By Adolfo Quizon Paglinawan

 

Part 30: Where the Philippines sees War, China seeks Diplomacy

Speaking at a press conference at Kuala Lumpur, as far as President Ferdinand Marcos Jr. is concerned, he just “laid out the facts” when he called out China’s plan to establish a nature reserve in Bajo de Masinloc before foreign leaders at the recently-concluded Association of Southeast Asian Nations Summit and Related Summits in Malaysia.

Without mentioning China, he called out the plan as a violation of international law, including the United Nations Convention on the Law of the Sea:

“Moreover, the attempt of some actors to establish the so-called ‘nature reserve’ status over Bajo de Masinloc or Scarborough Shoal, which is a longstanding and integral part of the Philippines over which it has sovereignty and jurisdiction, clearly violates not only Philippine sovereignty, but also the traditional fishing rights of our people guaranteed by international law, including the 1982 UNCLOS, and affirmed by the final and binding 2016 Award on the South China Sea Arbitration and relevant domestic laws.”

Facts or fiction?

1. Clearly violates Philippine sovereignty?

What is President Marcos’ basis for saying we have sovereignty over Bajo de Masinloc?

a. On the basis of historical rights and treaties, the only claims that have been made are on the basis of the Murillo Velarde map by former magistrate Antonio Carpio. Under international law, a map acquires probity only if it is supported by a title based on customary law or a written treaty.

If Spain incorporated the scope of the Velarde map in its territory, why did it not include it in the 1898 Treaty of Paris, which served as the deed of sale of the Philippines from Spain to the United States?

On the contrary, the treaty demarcated 118 degrees longitude as the boundary. Bajo de Masinloc is 9 nautical miles west of that coordinate. In the accompanying documents and maps of the treaty, there was no mention of Bajo de Masinloc.

b. To further exacerbate his position, Carpio argues that while Bajo de Masinloc was not part of the first treaty, he says it is part of the second treaty – the Treaty of Washington of 1900.

Carpio reads the treaty as “Spain relinquishes to the U.S. all title and claim of title, which she may have had at the time of the conclusion of the Treaty of Paris, to any and all islands belonging to the Philippine Archipelago, lying outside the lines described in Article III of that Treaty…” but stops there.

He deliberately and maliciously omits the continuation of the provision, “…and particularly to the islands of Cagayan, Sulu and Sibutu and their dependencies…”

With this I am sorry to confirm that the former associate justice of the Supreme Court is often intellectually dishonest. I accuse Carpio, of what he has been actually known for – lack of integrity in the pursuit or communication of ideas, involving the intentional manipulation, misrepresentation, or omission of facts or evidence to support a predetermined conclusion rather than seeking the truth.

Historiography of Treaty of Washington of 1900

            Let me give you a brief historiography of context and legal basis of our Philippine treaty limits, specifically on the Treaty of Washington of 1900 based on my seven-year term as a Philippine diplomat in Washington DC, supported by the doctoral thesis of Lowell Bautista in his doctoral thesis The Historical Context and Legal Basis of the Philippine Treaty Limits

The purpose of the Cession Treaty of 1900 was to consolidate the American possessions in the Sulu archipelago by including the islands of Sibutu and Cagayan, both of which had always formed part of the possessions of the Sulu sultanate. The possession of these islands has been disputed since the middle of the eighteenth century.

The dispute continued until the U.K., Germany, and Spain signed a protocol on March 7, 1885, which granted Spain sovereignty over the islands. In return, Spain renounced all claims of sovereignty over any part of Borneo. This included renouncing claims over certain adjoining islands named specifically as well as others comprised within the zone of three marine leagues from the coast of Borneo.

Spain took possession of these islands by this prior specific agreement with the U.K.

The later general provisions of the Treaty of Paris in 1898 did not include this territory. The delimitation as stated in Article III of the Treaty of Paris failed to enclose them within the lines drawn around the archipelago. Spain protested against the inclusion of these islands in the ceded territory. It argued the previous specific particular description of the islands should prevail in law as it overrides the general description in the Treaty of Paris.

The U.S. contended that because other powers were anxious to secure the two islands, it could not advantageously allow them to pass into the possession of another State.127 In the end, the U.S. purchased islands for one hundred thousand dollars ($100,000) to remove all doubt as to the validity of the title.

1. Clearly violates fishing rights of our people?

• China honors the traditional fishing rights of not only of Filipinos in territorial sea of Bajo de Masinloc, but Chinese, Taiwanese and Vietnamese.

What China does not tolerate is the forays of the Philippine Coast Guard and the Bureau of Fisheries and Natural Resources who parks in the area to distribute supplies to fishermen.

