Among the four elements of the State, Territory is the only one that is fixed and immutable. The people that comprise the State change. The government of a State also changes. And its sovereignty, that metaphysical intangible element which vests the State to demand obligation from the people also changes as far as the details of such obligations are concerned.
Territory however fixed can be altered by a cataclysmic geographical upheaval. But even such upheaval can only do limited alteration. It takes millions of years of drip-drip natural alteration on a national territory for it to become perceptibly changed.
The political fact remains: the national territory being a fixed matter is truly the only concrete tangible element the present generation can bequeath unto the future descendants.
Is Sabah Syndrome happening again?
In 1963, during the birth of the Federal State of Malaysia, the Philippines lost a huge chunk of its Southern Territory – the territory of Sabah. The territory was leased by the Sulu Sultanate to the British Syndicate of Alfred Dent and Baron von Overback which was succeeded by the British North Borneo Company as Successor in Interest operating it until 1963.
In 1962, the year preceding the founding of Malaysia, the Filipinos living in Sabah were convinced by their leader Stephens Mohammad, also a Filipino and a relative of the Sulu Sultanate, to vote in the Plebiscite to become part of the nascent Federal State of Malaysia. Yes it is a historical fact and irony that the leader of Sabah from its inception as a Federal State of Malaysia was a Filipino. He enabled the Peninsular Malaysians to claim sovereignty over a Philippine territory.
The leaders in Manila were in deep sleep until it was a fait accompli. Pres. Diosdado Macapagal protested. But it was for naught. When Malaysians shouted MERDEKA in Kuala Lumpur, one of those who stood in the stage was Stephens Mohammad, the Filipino who turned Malaysian citizen and became the State Chief Minister. Sabah de jure and de facto became one of the Federated States of Malaysia.
Magallona vs Ermita and UNCLOS
The case of Magallona vs Ermita (G.R. No. 187167, August 16, 2011) pleaded to the Supreme Court to declare RA 9522 as unconstitutional because it diminishes our national territory and infringes on our sovereignty. But on the contrary, the decision judicially declared that the national territory of the Philippine Archipelago is intact under UNCLOS and has in fact expanded. By and large, the Philippines’ membership in and ratification of our membership in UNCLOS in 1984 was territorially beneficial. Our subsequent adaptation of UNCLOS III through RA No. 9522 in 2009 expanded our Territorial Sea the Court intoned. It disabused the fears and reservations of the petitioner who prayed that RA 9522 be declared unconstitutional.
While before our national territory was limited now under UNCLOS III we have 1) sovereignty up to 12 nautical miles from our base line as part of our Territorial Sea, 2) another 12 nautical miles as part of our Contiguous Zone, 3) we have 200 nautical miles from the baseline as our Exclusive Economic Zone, and 4) UNCLOS gave the Philippines, an Archipelagic State the right to establish an extended Continental Shelf beyond 200 nautical miles “whenever the continental margin extends beyond 200 nautical miles.” (Our claim of the Philippine Rise/Benham Rise is anchored on this provision.)
When RA 9522 is applied in the West Philippine Sea, our claims over Panatag Shoal/Scarborough Shoal or Bajo de Masinloc and the Spratleys gained statutory gravitas. And in Magallona vs Ermita these territories are judicially confirmed as part of the Philippine 200 miles Exclusive Economic Zone.
But more than UNCLOS and RA9522 we have sovereignty and jurisdictional claims over these territorial seas in our Constitution.
Article II of the 1987 Constitution
Article II of the Constitution is almost lyrical when it describes the National Territory. It states: ”xxx…and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas…..xxx”
Anyone who will not perceived the West Philippine Sea in these lines of Article II of the 1987 Constitution is blind. The Philippine claim on the West Philippine Sea is embedded in the Constitution. More than UNCLOS, the Constitution declares The West Philippine Sea is ours. It is part of our national territory.
Our claim of the Spratly started in the 1954. Tomas Cloma, the self styled Filipino fisherman mariner from Bohol, found the uninhabited island group of white sand dunes full of birds. He declared it a micro nation in 1956. Unknown to him, the Chinese bit him by less than a decade when it claimed the whole South China Sea in an 11 dash line map. His notice of declaration of micro nation resulted in Chiang Kai Shek sending the troops of Nationalist Chinese from Taiwan to occupy the biggest island in the area, Taiping.
Afraid of a war with Taiwan, Cloma offered his discovery to the Philippine government. But it was only during Pres Marcos administration that a very serious occupation plan was hatched, enacted, carried out, and held.
