Chronological order of our claim in the SCS

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For a clearer understanding of our claim in the South China Sea, we should analyze in chronological order the claim of the parties over those islets, reefs and areas underneath the seabed, specifically before the United Nations Convention on the Law of the Sea opted to stretch the territorial waters of countries adjacent to the sea from 12 to 200 miles, referring to the new concept of exclusive economic zone.

Before we filed our claim at the Permanent Court of Arbitration, we came across a map known as the “Murillo Map” indicating that the whole of SCS belongs to the Philippines. The commissioned by Fr. Murillo Velarde titled Carta hydrographica y chonographica de las Islas Filipinas was made in 1734. It was drawn and engraved by skilled Filipino artisans Francisco Suarez and Nicolas de la Cruz.

Prior to the submission for arbitration of our claim in 2014, we have never mentioned anything like the “Murillo Map” as evidence possibly because that would make the country look ridiculous before the panel of arbitrators. Even if we call it the “Mother of All Philippine Maps,” it cost the Filipino buyer Mel Velarde P12 million for an “antique” map nobody would seriously consider. As one says, he bought back an item that was looted from when the British invaded Manila in 1762.

If that map is admitted on the assumption it is genuine, Spain could as well submit its colonial map showing that it owns the whole of Latin America, just as Britain could present a map proving that the sun never sets in the British Empire, meaning there is daylight in every corner of the globe ruled by the British empire.

In recent history, only the Treaty of Paris signed on December 10, 1898 between Spain and the US serves as valid evidence defining our national boundaries. Others say it was not a peace treaty but sale of an indefensible colonial territory to the tune of $20 million. Specifically, Article III demarcated the boundary of the Philippines Islands, to quote paragraph 2:

“A line running from west to east along or near the twentieth parallel of north latitude, and through the middle of the navigable channel of Bacchi, from the one hundred and eighteenth to the one hundred and eighteenth to the one hundred and twenty-seventh degree meridian of longitude east of Greenwich, thence along the parallel and forty-five minutes north latitude to its intersection with the meridian of longitude one hundred and nineteen degrees and thirty-five minutes east of Greenwich to the parallel of latitude seven degrees and forty minutes north to its intersection with the one hundred and sixteenth degree meridian of longitude east of Greenwich, and thence along the one hundred and eighteenth degree meridian of longitude east of Greenwich to the point of beginning.”

The significance of the treaty is that it demarcated, for the first time, the boundary of the Philippine archipelago. By legal implication, all that is outside the demarcated boundary is presumed not to belong to the Philippines. Even if we take it that the Spratly islands have not been discovered or assessed of their potential resources, nonetheless the line indicates that they are outside the treaty. The latitudinal line tilted closer to the islands of Palawan as it reaches the Spratly or Kalayaan group of islands as if to exclude the Spratly islands in our boundary.

Barely two years after the ratification of the Treaty of Paris, the Washington Treaty was signed on November 7, 1900. In that one Article treaty, “Spain relinquishes to the United States all title and claim of title; which she may have had at the time of the conclusion of the Treaty of Peace of Paris, to any and all islands belonging to the Philippine Archipelago, lying outside the lines described in Article III of that Treaty and particularly to the islands of Cagayan, Sulu and Sibutu and their dependencies, and agrees that all such islands shall be comprehended in the cession of the Archipelago as fully as if they had been expressly included within those lines.”

The US paid an additional $100,000 to secure the consent of Spain. The treaty has nothing to do with the disputed Spratly islands as others would insinuate.

In January 1935, the Committee of Reviewing Water and Land Maps of China, (ROC) now Taiwan, published both in Chinese names and English names, 132 insular features in the South China Sea. This was followed in April 1935 by the publication of the Committee of Reviewing Water and Land Maps of China (ROC) indicating locations of features in the South China Sea.

In 1947, a Filipino seaman by the name of Tomas Cloma “discovered” certain island in the Spratlys. In 1950, Philippine President Elpidio Quirino said that “as long as China (ROC) held the Spratlys, the Philippines would not press its claim. Interpreted otherwise, if the islands are controlled by the People’s Republic of China, the Philippines would press its claim on the ground that its proximity is a threat to our national security.

