Why Joint Exploration in West PH Sea with China is a good diplomatic gamble?

Disclaimer: I am a no legal expert on this subject matter. However, I am sharing my fallible layman’s perspective in dissecting this highly debatable issue. And I can be wrong so I will be glad to be corrected on specific points. In addition, I would like to clarify that my views stand independent (non-partisan) regardless the administration’s respective stance or policies. I am not writing this to either support or negate their position by default. This is just my honest and personal take.

1. Joint Explorations with other states are permitted by Philippine and international laws, both in our territories and EEZs. Anyone to correct if not affirm this?

2. We cannot really force (and hardly pressure) China to respect the arbitral ruling on West PH Sea, so we must think of long-term strategies in order retain our sovereign rights on the said disputed areas. The forced occupancy of China could potentially jeopardize and void our claims there in the future despite the established ruling at The Hague. This, I will tackle more below.

3. In the succeeding paragraphs, I would explain, by principles, how China can eventually claim the disputed regions in the future with all legitimacy. Mind you, as of the moment, they have more edge and as a matter of fact, they could even use the lack of joint exploration as a political leverage to take-over.

I remember a discussion before pointing how a neglect of a state, can be used by another to eventually possess/acquire a certain area as its new territory (I was trying to retrieve concrete historical examples online, on how idiotic diplomatic measures led to such transfer of sovereign rights, but to my luck, my “excavation skill” failed. I am sure I read it somewhere before though). Since Philippines only have sovereign rights over its EEZ in West PH Sea despite it being described as part our “national territory wherein we have a jurisprudence over by Philippine laws,” China could still potentially acquire Philippine non-territories (as determined by international mandate) like its EEZ to officially become part of the former’s new remote territory like as a colony or whatever by building artificial islands there. It is because they would not care about or recognize our national laws, and can even circumvent international laws to their advantage/favor. http://theowp.org/artificial-islands-expanding-countrys-territory

If a “land” is present, it can be described as a territorial expansion or extension.

Okay, pasok sa listahan ang pag okupa ng Tsina sa disputed islets sa West PH Sea. If Philippines does NOT find a method to address such forced “occupation” there soon, it will be an implied recognition of China’s artificial territorial islands there which overlaps with existing archipelagic doctrine of other states.

As pointed below:

//There are two elements of effective occupation (one of the modes for acquiring a territory). One is the intention and will to act as sovereign (animus), and two is the peaceful and continuous display of state authority (factum). The intention can be displayed from the simple fact of publishing notices of sovereignty in various state journals or issuing laws on territorial assertions. The display of state authority must be peaceful and continuous.//

CHINA DID THIS throughout the decades. Pasok yung consistent display of intention ng China to act as an animus and factum. Kaya may edge na sila agad.

//Mere protests from rival claimant states do not lose the peaceful character of the display of state authority.//

WHILE PHILIPPINES MADE PROTESTS BEFORE AND FILED A CASE BEFORE THE HAGUE, CHINA HAS NOT RECOGNIZED THEM BUT DID NOT RESORT TO ANY AGGRESSIVE OR HOSTILE MEANS TO DO SO. So, the protests alone did not push China to resort to initiate aggressive measures. China simply continued to act as an animus or sovereign when it comes to perceived threats, like using water cannons against the boats or anything that enters the vicinity of disputed region without their prior consent (even we know that it is our EEZ).

// However, consistent protests over a long period of time if not rebutted by the claimant state may disturb the peaceful character of the display of state authority.//

CHINA REBUTTED THE PROTESTS PUBLICLY, ALBEIT NOT IN INTL RULING BODIES. Therefore, may peaceful character of the display of state authority pa din ang China. I mean, they are still the one which has the edge, objectively speaking, though it is unfortunate for us to realize that.

//The continuous display of state authority encompasses two ideas: (1) that the display of authority is ongoing; and (2) the display of state authority must exist up to the “critical date”. The critical date in a territorial dispute is the date on which the location of territorial sovereignty is decisive. Normally it is the date of the origin of the dispute. The state which can present an effective title in the period immediately preceding the critical date has the superior claim.//

HENCE, CHINA COULD HAVE A SUPERIOR CLAIM OVER THE DISPUTED REGION IF PHILIPPINES FAILS TO COUNTER THIS WITH CLEVER DIPLOMATIC MEASURES.

**** Take note that an effective occupation (and its continued exercise namely prescription, these are jargon) is just one of the ways for China to claim a territorial sovereignty in the disputed region using artificial islands. They could still use the rest like Cession* (by convincing the claimants to share or sell its territories if not EEZ, and selling EEZ is discretionary by international law but arguably prohibited by Philippine Consti); and uhmmm finally through “conquest” if the rest fail.

:::Prescription means continued occupation over a long period of time by one state of territory actually and originally belonging to another state. There are four requirements of prescription: (1) the possession must be exercised in the form of actual exercise of sovereign authority; (2) the possession must be peaceful and uninterrupted; (3) the possession must be public; and (4) the possession must be for a long period of time. The peaceful and continuous display is also an essential element although as compared to occupation, prescription requires a stricter proof and longer period of the display of authority. Moreover, any protest or objection by the losing state destroys the peaceful display of authority of the claiming state.