I still have goose bumps every time I recall the story of Gen. Rodolfo Biazon on how he carried out the command of the Commander in Chief, then Pres. Marcos to occupy Pagasa Island in the Spratleys in 1968. He led a small band of Philippine Marines on a secret mission to plant the Philippine Flag in the island and hold the island until the main occupation force arrived. Since that heroic night when they planted the Philippine flag, Pagasa remains a Philippine territory. It stands as a beacon and symbol of the our sovereignty and jurisdiction over the Spratly.
Ten years later Pres Ferdinand Marcos declared Philippine sovereignty on Pagasa Island and the other islets and shoals in the Spratly. Article II of the 1987 Constitution recognized these territories by the lines “other territories over which the Philippines has sovereignty and jurisdiction.” Sabah is also part of this regime of “other territories.”
The article of Alexander L. Vuving on May 6, 2016 issue of The Diplomat gave a detailed enumeration and iteration of which country occupy what in the Spratly. Reading through it makes one realize, it is a helter-skelter island grabbing by everyone else other than China and the Philippines.
The West Philippine Sea is slipping away
In 1994, two years after we kicked out the US Bases from Subic and Clark, the Chinese built thatch stilt rip rap structures in Mischief Reef. By 1995, they occupied the area. Their public announcement then was “These are resting places for Chinese fishermen.” Today 24 years later, Mischief Reef is a full military garrison – a fixed anchored “unsinkable aircraft carrier.” No more pretensions that it is for the fishermen.
In addition to Mischief Reef, the Chinese are constructing military facilities in Subi Reef, and Fiery Cross Reef. These territories are named by the Philippines Panganiban Reef (Mischief Reef), Zamora Reef (Subi Reef), and Kagitingan Reef (Fiery Cross Reef).
The Chinese incursions were well strategized and thought through. They did not seize an island or islands. That would be bloody like their occupation of the Paracels, seizing it from the Vietnamese which resulted in a limited war with the South Vietnamese Navy in January 1974. They choose reefs, a sea outcrop of rocks only visible during low tide. Under UNCLOS these islands cannot be use to established a territory since it cannot support human life.
But the Chinese have a protracted plan. Their thatch stilt rip rap “fishermen’s resting area” was the softest target for occupation. The Philippines did not raise an issue over it including Pres. Ramos. On the contrary he was singing karaoke with Jiang Zemin during the latter’s State visit to the Philippines in November 1996 – a year after intelligence pictures of these structures were published all over the world.
Pres. Ramos was the first Chief Executive to witness our territory in The West Philippine Sea slipping away. The monster that was slowly gobbling was announced to the world in 1947 but in the 1990s nobody remembered except the hardnosed South China Sea scholars in the classrooms of universities. To the people of South East Asian Nations it was still cloak in pseudo military sea fishermen militia cover. The monster is the Chinese Nine Dash Line claim of the whole South China Sea created by the Middle Kingdom.
The Nine Dash Line
This delineation first appeared in a Chinese Map of the South China Sea in 1947 made by Yang Huairen under Chiang Kai Shek. In its original there were 11 dashes marking a crude delineation of Chinese territorial sea in the South China Sea. The Chinese Communist Party (CCP) who took over China two years later resurrected the same map but remove two lines near the island of Hainan. This was in 1952 the year they made an international claim of the South China Sea as Chinese Territory – all 2,000,000 square kilometers of it. The CCP did not care to give any geographical demarcating coordinates. They only gave the crude nine dash lines taken from the map of Chinese cartographer Yang Huairen.
Thus historically China effected its claim of the South China Sea in the following years: in 1952 when they put out the map of the Nine Dash Lines, in 1974 when they had a short war with South Vietnam for the Paracels, in 1994 when they erected those thatch stilt rip rap structures, in the 2012 Scarborough standoff with the Philippines that resulted into Chinese control of the shoal, and in 1915 when China started pumping sands into Mischief Reef to build the first artificial island, now a full military garrison.
The so-called Nine Dash Line according to Former Secretary of Foreign Affairs Albert del Rosario is the “crux of the problem.”In it China lays claim to almost all of the West Philippine Sea. He added that, it is “illegal, arbitrary, and bereft of any basis or validity under international law.”