After World War II, a peace treaty was concluded in San Francisco and signed on September 8, 1951. It provided in Chapter II, Territory, Article 2, Section b, and Subsection (i) that “Japan renounced all right, title and claim to the Spratly islands and to the Paracel islands.” The Philippines ratified the treaty on July 16, 1956. The Philippine delegation was composed of Carlos P. Romulo, J. M. Elizalde, Vicente Francisco, Diosdado Macapagal, Emilano V. Tirona, and Vicente G. Sinco.

The Treaty has to be interpreted in the context that Japan occupied the Spratly and Paracel Islands during the war. It is being asked to renounce its right, title and claim over those islands was a mandate to Japan to return them to China.

In less than a year after the San Francisco Treaty was concluded, Republic of China and Japan signed a peace agreement on April 28, 1952. Article 2 of the Peace agreement provides, to quote: “It recognizes under Article 2 of the Treaty of Peace which Japan signed at the Treaty of San Francisco on September 8, 1951 x x x, Japan renounced all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratly islands and the Paracel islands.” The peace treaty has reference to Taiwan’s claim over these islands because of the on-going civil war between the China and Taiwan.

We must take note that before the final draft of the San Francisco Peace Treaty was issued in September, 1951, Foreign Minister Zhou Enlai stated China’s position, that the consignment of the islands in the SCS to Taiwan was illegal and should not be recognized. Besides, China was protesting to its exclusion to the negotiation. Specifically, China claimed that Xisha (Paracel Islands), Nansha (Spratly Islands) and Dongsha (Pratas Islands) in the South China Sea were actually part of China. The treaty either did not address these islands, or that Pratas Islands be turned over to the UN as trusteeship territories.

Looking at the dates, one wonders how the PAC arrived at the decision when documents show that Spratly is outside of our territory. On the contrary, it was the adoption of the 200-mile limit by UNCLOS that created confusion resulting in the overlapping of claims over territorial waters plus our lack of understanding of such concepts of sovereignty over these islands to differentiate it from sovereign right over the exclusive economic zone notwithstanding that Senator Arturo Tolentino made a unique demarcation of our archipelago and called it the “Archipelagic Doctrine.”

Poor slogan to uphold freedom of navigation

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 "This could put to end the hospitality and courtesy which we have been receiving from China."

While our President continues to rant in asserting an independent foreign policy, the government hangs on to the US-sponsored “commitment” to uphold the freedom of navigation, overflight and other lawful uses of the South China Sea. To quote the press release issued by the Department of Foreign Affairs made after the Manila and Washington concluded the two-day 8th Bilateral Strategic Dialogue, “[b]oth sides recognize the importance of a strong Philippine-US alliance in enhancing security cooperation and promoting regional security and prosperity….Both sides also emphasized the importance of concluding an effective and substantive Code of Conduct that would not prejudice the rights under international law of both claimant states and non-claimant states in the SACS.”

Our participation in the US military exercise to assure us of our rights as a claimant state to the South China Sea is rather abrasive considering that there has been no instance by China or any other country in the region blocking the free passage of navigation in the SCS. Our close call of a direct conflict with China in the Scarborough Shoal cannot be considered an attempt to stall the freedom of navigation but an issue where China wanted to rescue their fishermen who were arrested by our Navy, caused by the misinformation sent by the former Secretary of Foreign Affairs Albert del Rosario.

To begin with, our partnership with the US to help us “assert” our freedom of navigation is ludicrous considering that it is being used as cover to compel us to stick to an alliance solely for the protection of its own interest. Note that none of the feared incidents happened, specifically of the US Navy gesturing to come to our assistance in the event of an attempt to interdict our freedom of navigation. In fact, this security arrangement has generated tension, even as the alliance refuses to identify the anticipated enemy that allegedly threatens to block the waterway.

The presence of a foreign naval power is only justified by that thin veil of having an alliance with the Philippines raising the banner of ensuring freedom of navigation to itself. This serves as a dilemma. Should the Philippines openly identify China as an enemy even for the purpose of justifying the bilateral exercise, it runs the risk of throwing overboard all those economic and developmental agreements we entered into with China. That spoils altogether our efforts to deepen our understanding with China, hoping it will serve as our contribution to stop the increasing militarization in the SCS.

That could put to an end the hospitality and courtesy which we have been receiving from China, and collaterally treating it as an enemy by virtue of our defense treaty with the US. That could possibly put to an end such humanitarian assistance, disaster and rescue mission from China or even make it difficult for our fishermen to catch fish in areas which we have no effective control like what happened in the Scarborough Shoal. All these could happen if we decide to identify China as our enemy in conjunction to the desire of the US, which we know is more interested in economically and politically isolating China.

It would even be more dangerous to endorse the hostile attempt of the US to chart a dangerous course of testing just how far the Chinese Navy would challenge its ships patrolling close to the 12-mile restricted territorial sea circumferential to those islands it presently occupies and on which it has effectively installed sensitive military and communications equipment. This could put our alliance to a litmus test just how far our ships would follow that dangerous course of taunting the Chinese Navy.

Admittedly, the US Navy is treated differently by the Chinese Navy. It is the US navy that is bent on intruding over those waters to put to a test China‘s determination. But then the situation was far different when the so-called gunboat diplomacy worked against China’s rickety junk ships. Today, the Chinese Navy is equally packed with the same or even stronger weapons to deter this challenge. Our joining in the military exercise to assert our misplaced claim of freedom of navigation could elevate the Philippine Navy to the category of the US Navy considered as an enemy attempting to intrude into its territory.

The China is fully aware that the US Navy is not engaged in the exercise of freedom of navigation but in conducting a routine naval patrol, an objective far different from its avowed claim. On the other hand, the Philippines, has every right from the standpoint of international law and from our right to freedom of navigation as an adjacent state. The Philippines has the right to patrol, to engage in rescue and protect its fishermen, to engage in disaster operations, to preemptive attempts to land prohibited goods and entry of illegal immigrants. There are many activities our navy can do with the active cooperation of navies from adjacent states to promote trust and friendship and even encourage people-to-people trading among states in the region.

Our participation in the military exercise is to purposely test our freedom of navigation will put asunder all our efforts to achieve friendship and cooperation with China. China and other countries in the region which have bad historical experience with the US like Vietnam have every right to question the regular patrol of the US in the SCS. It is to them an offshore exercise of hegemony. It conveys an implied message that this body of water and territories adjacent to it remains subject to its exclusive influence and to a certain extent controlled by the US. This has a shade of the US Monroe Doctrine—to declare as off-limits to European colonization of South America.

It is in light of this interpretation that some states see the presence of the US Navy as annoying. As it steps up to assert their so-called right to freedom of navigation, the attitude of the local population is slowly transformed to one of seeing the US presence as a threat to their own security.

Finally, the presence of the US navy patrolling the SCS is seen as a liability than an advantage to them. Before that, the concept of freedom of navigation was virtually non-existent to the local population. The claims over these islands only intensified when a naval foreign power began to assert the right of navigation to its naval but addressed to countries in the region. Of course, this was due to the discovery of natural gas and other minerals in the area, but this does not detract the fact that the presence of the US navy is asserting its power over and above the interest of the claimant states with China eyed as its principal target.

The fuss about the Sibutu Strait

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After the accidental ramming of our fishing boat by an unidentified Chinese vessel near the disputed Scarborough Shoal, which saw the local media howling like toddlers in decrying the incident as “bullying” and Leni Robredo cashing in for media mileage, now here we go again protesting the passage of Chinese warships, led by China’s aircraft carrier CV-16 Liaoning, claiming to have violated our territorial waters by passing through the Sibutu Strait and Balabac Island without prior notification.

According to Western Military Command Chief, Lt. Gen. Carlito Sobejana, there have been 13 instances of Chinese warships passing through the narrow strait since June 2019, and in all instances, the Chinese warships turned off their automatic identification system and could not be contacted though radio.

As described by National Security Adviser Hermogenes Esperon, there has lately been a “swarming” of Chinese vessels in and around the islands occupied by the Philippines in the South China Sea. Defense Secretary Delfin Lorenzana then suggested to President Rodrigo Duterte to take up the matter with President Xi Jinping during his visit to China.

For the clarification of many, Sibuto Strait is a narrow passageway with an 29-kilometer distance separating the Philippine island of Tawi Tawi and Borneo. The Washington Treaty on November 7, 1900 delineated Cagayan, Sulu and Sibutu as the boundary of the archipelago acquired by the US from Spain. The Sibuto Strait is recognized by the United Nations Convention on the Law of the Sea as an international waterway where ships of all flags, through customary international law, enjoy the right of innocent passage.

