President Barack Obama’s latest declaration that China is bullying smaller countries, including the Philippines and Vietnam, on the West Philippines Sea issue is the strongest American expression of concern over China’s expansionist conduct in the disputed area. While Philippine and Vietnamese authorities are euphoric with Obama’s latest statement, it still has to be seen if the US is able and ready to counter Chinese imperialism in the West Philippine Sea.
The US policy now appears to be more cautious in dealing with China on this issue. But unlike its unequivocal policy that it will come to the assistance of Japan if China were to attack Senkaku Island, America’s current policy of taking a neutral position on the unresolved territorial disputes in the area appears unchanged.
The US position is because its national policy and interest in the West Philippine Sea remains unchanged. Since it “purchased” the Philippine Archipelago in 1899 from Spain, it has maintained that the metes and bounds of the Treaty of Paris refer only to land territories. This of course is inaccurate given that what was allegedly ceded by Spain to it was an archipelago, or a unity of land and water forming a united whole. Obviously, the Treaty of Paris is a Treaty of cession over both land and water territory.
In any case, the US has never advanced a claim either to any island or waters in the disputed Spratlys group of islands. In fact, in 1933, when France publicly laid a claim to the disputed area, only Japan, China, and even the United Kingdom issued formal protests, the latter on the ground that the islands were discovered by a British national and hence, its English name. This means that the US, since the inception of the controversy, has only been concerned about the freedom of navigation in the area, which today, is the second busiest sea-lane in the world. Almost all of the oil supply of China, Japan and the US coming from the Middle East passes through the area from the Gulf of Aden. This is why the latest expression of concern emanating from Obama should only be read in the context of the US national interest in the region, that is, to maintain freedom of navigation in the disputed and dangerous waters of the West Philippine Sea.
Related to the Obama expression of concern is the report by veteran journalists from Vera Files that through a note verbale, the Aquino administration has offered to drop the Philippines claim to Sabah in exchange for Malaysia’s support for the Philippines in its on-going spat with China on the West Philippines Sea.
To begin with, such a policy is wrong. This is because whether or not Malaysia wants to stand up to China, it simply has to. Recently, China has also been claiming areas very proximate to Malaysia as forming part of its territory. In any case, Malaysia is also among the five country claimants to the Spratlys group of islands. In other words, the Philippine government need not offer a quid pro quo for Malaysia’s support because the latter also has a legal interest in the controversy.
But the bigger legal issue arising from the note verbale is whether President Aquino, or any President for that matter, could renounce our claim to Sabah.
I am of the belief, since the proceeding of the Constitutional Commission is clear that Art 1 Section 1 of the 1987 Constitution contemplates that we continue to have title over Sabah. Through a referendum, we can surrender this claim. The President has no legal authority to do this alone. This is a high crime since it cedes part of the national territory to a foreign power.
The other troubling aspect that arose from the incident is a statement form Justice Secretary Leila De Lima who, for all intents and purposes, threatened Vera Files with criminal action since the publication of the note verabale was allegedly illegal. In this regard, I am reproducing a portion of the statement of the Center for International Law, which I chair, relevant to press freedom:
“We take exception to the veiled threat in the statement made yesterday by Secretary Leila De Lima that the Vera Files special report on a recent Note Verbale given by the Philippines to Malaysia over the Spratlys islands concerned a confidential matter that should have been kept as it is.
“In the first place, our Justice Secretary should be first to know that such a threat is in the nature of prior restraint with a chilling effect on speech, as held by the Supreme Court in the case filed by the late former Solicitor General Francisco Chavez against a predecessor of hers at the DOJ, the late Raul Gonzales.
“A mere press statement of a threat of prosecution coming from a government functionary, according to this 2008 Supreme Court decision, is unconstitutional precisely for that reason.
“As a former head of the Commission on Human Rights, we expect her to understand that Vera Files is simply doing what journalists ought to do well: report on matters of public interest, especially one where the integrity of the national territory of the Philippines is at stake, so that the citizens are properly apprised of the issues involved.”