The so-called Nine Dash Line is the sum total of our territorial fears in The West Philippine Sea – from the Western Seaboard of Balabac Island, South of Palawan up to the Western Sea Board of the Batanes Group of Islands in the Northern Philippines are gobbled up by this illegal monster created by the Chinese. This runs smack into our Constitutional, Statutory, Historical, and Treaty Rights.
It is simply treasonous for any Filipino to countenance such aberration. But many do. Pres Ramos by omission countenanced it. In six years time, he never spoke about it. Pres Estrada kept the silence in his short stint as president. Pres Arroyo did the worst. She did not only cavort with the Chinese, she colluded with the Chinese encroachment by signing a Joint Seismic Study with them inside the West Philippine Sea (which on their side they claimed as Chinese Territory). But the present administration beat them all by its omission, appeasement, and collusion with the Chinese occupiers.
This national security problem came to a boil in 2012 at the Panatag (Scarborough) Shoal standoff. The result of which is Chinese outright control of the Shoal up to the present. That incident brought Pres Aquino to seek redress in the International Court of Arbitration in The Hague.
PACTA SUNT SERVANDA
The International Arbitration Tribunal (IAT) is a body that settles international disputes including disputes under UNCLOS. The finest moment of the Aquino administration was bringing the West Philippine Sea dispute over the Nine Dash Line of China to the IAT. The other finest moment of the Aquino Administration was assembling the best and the brightest among Filipinos to assist the International Barristers who defended our case at the IAT.
China was given a seat in the proceedings. It was allotted time for presentation of its case and rebuttal of whatever evidence the Philippine government will present. But China snubbed the proceedings. It did not present its case nor did it present rebuttal evidence against the Philippines.
Our legal theory, although intricate in its details, is very plain and simple: Pacta Sunt Servanda. Members of a Treaty must and has the obligation to follow/implement/observe the Treaty it signed and ratified. In the 1968 Vienna Convention on Treaties, the subsequent document for signing by the members has in its Preamble the doctrine PACTA SUNT SERVANDA, members has the obligation to follow the Treaty they signed. China and the Philippines signed and ratified that Vienna Convention on Treaties. Thus China and the Philippines are under obligation to follow the Treaties they sign and ratify.
The Treaty on UNCLOS, which China and the Philippines both signed and ratified, was the core of our argument against China. We complained that China’s Nine Dash Line violated our national rights under UNCLOS. It encroaches into our 200 miles Exclusive Economic Zone and violates our historical rights over these areas. Our panel presented 17th Century Phillipine Islands Map portraying the Panatag Shoal and the Spratly as part of Las Islas de Filipinas.
In international law, the decision of the panel of experts was earth shaking. The Nine Dash Line of China was declared invalid and it quashed Chinese claims of sovereignty over the South China Sea. Collaterally, Vietnam’s claims on the Paracels is affirmed. So is the Exclusive Economic Zones off Natuna Islands in Indonesia. So are the claims of Briunie and Malaysia.
The deliberation of this decision and the ominous defeat in the Arbitral Tribunal of China was the context of the artificial island building and military construction binge in the Spratly Islands by China. Its leadership wants to establish a de facto control of the territory even if they cannot have it de jure.
This is where we are in the West Philippine Sea today. We defeated The Nine Dash Line Monster in the International Court. But we end up with the de facto islands built by the Chinese with military facilities and its de facto control of the sea lanes around the whole of West Philippine Sea in particular as well the whole South China Sea.
To Deter War Prepare for War
Territorial grab is a Casus Belli (Cause for War) in ancient times and the pre-modern times. In modern times tolerance prevails, especially when there is an acute imbalance of power. The last big war fought over a territory was the Falklands War between the British and Argentina in 1982. Experts believe that kind of war will come to the South China Sea.
In this tempest there is a resigned foreboding among Filipinos. There is nothing we can do seems to be the attitude. The attitude starts at the top of the present administration, the President. His aggressive all out force against small time drug elements is unmatched by his utter helpless attitude towards the West Philippine Sea. The Chinese cannot have a better partner in the Office of the President of the Philippines.
But we are not helpless. We have in us 100 million Filipinos who sings daily in their formative years the National song Lupang Hinirang where the last line intones “Ng mamatay ng dahil sa iyo!” To die for you our mother land!
“To deter war we need to prepare for war” is a Western slogan which carries profound truth. The Philippines must prepare for war in the West Philippine Sea. That war will come. It will come because the West Philippine Sea is the longest line in the so-called First Island Chain. This is the island chain that China salivates to break so that it can have an easy access to the Pacific Ocean. It starts in the Kurils up North of Japan, down to Japan Islands group that ends in the Senkakus of the Ryukyu Islands near Taiwan, then island of Taiwan, and finally the Philippine Archipelago.