In the West’s Encyclopedia of American Law, it defines a strait as a narrow body of water connecting two areas of the high seas, and is used in international navigation. There shall be no suspension or stoppage of foreign ships passing through the strait. Because of the acuteness of the international waterway, vessels passing though it cannot avoid “trespassing” or “violating” the territorial waters of the adjacent state which, under international law, extends up to 12 miles. As customary practice, passing vessels are allowed with certain limitations that they cannot suspend/stop from navigating while within the passageway.

The fact that some straits have become necessity to international shipping, commerce and navigation, international law conventions “internationalized” them, and that includes the Sibutu Strait. Permission or clearance for passage from the adjacent or host states is no longer necessary. The internationalization of the strait by customary practice or through convention such as our ratification of the UNCLOS has somewhat made the host country or adjacent state to partially lost their right to claim full jurisdiction on those waters adjacent to their shoreline like preventing those vessels passing through, just as vessels can assert their right to innocent passage.

The passage of Chinese warships through the Sibutu Strait and Balabac Island may have traversed our territorial waters. Even that, there is no need for us to enact a law that would declare the Strait an international waterway as suggested by Supreme Court Associate Justice Antonio Carpio. Such proposal would only make us ridiculous, more so if the intent of the law is to selectively allow and/or prevent other vessels from passing through it. Our ratification of the UNCLOS is more than enough to commit us to the free passage of navigation under international law.

It was rather exaggerated for Esperon to characterize the number of Chinese vessels in the South China Sea as “swarming.” Maybe he has his in mind bees attacking us from all sides. The Chinese vessels simply navigated through the strait which we uncannily are making a loud noise of protestations. Other warships—US, Australia, the UK and Japanese navieshave been passing through it but we never made an issue of their passage, for understandably, they are our allies and have not violated the conditions regarding the right of innocent passage.

It would be undiplomatic for President Duterte to take up the matter of Chinese warships with China’s President Xi Jinping.

First, the subject matter of passage is trivial that China did not even consider that an incident, except of course for those anti-Chinese hecklers. Second, China would be appalled at our move much that Chinese vessels complied the rules concerning the passage of vessels in straits enjoying the right of innocent passage. Third, clearance and permission from the host state is not required under the UNCLOS. Fourth, to insist on our new regulation would unduly strain our relations with China to the delight of the US.

In fact, the US Navy has been crisscrossing the Philippine archipelago anytime of the year, ignoring our archipelagic doctrine, plying through the great bodies of territorial waters separating the islands of Palawan, Negros and Mindanao, and using as their passageway to enter the South China Sea though the narrow channel separating Sorsogon and Samar in San Bernardino, and the Bashi Channel that separates Taiwan and the Philippines.

Moreover, we cannot even compel the US navy that before entering Philippine territory, to declare that its warships do not carry any nuclear weapons pursuant to Section 5, Article II of the Constitution. Rather, the US merely refuses to confirm or deny such query from the Philippine government.

According to Presidential Spokesman Salvador Panelo, “Beginning today, all foreign vessels passing through our territorial waters must notify and get clearance from the proper government authority. “Either we get compliance in a friendly manner or we enforce it in an unfriendly manner.” But did it not come to his mind as lawyer that we do not have that right to demand compliance under the UNCLOS convention? Panelo even failed to anticipate that diplomatic protocol demand that vessels passing through the strait should observe the rules and limitations, and not for the sovereign state to seek the permission of the host state. This is assumed because countries that geographically have narrow straits and is used by countries for international navigation as members of UNCLOS know the rules upon which passing vessels must observe.

The howl made by Lorenzana, Carpio and Batongbacal are misplaced. Some suspect that their noise is intended to embarrass the President. Batongbacal as head of the UP Institute for Maritime Affairs should know what he is talking about. Vessels passing through an international waterway need not seek permission from the host state or much would more for states to give its consent because their adherence and ratification of the convention already amounts to that. In fact, we can even say that it should be the US that should be prevented from passing through the Sibuto Strait for the simple logic that it has refused to ratify the UNCLOS, and that means it rejects all the provisions regarding the use of straits and inland navigable rivers.