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Aquino-del Rosario offered Sabah to Malaysia for its support in arbitration case vs China

Fifth of a series
THE Department of Foreign Affairs (DFA) under President Benigno Aquino 3rd’s watch, then headed by Albert del Rosario, practically offered to drop our decades-old claim over Sabah against Malaysia in exchange for Kuala Lumpur’s support in the Philippines’ arbitration suit filed against China in 2013.

This was disclosed by high-ranking former and current DFA officials involved in the preparation of the suit. Since I started this series on the country’s biggest foreign-policy fiasco that was the arbitration suit, these officials have been emboldened to communicate to me to disclose details on how it was rushed, and how much they abhorred it.

That the DFA offered to give up Sabah to win the arbitration is bolstered by the Note Verbale No. 15-0979 it sent in March 2015, two years after the arbitration suit was filed, to the Malaysian government.

Malaysia, however, didn’t even bother to acknowledge it, must less respond to it. The sources claimed that the DFA also sent feelers to Vietnam asking what it could offer it in exchange for its support. Vietnam similarly ignored the request.

That Aquino and del Rosario were so willing to give up our claim over Sabah to support their suit against China bolsters my suspicion, as I explained in this series, that its filing was a plot of the US as part of its so-called “Pivot to Asia” policy’s component of demonizing China as a way of preventing its rise as the superpower in Asia.

Indeed, stripped of its pungent veneer of claims that we won the suit, the most important part of the award was its ruling that China’s so-called nine-dash line had no basis under the United Nations Convention on the Law of the Sea or Unclos, and that no feature in the Spratly islands can claim a 200 nautical mile exclusive economic zone (EEZ).

That ruling, even if unenforceable and binding only on us (China didn’t participate in the “arbitration”), opens up the South China Sea as mostly international waters, giving the US warships some legal cover in patrolling it as if it was an American lake, needing no country’s permission — especially China — to do so.

The ruling on China’s nine-dash line (an ambiguous, geographically undefined line drawn on Chinese maps covering most of the South China Sea) is really useless. China’s country’s claims are not based on that but — ignoring here its “historic rights” — on modern-era declarations and a domestic law, that Spratly Islands (it calls Nánshā Qúndǎo) and Scarborough Shoal (Huangyan Dao) are parts of its territory. Its 1958 Declaration on China’s Territorial Sea — its first post-war document claiming the Spratlys, Paracels and Scarborough Island — do not even mention at all a nine-dash line.

In August 2009, the Philippines protested the joint submission (through Note 000819) by Malaysia and Vietnam to the UN Commission on the Limits of the Continental Shelf (CLCS) in which Malaysia claimed an extended continental shelf (350 nautical miles from their baseline) that was projected from Sabah.

We protested because the UN submission assumed Malaysia’s ownership of that northern part of Borneo, which the Philippines has been claiming. Under international law, if it did not protest that assumption, the Philippines implicitly was giving up its claim.

However, del Rosario’s DFA in its note verbale in March 2015, delivered to Malaysia through its embassy, said: “The DFA is reviewing its [protest]. Malaysia’s responses on the points raised above would be important in determining what action the Philippines would take in regard to that objection.”

What were those “points raised”? Verbatim from the note verbale: “The Department notes the further understanding of the Philippines that Malaysia does not claim entitlement to maritime areas beyond 12 nautical miles from any of the maritime features in the Spratly Islands it claims. The Department requests Malaysia also to confirm this understanding.”

In plain language, what del Rosario’s DFA was telling Malaysia was the following: “We will withdraw our 2009 protest against your submission to the UN that assumed that Sabah is part of your territory as long as you confirm that you don’t claim any exclusive economic zone on your maritime features in the Spratly islands.”

That no maritime features in the Spratlys has a 200-nautical mile EEZ was one of the main claims of the Philippines in its arbitration suit. The DFA needed other Southeast Asian countries to back this claim.

The claim’s real intent was to have a ruling by an international panel that Taiwan-occupied Taiping Island (Itu Aba), our Pag-asa Island, and especially the huge artificial islands China built on the seven reefs it occupies are not entitled to a 200-nautical mile EEZ. This has been the US nightmare, since if this were not ruled as such, almost the entire South China Sea would be covered by the EEZs of Taiwan, China, Vietnam and the Philippines, requiring US warships to first ask permission from these countries before they pass through their EEZs. A US nuclear submarine having to tell these countries where it is?

Del Rosario’s DFA actually was desperate to be willing give up Sabah in order to get Malaysia to issue a statement that it believes that Spratly features cannot claim more than a 12-nautical mile territorial sea.

Extract of 2009 protest over North Borneo (top), and the offer to withdraw it. DFA documents

This was because it already lied to the arbitral tribunal about this. In its Memorial, the DFA claimed: “In the view of the Philippines… none of the features in the Spratlys generate an entitlement to an EEZ or a continental shelf. It is also the position of Vietnam and Malaysia. (page 150 of Memorial, italics mine.)” The two countries to this day have not declared such a position.

It was veteran reporter Ellen Tordesillas, who has covered the foreign affairs beat for 30 years, who actually broke this stor in 2015, a week after the note verbale was delivered to the Malaysian embassy. The article though was by-lined by one obscure reporter Tessa Jamandre, obviously in Tordesillas’ clumsy attempt to hide her sources.

The article was posted in Tordesillas’ website Vera Files. It was largely ignored though, even by Malaya where she was a columnist. This was because of her huge credibility problem as a result of her closeness since his putschist days to the then senator Antonio Trillanes 4th. Aquino had made him a back-channel negotiator during the Scarborough Shoal stand-off. Trillanes blamed del Rosario for losing it to the Chinese, and tried to convince Aquino not to go ahead with del Rosario’s proposal to file the case against China.

Sources claimed that when Tordesillas posted her exposé, del Rosario was livid with anger that his staff became worried that he was on the brink of a heart attack. Del Rosario was so angry that he allegedly ordered a lie-detector test administered to everyone who had seen the note verbale. His legal counsels however, convinced him to rescind his directive.

The DFA a week later replied to the article: “The Note is about the features in the South China Sea and their implications on Extended Continental Shelf claims. Sabah is not in any way part of the Note.”

This was a patent lie. The Philippines’ note verbale in 2009 read: “The Joint Submission (which the Philippines is protesting) lays claim on areas that are disputed… because of the controversy arising from territorial claims on some of the islands, including North Borneo.”

North Borneo was how the British called that place when it seized it in 1946. Malaysia restored its pre-colonial name, Sabah, when it achieved independence in 1963.

Del Rosario obviously thinks Filipinos are so stupid.




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