By Adolfo Quizon Paglinawan

 

Series 11: Forever peace or forever wars

My five-o’clock morning coffee is usually accompanied by an aimless surfing for light entertainment to remove the mild brain fog that comes after waking up, but this time I chanced upon Chinese Ambassador’s speech at the 99^th anniversary of the founding of the China’s People’s Liberation Army.

Jing Quan said “China and the Philippines are neighbors that cannot be moved apart, facing each other across the sea. The history of friendly exchanges spanning thousands of years has shown that peaceful coexistence and mutually beneficial cooperation have always served the fundamental interests of our two peoples.

“Ninety-nine years ago, the Chinese People’s Liberation Army was born at a time when the Chinese nation faced grave peril. From the arduous years of revolution, through the great undertaking of socialist construction, to the New Era’s great journey toward building a strong country and a strong military, the people’s army has always remained inseparable from the people, sharing their aspirations, fortunes and destiny”.

Before the Ambassador offered a toast to the occasion, he made an important qualification: “China remains committed to an independent foreign policy of peace, follows the path of peaceful development, and consistently pursues a national defense policy that is defensive in nature. No matter how developed China becomes, it will never seek hegemony or expansion. China’s armed forces have always been a staunch force for world peace and an important provider of public good for international security. “

Never hegemony or expansion. Hmmm, wouldn’t that be a mouthful?

Sophomoric twang

My next click was definitely not a coincidental topic. A professor of the University of the Philippines was spewing lawfare when on June 30, 2026, academic researchers from Jinan University, Nanjing University, and the Chinese Academy of Social Sciences met in Guangzhou to discuss maritime and territorial issues and asserted that Batanes Islands—located between Luzon and Taiwan—are a “natural geographical extension” of Taiwan and share historical and legal ties with China.

In an interview with Yin Khvat at Taiwan Talks, a certain Ariel Arugay of the UP Department of Political Science, carelessly said:

“If China really claims Batanes Island, then why not file a case before a court instead of relying on the old script of historic claims, when the United Nations Convention on the Law of the Sea and the arbitral award already provide legitimate legal frameworks recognized by the international community.”

To a layman listening to this person, everything could sound authoritative especially when he dropped the line mentioning the “community of nations”.

Obviously speaking from a pea brain, the “professor” does not realize that the issue at hand is one of sovereignty that UNCLOS and the 2016 Arbitral Award have nothing to do with.

UNCLOS does not rule on territorial sovereignty over land or islands because it has no jurisdiction over who owns land territory. (AAward Paragraph 5). The assertions of the Chinese scholars have everything to do with historic titles which again UNCLOS also has nothing to do with (AAward Paragraph 272).

In sum, their claim about Batanes rests on land sovereignty and historic titles, and Arugay wants them to go to court without them and only with UNCLOS and the AAward which are frameworks for maritime (sea) entitlements.

It appears that the professor does not know international law as he is clueless that UNCLOS and the AAward base maritime entitlements on land sovereignty.

What bench was Arugay warming when Taiwan Talks headhunted him? He sounds like a student of Jay Batongbacal, a sad pick who has not read and studied UNCLOS and the AAward thoroughly, a fake “expert” who talks to foreign media at the drop of a coin.

Tremors before a quake?

What I am worried for our country is that the theories posted by Chinese scholars intersect at a dangerous crosshair with the hawkish attitude our defense community has adopted on Taiwan.

I do not think it is even in the table of the Chinese government because China honors our “historic rights” by virtue of treaty limits we inherited from the United States on July 4, 1946 when we received our independence. The Peoples Republic of China has consistently recognized our territorial integrity from the time by Philippine President Ferdinand Edralin Marcos and Chinese Premier Zhou Enlai signed a joint communique establishing diplomatic relations on June 5, 1075, three years before it did with the Americans. As late as July 2016, Chinese Foreign Minister Wang Yi reiterated recognition of the three treaties that gave us our boundaries.

But Marcos Jr has been playing with fire over government pronouncements turning ambiguous about Taiwan, engaging China in doublespeak between security and economic lines even  allowing commodores and rear admirals to visit Ching Lai-te in Taipei, tolerating continuous provocations in the South China Sea, inviting Western forces in joint patrols and military exercises in the subregion, but the most devastating of which is agreeing to “delimit” the Philippines “EEZ” with Japan’s “EEZ” ignoring China in the middle.

So, what happens now when Chinese scholars have established loopholes in the accuracy of our historic and legal positions?

First, that Batanes Islands have never been covered by the 1898 Treaty of Paris. It is above and outside its 20-degree parallel (latitude) stipulation. Thus, it may be said that technically, it is not part of the treaty China recognizes to constitute our limits.

