Maritime law expert slams Marcoleta’s call to give up Kalayaan islands

MANILA (UPDATED) — Maritime law expert Atty. Jay Batongbacal on Friday warned that recent statements by Sen. Rodante Marcoleta on the West Philippine Sea are undermining the Philippines’ position and strengthening China’s claims on the issue.

During a Committee on Appointments hearing earlier this week, Marcoleta said the Philippines should give up the Kalayaan Island Group (KIG) in Palawan, claiming that some of its features are “way beyond" the Philippines' exclusive economic zone (EEZ).

In a phone interview, Batongbacal, director of the Institute for Maritime Affairs and Law of the Sea of the UP Law Center, described Marcoleta’s remarks as “unacceptable” and dangerous to national security.

He stressed that decisions involving sovereignty and sovereign rights must be handled through diplomacy and at the highest levels of government.

“Certainly, it's unacceptable for a senator of the republic to suggest even that we simply give up any portion of the national territory just on his say-so,” Batongbacal told defense reporters.

“It's always a very serious matter that requires both diplomacy and decision-making at the highest possible level and especially under our current system of laws, requires the support and consent of our people,” he added.

“If he is just trading bananas in the market, that is not just acceptable—it is inconceivable, really. It's unacceptable for the executive branch and the entire Philippine government.”

MARCOLETA: MY WORDS WERE 'TWISTED'

Marcoleta has since said that his statement was taken out of context.

Speaking on his "Sa Ganang Mamamayan" program on Friday, the senator said he was only stressing that the arbitral award on the West Philippine Sea does not cover the Kalayaan Island Group, which includes Pag-asa Island.

"Paano ka ngayon makakagawa ng mapa ng West Philippine Sea pag isinama mo yung Kalayaan Island Group? Kaya hanggang ngayon, pinipilit ko, hinahamon ko sila eh. Hindi nila magawa," he said.

(How will you make a map of the West Philippine Sea if you include the Kalayaan Island Group? That's why, until now, I have been pressuring them and challenging them. They cannot do it)

He also took a veiled shot at an unnamed UP professor whom he said was acting like an expert.

"Nagkataon lang na maritime law professor siya. Kumu merong nakakapit na maritime, hindi ba niya naintindihan ang pinag-uusapan?"

(It just so happens he is a maritime law professor. Just because it's 'maritime', does he understand the issue?)

‘LACK OF UNDERSTANDING OF INTERNATIONAL LAW’

Batongbacal said Marcoleta’s statements reveal a lack of understanding of basic principles of international law, particularly on maritime zones.

“In international law, the maritime zones emanate from the land territory, not the other way around," he said,

He said the senator is "making uninformed statements ... on a matter which is clearly not yet fully settled because, after all, the disputes are still ongoing.” 

He added Marcoleta's statements weaken the Philippine position and  “(help) the other claimants, particularly in this context, the People's Republic of China, in reinforcing their claims simply on the basis of his failure to understand the situation.”

He said the statements, in effect, are “deceiving the people into giving up something that is already theirs by right,” he continued.

‘IGNORANCE IS NOT AN EXCUSE’

Batongbacal further said that such remarks by the senator could be used against the Philippines in international negotiations or legal proceedings.

“So, he's really helping them and he has no excuse. He cannot say ‘I'm just being a devil's advocate or I just don't know what,’” he the maritime law expert said.

“Ignorance is not an excuse because he's a senator of the republic. So, he's really abetting our claims despite what he's saying—coordinates, metes and bounds of the West Philippines,” he added.

“That's the kind of willful—I describe it as willful—ignorance on his part. He's really ignoring the applicable law, the applicable rules and the applicable principles.”

PH EXCLUSIVE ECONOMIC ZONE ESTABLISHED SINCE 1978

Batongbacal reiterated that the country’s EEZ has long been established under both domestic and international laws.

“We’ve had the EEZ since 1978. It was enshrined in the Constitution in 1987. We enacted laws in 1995 and 1998—the Mining Act and the Fisheries Code to implement this concept of the EEZ by managing the resources there. We reinforced it with RA 12064 (Philippine Maritime Zones Act),” he explained.

He went on, “We even made it consistent with international law, which recognizes our right in the EEZ and yet he keeps saying, he keeps arguing that we don't have an EEZ—that it does not exist. I don't think any kind of briefing or explanation will work if he’s like that.”

According to Batongbacal, repeated denial of these rights suggests that Marcoleta is pursuing “specific objectives.”

“Clearly, he is doing this for his specific objectives, whether it's his or somebody else's, we don't know but clearly, all these statements are already set in his mind. I don't think he's going to change it with an explanation,” the maritime law expert said.

‘YOU GIVE THEM AN INCH; THEY WILL TAKE AN ARM’

Batongbacal warned that giving up the KIG will expose the country’s western coastline, weakening national security.

“So, if we were to give that up, we will be exposing the entire coast of the Philippines from Balabac in Palawan all the way up to the north… We would be giving up an important vantage point to establish the security of our western coast,” he explained.

“Also, we have to keep in mind that if you give up one thing, they [China] will probably want to get more. You give them an inch; they will take an arm. Next, they will want more and more. Eventually they will fragment this country and break it up,” he added.

‘ELECTED TO DEFEND THE INTERESTS OF FILIPINOS’

The maritime law expert reminded lawmakers of their primary responsibility: to protect the interests of the Filipino people.

“I think they really have to keep in mind that they were elected as representatives of the people, and their job as legislators, as officials of government, is to pursue and defend the interests of the Filipino people, not protect the interests of other countries,” Batongbacal emphasized. “Our interests lie in the sea. They lie in the West Philippine Sea.”

“They're not doing that. They're not doing their job. They're not carrying out what the people entrusted to them,” he continued. “We have to always remind them to whom their duties lie.”

KIG OFFICIALS 'OFFENDED, INSULTED' 

Meanwhile, officials of the Municipality of Kalayaan strongly objected to Marcoleta’s statements suggesting that the Philippines should give up the Kalayaan Island Group, calling the remark disrespectful.

Vice Mayor Maurice Phillip Alexis Albayda said the local government plans to formally seek the removal of the senator’s comment from official Senate records.

“[We are] Offended [and] insulted para sa aming magigiting na mamamayan,” Albayda told defense reporters in a text message.

“Sa Tuesday, waiting ng session to file a resolution requesting the Senate Secretariat to strike out the comment made by Senator Marcoleta,” he added.

Kalayaan is the country’s only municipality located in the West Philippine Sea. Its center on Pag-asa Island is where Manila asserts its sovereignty in the area. 

Despite their strong reaction, Albayda clarified that the municipality has no plans of declaring Marcoleta persona non grata, noting that he remains a duly elected public official.