06:21 AM December 15th, 2012

By: Hermenegildo C. Cruz, December 15th, 2012 06:21 AM

The announcement by China that its forces would seize foreign vessels in the disputed West Philippine Sea has brought the territorial issue to a crisis. This latest move by China is an act of aggression. It fits the mold.

In this controversy, China is outdoing the two biggest con men of the 20th century who played this game. The two are Benito Mussolini and Adolph Hitler. Their actions, which eventually led to World War II, are structured thus:

1. They made outlandish territorial claims.

2. They threatened to use force to back their claims.

3. Finally, they resorted to force to back their fictitious claims.

China’s actions in our territorial dispute are following the same pattern and have progressed from Stage No. 1 to the brink of Stage No. 3. First, it made claims based on the fictional nine-dash line, then the Communist Party of China mouthpiece, People’s Daily, stated in clear terms that it is ready to use force. Now it has ordered its armed forces to use force to push its claims.

Under international law, a state acquires territory either by discovery or by conquest. In either case, this should be followed by a period of effective occupation. Moreover, the occupation must be continuous. If a territory was occupied by different powers, then the last power in effective occupation of the territory owns it.

The case of the Falkland Islands illustrates this point. The Falklands were occupied in sequence by the Netherlands, France, Spain and finally by Britain. The United Kingdom, as the last country that exercised effective occupation of the territory, owns it to this day. Argentina tried to take it by conquest in 1982, and failed. The Falklands will remain British unless the latter end their occupation voluntarily.

In the case of Hitler and Mussolini, at least they had based their claims on historical facts. The lands Hitler claimed once formed part of Charlemagne “Holy Roman Empire or the First Reich. Hitler claimed that his Nazi Germany was the Third Reich. Thus, the Third Reich being the successor state of the First Reich, he can get back all the former lands that belonged to the First Reich.”

By the same token, when he claimed the lands around the Mediterranean like Albania, Ethiopia, Eritrea, etc., Mussolini was asserting that his fascist state is the heir of the Roman Empire.

So when they made their outlandish territorial claims, Hitler and Mussolini had at least two elements under international law present to support their claims. Their predecessor states—that is, the First Reich and the Roman Empire owned the lands they were claiming by conquest and also once had effective occupation of these lands.

What these two men lacked to legitimize their claims was continuous occupation of these lands. And for these acts, Hitler and Mussolini are labeled the biggest con men of the 20th century when it comes to territorial disputes.

Going by these standards, the Chinese are bigger con men than Hitler and Mussolini. The Chinese are not claiming the islands in the West Philippine Sea by discovery or conquest, or by effective occupation. Their claim that Chinese fishermen once fished in these waters is not an accepted means of possessing a territory. The Americans, Norwegians, