First of a series
SEN. Rodante Marcoleta seems to believe the Philippine claim to portions of the South China Sea, which the arbitral tribunal in the UN-backed Permanent Court of Arbitration at The Hague upheld in its ruling against China in 2016, may be questioned by any citizen in a spirit of free inquiry without committing a high crime against the state. The senator seems to make this very clear when he challenged Commodore Jay Tarriela, the Philippine Coast Guard West Philippine Sea spokesman, together with retired Supreme Court senior associate justice Antonio Carpio, and University of the Philippines lawyer Jay Batongbacal to a “friendly debate” on the issue of the West Philippine Sea.
At a time when the Chinese ambassador to the Philippines and the secretary of the interior and local government Jonvic Remulla are reported to have begun a dialogue in an effort to bring down the tension in the West Philippine Sea, Marcoleta has been quoted as suggesting — seriously or facetiously, we do not know — that perhaps Manila could cede the Kalayaan Island Group to China to put an end to the problem. Sounds like Donald J. Trump talking of making Canada the 51st US state, or Greenland part of the US.
Tarriela has dismissed Marcoleta’s challenge as absurd, but Carpio, who seems to be the leading authority on the UN-backed arbitral tribunal ruling, which China refuses to recognize, has agreed to debate the senator, the details to be announced later. The devil is in the details.
But should the proposed debate push through, it could perhaps help our people cope with the realities of their lives much better. The world is changing, and we must change with it, except in the things that do not change. We cannot have our problem with China forever.
Twenty-six years ago, I was the Senate majority leader. In one rather ambitious speech, I offered a perspective on how our two countries could navigate the future in peace and progress if we work together toward a common purpose. Today, I reread the same speech and feel I’m reading it for the first time; nothing has changed.
In 1999, at the seventh annual meeting of the Asia-Pacific Parliamentary Forum (APPF) in Lima, Peru, I had the opportunity to engage a Chinese official on the issue of our conflicting territorial claims, and became the first Filipino official to engage with a high Chinese official on such an issue in an international forum. I had asked that the item be included in our conference agenda, to which China, supported by Japan, vehemently objected. I had to assure the chair that our discussion would merely call attention to some incidents in the South China Sea without embarrassing any UN member.
That said, the meeting adopted our resolution without a strong reaction from the head of the Chinese delegation. This incident convinced me that despite some obvious difficulties, a constructive and conciliatory dialogue, if you insist on it, is always possible. But until the new Chinese ambassador arrived in Manila, and started talking to Secretary Remulla, there seemed to be little change in the way our governments exercise their options.
Philippine-China relations have been built on strong foundations. On June 7, 1975, the day our two countries exchanged diplomatic recognition, President Ferdinand Marcos Sr. and Prime Minister Zhou Enlai signed a joint communique in Beijing that defined the principles that would govern our relations. Among these were peaceful coexistence, mutual respect for each other’s sovereignty and territorial integrity, mutual non-aggression, non-interference in each other’s internal affairs, equality and mutual benefit, and the peaceful settlement of disputes. We also agreed to recognize only “one China," and to remove all our official representations from Taiwan within one month from the signing of the communique.
Some of these principles have since come under strain. China’s occupation of Mischief Reef in the Kalayaan area off the coast of Palawan, where it has constructed some structures; its insistence that our territorial dispute remain strictly a bilateral issue, not to be aired in any international forum or referred to any of the appropriate organs of the United Nations, although there is no offer of negotiating a bilateral solution; the sudden proliferation of Chinese vessels in Kalayaan —all these have impinged on the otherwise healthy development of Philippine-China relations.
In the first decade from 1975, mutually beneficial economic and cultural ties flourished between China and the Philippines. In 1989, on her state visit to China, President Corazon Aquino proclaimed her Chinese ancestry and went on to retrace her roots in some remote Chinese village. In 1993, President Fidel Ramos made a highly successful state visit to China, followed in 1994 by an official visit by then-vice president Estrada.
These were reciprocated with Premier Li Peng’s visit to the Philippines in 1990, President Jian Zemin’s state visit in 1996, and Premier Zhu Rongji’s official visit in 1999. These were all successful visits. President Jiang made an unforgettable impression in Manila when he burst into song during a state dinner in his honor in Malacañang.
Bilateral ties later grew from strength to strength during the presidency of Rodrigo Roa Duterte who made a state visit and several other visits to Beijing and who, in turn, was visited by President Xi Jinping in the Philippines. In all these exchanges, both sides never failed to reaffirm the basic principles enunciated in the 1975 joint communique as the indisputable basis of Philippine-China relations. These were mechanically reiterated in periodic encounters during seven summits of the Asia Pacific Economic Cooperation (APEC) and two summits of the Asia-Europe Meeting (ASEM), among others.