Second, that historically, at the outbreak of World War II. Japan occupied the Batanes Islands and attached it to Taiwan on December 8, 1941 before Masaharu Homma even landed at Lingayen. They say that when Taiwan was surrendered by Japan to China, the Batanes group should have appropriately gone with it, because it was no longer part of the Philippine Islands surrendered by Japan to the United States.

Third, that the Tao people of Langyu, Taiwan are the same people as the Ivatans of Batanes.

I agree with DFA Secretary Teresa Lazaro that the Philippines government should deal only with official state positions rather than the views of individual scholars. “These are academics. Sometimes the academics really—well, they are academics.”

But that is exactly the comfort zone we backed on when we dealt with China on the Scarborough standoff.

The possibility now has become a probability that in case of a hot war with China over Taiwan, China has a leeway acquiring control over the Bashi Channel by annexing the Batanes Islands below it to end the debate once and for all.

This has tremendous geopolitical implications.

First is the control over the Bashi Channel.

The Peoples Liberation Army Air Force (PLAAF) held its first-ever exercise in the Bashi Channel in March 2015, which was followed by a PLA-Navy exercise in waters east of the Bashi Channel in June of the same year. It marked the beginning of PLAAF long-range strategic bomber flights in the Asia-Pacific region. 2015 marked also the time, when the PLA increased its military presence in the Miyako Strait. In 2016, the PLAN’s sole carrier strike group, consisting of the 60,000-ton Liaoning, a retrofitted Soviet-era Admiral Kuznetsov-class multirole aircraft carrier, and its escort vessels, for the first time entered the Western Pacific through the Miyako Strait before entering the South China Sea through the Bashi Channel.

As recent as July 30, a U.S. autonomous sea drone captured footage of what Reuters identified as a Chinese People’s Liberation Army Navy Type 052D guided-missile destroyer operating about 65 miles off Luzon in the Bashi Channel.

More than 26,000 commercial vessels transit through the Luzon Strait area with ship-borne trade worth about $5 trillion moving through the broader South China Sea and Bashi Channel region annually.

A major international chokepoint, the channel bed holds major submarine communication cables carrying roughly 97% of data and telephone traffic connecting the U.S., Japan, and South Asia.

Second, the Batanes Islands are real islands, thus entitled to 200 nautical miles of exclusive economic zone eating into the Pacific Ocean way past the Philippine Sea to the east, and connecting to the South China Sea westwards. China can completely control the Taiwan Strait on the north and the Bashi Channel on the south, as internal waters.

However, if this farfetched scenario happens, the Batanes’s new southern waters cannot go 200nm but will be marked by the Balintang Channel under UNCLOS median policy on territorial sea (Article 15), below which will start the truncated Philippine national territory.

Our problem is Marcos Jr cannot gag the charlatans on the Philippine side because he is in bed with the Americans who wants war.

For the past 10 years since July 2016, we had to deal with lies and confrontation, instead of peace bilateral negotiations with China. What kind of victory is that which has given advantage to the US and Japan but crippled our economic growth and impoverished more Filipinos?

Taming my pen

When I shared this with former Ambassador Rigoberto Tiglao, he was quick to the draw to temper my hypertension. I am quoting his inputs verbatim which start here without quotation marks.

The Treaty of Paris of 1898 did indeed contain a geographic defect: its northern boundary was drawn roughly along the 20th parallel north, which left the Batanes group north of the treaty polygon. The 1934 Constitutional Convention itself explicitly recognized this problem, saying that under the Paris delimitation the Batanes Islands were not included.

The Philippines dealt with that problem principally through actual sovereignty and constitutional language, rather than by simply redrawing the Treaty of Paris line.

First, Batanes had already been under Spanish administration as part of the Philippines long before 1898. Spain formally incorporated Batanes into its Philippine administration in 1783, and after the United States took possession of the Philippines, the American colonial government continued to administer Batanes.

The Philippine legislature subsequently established Batanes as a province. Thus, there was continuity of governmental authority rather than Batanes being treated as foreign territory.

The Philippine government today emphasizes this continuous, peaceful exercise of state authority—what customary international law calls effectivités.

Second, there was the Treaty of Washington of November 7, 1900 between Spain and the United States. It was intended to remove uncertainty created by the Paris Treaty and provided for Spain’s relinquishment to the United States of islands belonging to the Philippine archipelago but lying outside the lines described in Article III of the Treaty of Paris.

There is, however, an important historical/legal wrinkle: the 1934 Constitutional Convention did not regard the Treaty of Washington as having clearly solved the Batanes problem. Its Committee on Territorial Delimitation expressly said Batanes was outside not only the Paris limits but also the Washington treaty and the 1930 US-UK convention. (The Treaty of Washington “particularly” included only “Cagayan, Sum and Sibutu, and the dependencies”. Cagayan Sum here refers to Cagayan de Sulu in the southernmost part of the Philippines. – Ed)

The 1935 Constitution supplied the crucial catch-all.