SO MY FINAL WORDS ARE: Joint exploration would actually keep our involvement in the said region and put more gray areas, in our favor, so that we could take more time to put forward our claims over the disputed region, given that it is peaceful by character and it is not a display of mere passive diplomatic protests. Besides, we can always resort to the suggestions of Assoc. Justice Carpio over this matter (yes I have read about them since they were brought up to press) while entering the aforementioned pact. But in the meantime, joint explorations are giving us leeway to execute our plans.

http://politicsandgovernance.blogspot.com/2010/06/modes-of-acquiring-territory.html

[MODES OF ACQUIRING TERRITORY

.

Related cases:

The Island of Palmas (Miangas) Arbitration, The Netherlands vs. United States

Kalayaan Group of Islands

Western Sahara Case

Eastern Greenland Case

Clipperton Island Case

Pulau Ligitan and Pulao Sipadan Case, Indonesia vs. Malaysia

Pedra Branca and Pulau Bato Puteh, Malaysia vs. Singapore

Useful links:

http://staff.iiu.edu.my/ghafur/Lecture%20notes/LAW%203910%20ppt%20Lectures/5.%20STATE%20TERRITORY.pdf

http://www.lfpr.lt/uploads/File/1999-4/Zalimas.pdf]

http://politicsandgovernance.blogspot.com/2010/06/modes-of-acquiring-territory.html

Oh I already found the example I read before. ANd it was only a verbal diplomatic idiocy.This goes to show how verbal recklessness could result to one’s geopolitical disadvantage, cough* digong coughsss*

https://en.wikipedia.org/wiki/Ihlen_Declaration

RELATED READING:

Related reading:

MODES OF ACQUIRING TERRITORY

The traditional modes of acquiring territory of a state are:

(a) discovery, (b) occupation, © prescription, (d) cession, (e) annexation, (f) conquest, (g) accretion and (h) avulsion.

Discovery is the oldest method of acquiring title to territory. However, discovery alone would not suffice to establish legal title. It is necessary that the discovered area must be physically occupied. Related to title by discovery is the hinterland doctrine or the principle of continuity. If a state has made a settlement, it has a right to assume sovereignty over all adjacent vacant territory, which is necessary to the integrity and security of the settlement.

Occupation is the intentional acquisition by a state over a territory which at the time of claim not under the sovereignty of any state. There are two requirements: (1) the territory subject of claim must not be under the sovereignty of any state (terra nullius); and (2) the state must have effectively occupied the territory, that is, the state claiming the territory must have exercised immediate occupation (corpus occupandi) on the territory after it displayed its intention to occupy (animus occupandi).

There are two elements of effective occupation. One is the intention and will to act as sovereign (animus), and two is the peaceful and continuous display of state authority (factum). The intention can be displayed from the simple fact of publishing notices of sovereignty in various state journals or issuing laws on territorial assertions. The display of state authority must be peaceful and continuous. Mere protests from rival claimant states do not lose the peaceful character of the display of state authority. However, consistent protests over a long period of time if not rebutted by the claimant state may disturb the peaceful character of the display of state authority. The continuous display of state authority encompasses two ideas: (1) that the display of authority is ongoing; and (2) the display of state authority must exist up to the “critical date”. The critical date in a territorial dispute is the date on which the location of territorial sovereignty is decisive. Normally it is the date of the origin of the dispute. The state which can present an effective title in the period immediately preceding the critical date has the superior claim.

Prescription means continued occupation over a long period of time by one state of territory actually and originally belonging to another state. There are four requirements of prescription: (1) the possession must be exercised in the form of actual exercise of sovereign authority; (2) the possession must be peaceful and uninterrupted; (3) the possession must be public; and (4) the possession must be for a long period of time. The peaceful and continuous display is also an essential element although as compared to occupation, prescription requires a stricter proof and longer period of the display of authority. Moreover, any protest or objection by the losing state destroys the peaceful display of authority of the claiming state.

Cession is the transfer of territory usually by treaty from one state to another. Concomitant of transfer of territory is the transfer of sovereignty from the owner state to another state. And since cession is a bilateral transaction, the parties involved are states. Cession may also be in the form of exchange of territory or in the form gift or donation or devise.

Conquest is acquiring territory by the use of force. The practice before was after conquest, the conqueror annexed the conquered territory to his state. Thus, conquest first takes place followed by annexation. But with the establishment of the United Nations, conquest is no longer acceptable in the international community.

A state may also increase or decrease its territory through accression and avulsion. Accression is the attainment of sovereignty over new land due to slow movement of natural forces. Example of this is the gradual movement of a river bed. On the other hand, if the natural forces happened suddenly, like creation of an island in territorial waters due to volcanic eruption, it is referred as avulsion.

Related cases:

The Island of Palmas (Miangas) Arbitration, The Netherlands vs. United States

Kalayaan Group of Islands

Western Sahara Case

Eastern Greenland Case

Clipperton Island Case

Pulau Ligitan and Pulao Sipadan Case, Indonesia vs. Malaysia

Pedra Branca and Pulau Bato Puteh, Malaysia vs. Singapore ]

Useful links:

http://staff.iiu.edu.my/ghafur/Lecture%20notes/LAW%203910%20ppt%20Lectures/5.%20STATE%20TERRITORY.pdf

http://www.lfpr.lt/uploads/File/1999-4/Zalimas.pdf

https://en.wikipedia.org/wiki/Ihlen_Declaration