vietnamese flag flying over the island and machine gun nests waiting for them as they attempted to approach.
The Philippines lost control of the island to South Vietnam. The feature has since been occupied by Vietnam under the name Song Tu Tay.
Pagasa Cays?
The reference to Pagasa is essential because our narratives on Sandy Cay hinges on sovereignty issues involving Pagasa and in fact our very presence in the Spratlys, to the effect that Sandy Cay is ours on the basis of:
- Proximity. Pagasa is only 3 to 4 nautical miles away from the nearest point of Sandy Cay.
- Sandy Cay is within the 12 nautical mile territorial sea of Pagasa.
We cannot hide behind these parochial assumptions because Sandy Cay is outside of our established territorial limits and our internal laws must harmonize with international law.
As shown in the satellite map above, Thitu (Pagasa) and Thitu Reefs (Sandy Cays) may have been listed in one grouping by the International Hydrographic Organization, together with Eastern Reef, because of their proximity to one another but they have separate identities and delimitations.
The Philippine-side even attempted to mislead the Arbitral Tribunal in its submission when it asserted during the proceedings that (¶370) Sandy Cay no longer existed, citing more recent U.S. charts that include the Thitu Reefs and satellite-derived bathymetry prepared by EOMAP.
This misrepresentation would incorrectly classify Sandy Cay as low-tide elevation and therefore could be considered within Pagasa’s 12 nm territorial sea.
However, “…the Tribunal does not believe that any reliable conclusions can be drawn from the absence of a depiction of Sandy Cay in the 1984 edition of United States Defense Mapping Agency Chart No. 93044 (¶371) which was just ultimately derived from the HMS Rifleman survey of the Thitu Reefs in 1967 (¶367).
“With respect to satellite imagery, the Tribunal remains unconvinced that reliable conclusions can be drawn from EOMAP’s satellite-derived bathymetry.” (¶373a)
Thus, the tribunal disagreed and concluded, “in contrast to a rock or coral boulder, it is possible that a sand cay may be dispersed by storm action and reform in the same location after a short while. The absence of a sand cay at a particular point in time is thus not conclusive evidence of the absence of a high-tide feature. (¶373b).
Indeed, fifteen years after the DOC, Sandy Cay was confirmed as a high -tideelevation or a “rock” in 2017, a year after the Arbitral tribunal took noticed that it “may no longer be dynamic and may have become permanent because of the debris from dredging in Chinese-occupied Subi (Zamora) Reef, (which is ) about 10 nautical miles (19 km) southwest” (¶373c).
This has changed the realities altogether as the 12 nautical mile territorial sea of Pagasa no longer engulfs Sandy Cay but overlaps with it.
Worse, the conjecture that China-occupied Subi Reef (a low-tide elevation per ¶368) could also be part of Pagasa’s territorial sea has now been obscured by Sandy Cay as it is now the latter’s 12 nm territorial sea, southwards, that engulfs Subi Reef.
The described principle of using a median line for delimiting territorial seas between states with opposite or adjacent coasts is articulated in Article 15 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
“… in the absence of agreement to the contrary, the boundary is the median line, every point of which is equidistant from the nearest point on the baselines from which the territorial sea of each state is measured.”
If the total distance is three nautical miles, the territorial sea where Pagasa faces the cay is only as good as 1-1/2 nautical miles, and vice-versa.
If the Philippine does not agree to this, it will be subject to a precedence-setting ruling of the International Court of Justice (Qatar vs Bahrain) March 16, 2001, which ruled an exception, to wit (¶175): “The above provision does not apply, however, where it is necessary by reason of historic title…” This definitely prejudices our position regarding Pagasa.
So, what maritime jurisdiction do we have in the area except for the 12 nautical mile entitlement of Pagasa as a rock, which has now to be shared with Sandy Cay, after applying UNCLOS’ median between them?
Summary
Both the positions of Vietnam and Philippines have been novated by succeeding events.
France cannot turn over to Vietnam in 1956, what it lost to Japan by occupation in 1939 and what the Japanese returned by treaties to the Republic of China in 1952, and finally to the Peoples Republic of China in 1972.
The “Pagasa Cays” notion have been superseded by two factors. First, the 2002 Declaration of Conduct – It is ridiculous for the Philippines to assert China cannot occupy the feature, while at the same time it proceeds to occupy it.
Further, Sandy Cay has evolved becoming a high tide elevation or a rock. As such, it is capable of being appropriated for sovereignty and entitled to its own 12 nautical miles of territorial sea.
The 2016 Arbitral Award itself has provided the rationale why China will stake its sovereignty on this feature as a red line – “As Subi Reef lies within 12 nautical miles of the reef on which Sandy Cay is located, it could serve as a basepoint for the territorial sea of Sandy Cay.” (¶373d)
What rules over Sandy Cay, therefore, is China’s effective and overpowering control of the South China Sea.
As its spokesman has said over and over again – Those who play will fire, will perish by it. #
To be continued, next – Status of our claims and where we are terribly failing our people
Adolfo Quizon Paglinawan
is former diplomat who served as press attaché and spokesman of the Philippine Embassy in Washington DC and the Philippines’ Permanent Mission to the United Nations in New York from April 1986 to 1993. Presently, he is vice-president for international affairs of the Asian Century Philippines Institute, a geopolitical analyst, author of books, columnist, a print and broadcast journalist, and a hobby-organic-farmer.
His best sellers, 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, earned for him an international laureate in the Awards for the Promotion of Philippine-China Understanding in 2021. His third book, The Poverty of Power is now available – a historiography of controversial issues of spanning 36 years leading to the Demise of the Edsa Revolution and the Forthcoming Rise of a Philippine Phoenix.
Today he is anchor for many YouTube Channels, namely Ang Maestro Lectures @Katipunan Channel (Saturdays), Unfinished Revolution (Sundays) and Opinyon Online (Wednesdays) with Ka Mentong Laurel, and Ipa-Rush Kay Paras with former Secretary Jacinto Paras (Tuesdays and Thursdays). His personal vlog is @AdoPaglinawan.
Email: contact@asiancenturyph.com
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