The framers therefore drafted Article I of the 1935 Constitution to include not only the territories covered by the treaties but also: “all territory over which the present Government of the Philippine Islands exercises jurisdiction.”

The Constitutional Convention records are unusually explicit about why this language was included. When Delegate Buslon (Teofilo G. Buslon representing the third district of Bohol) asked what territory this additional phrase referred to, Committee chairman Nicolas Buendia (one of the founding members of the Philippine Independent Church and representing the first district of Bulacan) replied that it referred to the Batanes Islands. Asked whether it referred to Batanes alone, he answered: “Sí, Señor.”

That is probably the most important piece of evidence for your question. So the sequence is essentially:

• 1898 Treaty of Paris accidentally leaves Batanes outside the coordinate box. 1900 Treaty of Washington addresses outlying Philippine islands but leaves some ambiguity regarding Batanes. Continuous US/Philippine administration of Batanes. 1935 Constitution deliberately adds “all territory over which the present Government… exercises jurisdiction” to encompass Batanes.
• The 1986 Constitutional Commission later discussed precisely this history. Its records state that even though Batanes was excluded from the treaty boundaries, it could fall under the 1935 Constitution’s category of territories over which the Philippine government exercised jurisdiction.
• The 1973 Constitution further used the broader formulation covering territories belonging to the Philippines by “historic right or legal title.”

Critical Date

Of course, I agree with Ambassador Tiglao with all of the foregoing well taken.

But our strongest point is as he said effectivités – the practical acts of effective control, administration, and governance that a country carries out to demonstrate its real authority over a specific piece of land or water.

I submit that in international law, these real-world actions help support a government’s claim to ownership of a territory.

But our strongest can prove to also be our Achilles heel. Effectivités cannot easily overturn a clear, official legal document or treaty. They mostly serve as backup proof when formal ownership is unclear or disputed.

In this case, not only did a convention, the 1898 Treaty of Paris not include the Batanes group, but historic rights, as in the history of Taiwan even favor the Chinese side.

Nonetheless, China can always take Batanes as additional buffer against the Philippines if in the event of a hot war between the US and Japan vs China, especially about Taiwan, the Philippines joins the conflict actively or passively by allowing its EDCA lily pads to be used by either hegemon as forward operating bases or jump-off points.

Effective control can be overtaken because just as in the Scarbough Shoal, the feature was neither secured by historic title or conventional treaty.

Before the Scarborough standoff, there was hardly debate much less lawfare, as to who is sovereign in Scarborough Shoal.

The Philippines acted as the sovereign and exercised effective jurisdiction over Scarborough Shoal— positioning it within the Zambales province administrative area. The Philippine Navy built and maintained markers and structural installations on the shoal during the 1980s and 1990s. Philippine maritime and naval forces regularly patrolled the area and regulated local activities without continuous foreign interference.

But we are no longer in possessions of the feature. This is what Arugay, Carpio, Tarriela and Teodoro-types did not understand when former President Rodrigo Duterte said the only way to recover Scarbough outside of diplomacy and cooperation is through war.

Since 2016, we have been chasing our own tail because our thinking caps are dominated  by lawyers and not diplomats.

The unpractical and legalistic minds of these bozos have rested on mythical laurels of an arbitral award, and keeps on loading the arguments, unmindful the dictum as “Critical Date” rule:  Actions taken by a state after a legal dispute do not count and are generally disregarded. This stops countries from performing self-serving acts on the ground to attempt to improve a weak legal position once a dispute has already started.

We started on the wrong feet. Instead of using the China-ASEAN 2002 Declaration of Conduct bilateral mechanisms, we insisted on buffering ASEAN to serve as a multilateral front. In the first submission of Secretary Albert del Rosario to the Arbitral  Tribunal on July 7, 2015, he rubbed the DOC spirit the wrong way by leaning on its non-binding effect and the absence of a Code in order to justify bringing our case to arbitration instead as an ultimate resort.

After the ruling a year after, we proceeded to further build up our case by locking our options inside UNCLOS and the Arbitral Award by codifying them, creating a West Philippine Sea out of precedent legal and factual novations in the Scarborough Shoal,  a Luzon Sea and a Kalayaan Island Group, and creating mythical exclusive economic zones over contested waters and unilaterally delimiting a phantom West Philippine Sea.

Conclusion

This proves that our present strategy on this issue is n’est pas efficace(not achieving any good result). Even among our people, the recent July Pulse Asia’s most urgent national concerns show our sovereignty attracts only 3% of the population.

My prognosis is if  we continue poking the dragon or a violent clash occurs between China and our military ally the United States and/or with our “comprehensive and strategic” partner Japan, or any of their cabal, anywhere in the first and second island chain, the Batanes Islands is there for China’s taking.

This neither as a hegemon or expansionist for China to take as an option, but a mere assumption of its “active defense” policy to prevent a greater regional war and promote forever peace.

   

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