These islands are like a Gordian knot that China cannot break since the pre-modern times. The constant sorties by Chinese military aircrafts and Navy vessels out into the Pacific through the Bashe Channel north of Batanes and circling through the East China Sea in the Senkakus of the Ryukyus Islands manifest this ever lingering itch in China to break the First Island Chain. The West Philippine Sea is but an incident in this over all Chinese Security Strategy.
Therefore the Philippine must prepare for the eventuality of war in the West Philippine Sea.
Old Allies Forge New Alliances
Our national preoccupation with the less important matters is blinding us in our national security needs. To strengthen our position in the West Philippine Sea we need to do the following:
- Initiate economic and security integration with Taiwan and Japan
The Philippines needs to expand massively in the economic front to be able to afford to defend the West Philippine Sea. A bold economic integration with Japan and Taiwan will be a natural direction. We are in the same boat. China is salivating after our territories. Combining our economies will be plus for all. The combined market of our countries will be 250M. The combined GDP is roughly $6T. At 2% of GDP defense spending together we can put up a $120B annually. That is an anti China Defense Budget.
The Economic Benefits for the Philippines of this Economic Integration is enormous. Our population is more than 100M. More than one half of that is lower than 24 years old. We have what Taiwan and Japan needs – unlimited labor. The free flow of labor and goods between our borders will make us stronger and bigger. The growth of remittance from OFWs from these countries will absorb the projected decrease of remittance from the Middle East. Together we can reorient our domestic economies to be secure from Chinese pressures.
A. Reaffirm our Mutual Defense Treaty with the US
The Philippine-US Alliance is on rehab. It has been damaged by this present administration who wants appeasement with the country that invaded our territory. This reckless bogus independent foreign policy weakened our position in the West Philippine Sea.
We must reaffirm the Alliance with the US. The reaffirmation must include capacity build up for our Navy and our Air Force. We must abandon the policy of Credible Defense. The Philippines needs a Strategic Defense Buildup to deter China from encroaching in the West Philippine Sea. The US can help us to achieve that especially now that they have a strategic military near peer competition with China.
Our value to this alliance with the US is our strategic geographical position in the First Island Chain. They cannot win a war with China if the Philippines will not be an active ally in the Mutual Defense Alliance.
B. Stop China Appeasement
Next to granting Americans Parity Rights after our Independence this is our next biggest foreign policy blunder in our short history as an independent State. This appeasement gave China years of consolidating its de facto gains in the West Philippine Sea at a period when we should be doing the opposite. As we contemplate how to change the direction of our foreign policy vis-à-vis China, that country is already preparing how to thwart the next administration that may not be accommodating like Pres Aquino. The damage created by this administration will take years to repair. Ending the appeasement is the necessary start to repair it.
C. Adopt The Decision of the Arbitral Tribunal As Our Foreign Policy
We need a whole hearted bureaucratic campaign to implement the decision of the Arbitral Tribunal. The de facto islands of China in the Spratly and its de facto control of Panatag Shoal are illegal and violate International Law. We should announce that to the world instead of keeping silent about it. We will be respected in the community of nations if we make this a major anchor of our Foreign Policy.
We must not let go or ignore our biggest international victory against a giant in the eyes of the word. We must wear it like a badge of honor. This victory is bigger than winning an Olympic Gold Medal or winning a beauty contest.
Is Sabah Syndrome happen Again?
The parallelisms are stark:
A) Stephens Mohammad, a Filipino, obviously blinded by his personal gains in the enterprise, colluded with the Peninsular Malaysians to effect a de jure secession of Sabah from the Philippines to the Federal States of Malaysia. Today we have government officials blinded by the flowing money from China to the detriment of the national patrimony advocating appeasement of China. The national blight starts with the president.
B) Like the national government of the 1960s, they were doing nothing about it. They let it happen by fait accompli. Today, we have a government who do not just collude with China but tout it as the manna that can save our economy as if our economy needed saving.
C) The response of the national government in 1963 was tepid. Today it is worst than tepid.
The judgment of history is what great Statesmen are very concerned about. More than ever before, that kind of challenge is confronting our present leaders: will they be the Filipino traitors in Sabah in the early 1960s? Or will they be patriots that this country so direly need today.