I WOULDN'T really have bothered with UP Professor Jay Batongbacal's little-read post on social media, which, disgracefully for an academic, hurled cheap ad hominems against me. But so far, his has been the only reply to my columns that point out that the Maritime Zones Act, signed by President Marcos Jr., has given up the Kalayaan Island Group, which, ironically, his father annexed from the Spratlys and made part of our territory in 1978, through Presidential Decree 1596.

Batongbacal's post gives us a chance to further expound on my past columns on the issue and to explain why the much-vaunted 2016 arbitral ruling in the Philippine suit against China has been stupidly used by our pro-US leaders to jettison the KIG and taken off our map.

For starters, I was shocked that Batongbacal claims that "no country, not our competing neighbors in East Asia nor those outside the region, has recognized PD 1596, whether its claim to land territory nor the waters enclosed within." That is a lie.

Batongbacal is ignorant about the well-known practice in the conduct of relations between nations that nations do not question, nor even assert, the declared territories of other nations, since these are assertions by sovereign states. Even the US officially has not declared whether it questions Philippine sovereignty over the KIG, repeatedly asserting that it takes no position in territorial disputes between and among other nations." What has been the position of the Philippines over China's takeover of the Paracel islands in the South China Sea, Japan and Russia's dispute over the Kuril islands, and Israel and Palestine's claims over the West Bank, the Gaza Strip, and East Jerusalem? Nothing. We have no business with the territorial disputes of other nations.

The exception to this practice, of course, is when a nation's declared territory encompasses the asserted lands of another nation. Thus, China and Vietnam vehemently protested Marcos PD 1596 when the strongman issued the decree since it encompassed the areas in the Spratlys that these two countries had long claimed as theirs. Batongbacal just doesn't understand international practice if he considers the US and its allies' general support for the 2017 arbitral ruling as protesting that our KIG is illegal.

Strange

It is strange — or maybe not, as I will explain below — why Batongbacal has changed his position that our KIG is illegal.

The April 2013 booklet titled "The West Philippine Sea: The Territorial and Maritime Jurisdiction Disputes from a Filipino Perspective," which he co-authored with the late Aileen Baviera, vigorously defended the Philippine claim to the KIG, as established under PD 1596. The primer explained at length that the territory "is critical to Philippine territorial integrity and security against external threat ... and to our marine environment." The primer also pointed out that it is believed that there may be substantial oil and mineral gas deposits in the area of the KIG."

Batongbacal and his co-author, in fact, used nearly a fourth of the primer to present the arguments for our claim to the KIG, which, in fact, they presented as constituting one of our two disputes with China, the other being over Scarborough Shoal.

The two pointed out that Philippine sovereignty is incontestable since it "has engaged in normal civilian exercise of sovereignty and state administration in the KIG since 1971."

PD 1596

Furthermore, in a July 2021 Facebook post, Batongbacal pointed out that it is not just PD 1596, issued by the elder Marcos, that is evidence of existing Philippine sovereignty over the KIG. The Philippines has effectively occupied it for nearly half a century, one of the internationally recognized modes for acquiring sovereignty over a particular area, called "effective control" or "effectivité."

He emphasized in that 2021 post that PD 1596 is still valid because the Philippines is "a civil law country, which means its laws remain valid and effective until amended or revoked."

PD 1596, enacted in 1978, 16 years before the UN Convention on the Law of the Sea (Unclos) took effect, declared that the area within the Spratlys, which it defined with geographical coordinates, and not just the land features there, are subject to Philippine sovereignty. That primer, which Batongbacal co-authored, echoed PD 1596 and defined the KIG as that "group of over fifty features and their surrounding waters" belonging to the Philippines.

But in his recent Facebook post, Batongbacal totally changed his mind and claimed: "No State can claim absolute sovereignty over the seas beyond that permitted by international law. That includes PD 1596 and its legal over-reach."

Volte face

So how or why did Batongbacal, and after what I presume his years of academic work, drastically change his interpretation of PD 1596, which he now says doesn't conform with international law? This view, in effect, declares that all Philippine official maps — at least until 2008, when the government stopped issuing a new map — violated international law. This is the height of intellectual dishonesty, which hasn't explained why he changed his mind on the legality of PD 1596.

Batongbacal's map in his 2013 booklet that shows the Kalayaan Island Group (KIG) as part of our sovereign territory, based on Ferdinand E. Marcos' PD 1596. Now he says it violates international law, and is a 'egal over-reach.' The Maritime Zones Act he is avidly supporting will wipe out the KIG.

The reason for Batongbacal's volte face is that he had to align with Aquino III's American lawyers' legal strategy in the arbitration suit against China. This strategy was not to ask the arbitral tribunal to rule on the validity of China's sovereign claims in the Spratlys — which neither it nor anybody in the world has the authority to do — but only to declare so-called China's nine-dash line as not conforming with Unclos provisions limiting claims of sovereignty over waters in an outlying archipelago and imposing guidelines on the ratio of land to water in such claimed archipelagic waters.

Very strangely, I think, Aquino III's US lawyers, to strengthen their argument, claimed that even the Philippines' KIG did not comply with these Unclos provisions and that our country had falsely claimed the KIG.

Either Batongbacal was in the employ of the team that undertook the arbitration suit, or he was extremely fastidious in complying with US views on the disputes in the South China Sea, particularly its arguments that the nine-dash line has no basis in international law. Puppetry, indeed, extends to a person's intellect.

Dropped

The Philippines under Aquino III and Marcos Jr. has, without any announcement, dropped the country's KIG, which the latter's father created nearly half a century ago. Our Foreign Affairs Department and the military have dropped the position it had adopted since 1978 that China, Vietnam and Taiwan had illegally occupied islands and reefs in the KIG that is our sovereign territory.

In its place, they are claiming that these countries are intruding into our exclusive economic zone, obviously ignorant of the fact that an EEZ is a lower degree of claim as it merely gives the EEZ-claiming nation, sovereign rights to explore the resources there. By contrast, a claim of sovereignty gives the claiming country absolute ownership over that area, as if it were land territory.

What would emphasize the stupidity of our leadership in adopting such a US-formulated claim is that China and Vietnam have insisted that the Spratlys is part of their sovereign outlying archipelago and not just part of an EEZ. Contrary to widespread false views that the US has disseminated through its powerful worldwide propaganda machine, it is not the 9-dash line (which isn't even defined by geographical coordinates, in contrast to the KIG) that is the basis for China's claims in the Spratlys. Rather, it is the fact that its outlying archipelago, it calls Nansha Qundao, has occupied most of the Spratlys for centuries as part of its territory, long before Unclos was even thought of.

The authors of the Maritime Zones Act — and President Marcos — will regret they enacted that law when, in retaliation, the two countries will issue their own baselines, with China declaring these for Nansha Qundao, just as it did last week for Scarborough Shoal.

The territorial seas and then the EEZ for these will overlap with the area of our EEZ on the western side of the archipelago. And guess which country has the military might to enforce its territorial claim?

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