Sun, Dec 23, 2007 page8

• Manila's weak claim to the Batanes

  • By Chen Hurng-yu 陳鴻瑜
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  The Batanes Islands, controlled by the Philippines, are a territorial problem left over from the colonial period. When Spain and the US signed the Treaty of Paris in 1898, the islands were not adequately addressed and this led to irresolution.

  Taiwan challenges the Philippines' possession of the Batanes Islands for the same reasons that it challenges Manila's claim to the Spratly Islands.

  Territorial issues should be discussed on a case-by-case basis. It is necessary to look at the issue of the Batanes Islands based upon international conventions rather than conjecture.

  Philippine commentators say that Taiwan is not a sovereign state and therefore cannot claim territory controlled by Manila.

  This point of view is hardly worth discussing. Diplomatic relations between Taiwan and the Philippines lasted until 1975. Although the two states have not maintained official diplomatic relations, this is not evidence of whether Taiwan is a nation or not. Anyone even vaguely familiar with international law should understand this. Non-recognition of another state does not affect its status; the Philippines has no authority to decide whether Taiwan is a country.

  Philippine citizens require visas issued by the Taiwanese government to work or travel in Taiwan, which is in itself proof of Taiwan's sovereignty.

  Philippine academic Carlos Agustin believes that a seaway treaty signed by Taiwan and the Philippines constitutes recognition of the Philippine territory.

  This argument has many flaws: The treaty, signed in July 1991 -- not 1993, as Agustin believes -- concerns Taiwanese fishing boats traveling through two Philippine seaways, not border issues between the two states. Furthermore, the Philippine government does not consider the treaty to be an agreement between states, but defines it as a conference record and abolished part of it in 1998.

  Another Philippine academic, Pervagus, suggests that Section 4 of the UN Convention on the Law of the Seas (UNCLOS) justifies the Philippines' possession of the Batanes Islands. But section 4 of UNCLOS concerns archipelagic states only and the Philippines does not qualify.

  He also says Japan and Taiwan never occupied or controlled the Batanes Islands, whereas the US did. This argument is based on military occupation and not on international treaties. If we must choose between occupation and treaties to base our borders on, treaties should win.

  International law and its implementation supports the regulations of international treaties and opposes military occupation.

  Apolonio Anota presents a similar argument. Because the Philippine government holds congressional elections on the Batanes Islands, Manila clearly controls the territory, he says. The people on the islands choose to be citizens of the Republic of the Philippines by complying with its laws, participating in its national elections and identifying themselves as Philippine, he says.

  Anota is completely ignoring the fact that the US violated the 1898 treaty.

  Another Philippine commentator has argued that the Ivatans of the islands were claimed by Spain in 1782, which is dubious. Although Spain claimed the main island of the Batanes, Basco, in 1782, it did not set up administrative centers on the islands because of their remoteness and the strong northerly winter winds that made life on the islands difficult.

  Only a few missionaries lived on the Batanes and Babuyan islands, while the Spanish colonial administration was located at the northern harbor of Aparri on Luzon. In other words, Spain never exercised administrative control over the Batanes Islands before the US took over the Philippines.

  Jay Batongbacal, a lawyer, argues that Spain ruled the Batanes Islands starting in 1783 and that the islands have belonged to the Philippines since 1895. In 1898, Katipunan, a Philippine revolutionary organization, even sent troops to the islands to resist Spanish rule, he says.

  Batongbacal argues that, under the Cession of Outlying Islands of the Philippines signed in 1900, Cagayan, Sulu, Sibutu and their subordinate islands were ceded to the US. Again, the facts are being manipulated.

  In 1990, the US and Spain renegotiated ownership of islands that were beyond the boundaries set by the third article of the 1898 treaty and therefore had not been ceded to the US. When the two countries signed the Cession of Outlying Islands of the Philippines, the only article established in the treaty stipulated that the island of Cagayan Sulu, now called Taganak Island; Sibutu, now called Turtle Island; and smaller islands around them had not been ceded to the US.

  Batongbacal confused Cagayan Sulu, which is near the coast of Borneo, and the northern province of Cagayan in Luzon. Islands north of 20o latitude were not ceded to the US.

  Batongbacal then cites the Vienna Convention on the Law of Treaties and insists that ambiguities in the 1989 treaty should be interpreted "in good faith in accordance with the ordinary meaning." But that violates the idea that treaties must be easily understood.

  The terms in a treaty cannot be interpreted in such a way that they violate the meaning of the treaty as a whole. There is a difference between 20o latitude and 21.3o latitude.

  With the technology available at the time, it was possible to record latitude and longitude accurately. In other words, the demarcation of the territory that Spain ceded is very reliable.

  Spain never discussed the issue of islands north of the 20th meridian with the US.

  Batongbacal is also of the opinion that the Philippines' 1935 Constitution and John's Law define the country's territory.

  These documents only determine the territory of the Philippines according to the 1898 and 1900 treaties.

  The Philippines has yet to come up with a legitimate argument for its claim to the Batanes Islands.

  Chen Hurng-yu is a professor at the Graduate Institute of Southeast Asian Studies at Tamkang University.

  Translated by Angela Hong, Ted Yang and Anna Stiggelbout
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