This is in violation of UNCLOS Article 19 on Innocent Passage:

Sections “(c) any act aimed at collecting information to the prejudice of the defense or security of the coastal State;

“(d) any act of propaganda aimed at affecting the defense or security of the coastal State;

“(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

“(l) any other activity not having a direct bearing on passage”

2-2) Paragraph 809 of the Arbitral Award

The Tribunal notes, however, that “traditional fishing rights are not absolute or impervious to regulation. Indeed, the careful regulation of traditional fishing may be necessary for conservation and to restrict environmentally harmful practices.

“Customary international law, in this respect, does not restrict the coastal State from reasonable regulation(a principle recognized with respect to treaty-based fishing rights in North Atlantic Coast Fisheries 860).

“Nor would it prevent the coastal State from assessing the scope of traditional fishing to determine, in good faith, the threshold of scale and technological development beyond which it would no longer accept that fishing by foreign nationals is traditional in nature. “

Loss of territory

Is the president unaware of how we lost our sovereignty over Bajo de Masinloc?

I used an earlier material from Lowell Bautista because in another document he curiously penned in 2013, he wrote “The Philippine claim to Bajo de Masinloc, otherwise referred to as Scarborough Shoal, finds solid basis in international law. The territorial claim of the Philippines over Bajo de Masinloc is strong relative to the claim of China as well as with respect to the principles on the acquisition of territory in international law, in particular, on the basis of effective occupation.”

This paper however was published in 2013, but primarily dealt with the Scarborough stand-off that began in April 10, 2012. Both the Philippines and China claimed sovereignty over the shoal, but before that day, it was the Philippines that had de facto presence and effective occupation. His prognosis, therefore needs correction because since June 15, 2012 to the present day, the facts on the ground have substantially changed.

We have lost the territory.

The situation could have been easily resolved had President Noynoy Aquino picking up the phone to negotiate directly with China President Hu Jintao, but the Philippine side chose to seek Asean and US intervention. DFA Secretary Albert del Rosario, however, mobilizes Ambassador Joey Cuisia to backchannel through the US State Department pressuring China but U.S. assistant secretary of state Kurt Campbell misunderstood China’s vice foreign minister Fu Ying’s responses.

Under the assumption that Campbell was able to get an agreement for simultaneous withdrawal, on June 15, the Philippines pulled all its ships from the area. China froze its presence and erected barriers in the lagoon the following month.

As PCG Commodore Jay Tarriela testified in the Philippine Congress: “Right after the Scarborough Shoals standoff, we totally lost control of Bajo de Masinloc. Since 2012 until now, passing through three presidential administrations, from the time of President Aquino, President Duterte, and now President Bongbong Marcos. It is already an open book that the Chinese Coast Guard has complete control of Bajo de Masinloc.”

Therefore, updating Lowell Bautista’s 2013 analysis, at Strike 3 – China now has possession and effective control of Bajo de Masinloc and has been consistently administering the feature and exercising sovereignty over it for the past 13 years.

Instead of resorting to bilateral negotiations which China prefers, the Philippines filed an arbitration case against China on January 2013 and registered it with the Permanent Court of Arbitration at the Hague. with a corresponding ruling on July, 2016.

            Last December 10, China formally complied with its mandatory obligations under UNCLOS by submitting geographic coordinates and nautical charts to the United Nations (UN), that outlined baselines for sea territory around Huangyan Dao (Scarborough Shoal), officially registering a state’s defined outer limits of its territorial sea, continental shelf, and other maritime entitlements, making the information available to all other states for their awareness and reference, and contributing to the safety of navigation to help ships avoid infringing on the coastal state’s jurisdiction and achieve peaceful settlement of any future disputes regarding maritime boundaries.

Conclusion

Before that, President Marcos Jr. signed in November 2024, the National Maritimes Law that severely conflicts with international conventions, including UNCLOS and the 2016 Arbitral Ruling that it incorporated as part of the Act.

I called it a stupid law because it codified Scarborough Shoal’s territorial sea, the Kalayaan Island Group, a Luzon Sea and a 200 nautical mile exclusive economic zone into a so-called “West Philippine Sea” despite external and internal contradictions.

Can we legislate 12 nautical miles off Scarborough Shoal to be our territorial sea, when another state has sovereignty over it?

Can we put the Kalayaan Island Group as a component of any whole when Paragraph 574 of the Arbitral Award rejected any archipelagic claims in the Spratlys?

Can we still constitute a Luzon Sea, when in our Republic Act 9522, our baselines law, we superseded our treaty limits? This will severely reduce our component sea to merely 12 nautical miles of territorial sea.

Can we unilaterally bully our way to `confiscate as our own 200 nautical miles of exclusive economic zone, extending from our baselines west of the Philippines, without consent of five conflicting claimants Vietnam, China, Taiwan, Brunei and Malaysia?

Of course not.

So why are we accusing other disputants of coercive action, dangerous maneuvers and aggressive and illegal activities when they are only putting us in our proper place?            How can Marcos feign legitimacy, when he has replaced diplomacy with boorish barbarism?

It is only the Philippines that is poisoning the waters.

To be continued.

   

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