All these gave our top leaders ample opportunity to dialog, in bilateral and multilateral settings. Despite this, they could not avoid getting embroiled in a legal dispute over uninhabited and unproductive territory in a sea which we have shared since time immemorial. How did this happen? This deserves a truly profound answer.
China claims “indisputable right” over the entire South China Sea, which it considers Chinese waters. It makes no distinction, where a distinction is needed, between the islands, islets, reefs, cays, shoals and sandbars within its territory and the Kalayaan Island Group, which the Philippines considers its own. It shows all sorts of maps to support its claim.
But the International Court of Justice at The Hague has long held in the frontier dispute, Mali v. Burkina Faso, that maps “merely constitute information which varies in accuracy from case to case; of themselves, and by virtue solely of their existence, they cannot constitute a territorial title; that is, a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights.”
The Philippine position, for its part, derives historical support from the Alexandrine bulls of 1493 and the Treaty of Tordesillas of 1494, among others. The bulls refer to four historic documents issued by Pope Alexander VI, who, as Christendom’s supreme arbiter, tried to reconcile the conflicting colonial claims between Portugal and Spain, the world’s first two rival colonial powers.
The first of these bulls, dated May 3, 1493, granted to King Ferdinand and Queen Isabela of Spain all lands in the West discovered and yet to be discovered by Spanish explorers. The second, also May 3, 1493, further granted to Spain the same rights in these lands as those enjoyed by Portugal in Africa. The third, May 4, 1493, established a demarcation line from the North to the South Pole, passing through the Atlantic Ocean, at 100 leagues west of the Azores and the Cape Verde Islands. All lands already discovered and yet to be discovered west of this line were to belong to Spain and all lands east, to Portugal. The fourth, Sept. 25, 1454, authorized Spain to extend her sovereignty over all territories she may discover in the East, including India. This modified the concessions previously granted to Portugal by Popes Nicholas V in 1493, Calixtus III in 1454, and Calixtus IV in 1481.
King John II of Portugal repudiated the bulls for being unduly partial to Spain. To avoid war, King Ferdinand and Queen Isabela sought a treaty with Portugal. This was the Treaty of Tordesillas. It moved the demarcation line 370 leagues west of Cape Verde Islands and assigned all lands west of this line to Spain and all lands east, to Portugal.
Although some historians say the treaty put the Philippines within the Portuguese side of the demarcation, Portugal never thought so. From the very beginning when King Charles I of Spain awarded a contract to Ferdinand Magellan and Run Faleiro in Valladolid on March 22, 1518, on their proposed expedition to the Moluccas, he said: “You shall with good fortune voyage upon the Ocean and go in search of discoveries within our demarcation.”
Some amount of confusion arose as to the ownership of the Moluccas. This, Portugal and Spain tried to resolve in the Treaty of Victoria of Feb. 19, 1524, and in the Junta de Badajoz from April 14 to May 31, 1524. But it was not until April 22, 1529 that they finally settled their differences. Under the Treaty of Zaragoza, Charles I, in order to finance his wars in Europe and provide a dowry for his sister’s marriage to the Portuguese king, sold his claim
on the Moluccas to Portugal for 350,000 gold ducats, thus shifting the demarcation 297 leagues east of the Moluccas. Some historians describe this as a “comedy of errors," for here Spain sold something she did not own and Portugal purchased something that was already hers.
With respect to the Philippines, Spain’s claim on the islands was confirmed first by the Villalobos expedition (1542–1546) and the Legazpi expedition (1564–1565) and by a period of colonization that lasted until the Spanish-American war in 1898. Finally free after “350 years inside a Spanish convent and 50 years inside Hollywood,” as a writer in Le Monde once put it, the Philippines assumed sovereignty and control over the vast Philippine archipelago once held by its colonizers.
China never objected to this demarcation. To the contrary, it recognized Spain’s dominion on the Philippine islands as it did Portugal’s dominion over Macau. As evidenced by the Ming emperor’s royal welcome of Paduka Pahala, Sultan of Sulu, who died and was buried in Shandong province in 1417, China recognized the Sultan of Sulu’s sovereignty over the sultan’s territory, which included the waters of Palawan where Kalayaan lies, at least 76 years before the issuance of the Alexandrine bulls.
China has since changed its position. This need not unduly disturb the stability and peace of the region, provided the claim is not accompanied by obvert action, and there is a pronounced willingness to find a peaceful solution. But despite China’s being a member of the United Nations, permanent member of the UN Security Council, and member of the UN Convention on the Law of the Sea (Unclos), it has rejected outright any suggestion to submit this dispute to the appropriate UN organ for legal adjudication.
It is this mistrust in the dispute settlement mechanism of the rules-based international system, of which China is a prominent and highly respected member, which we must continue to work on.
To be continued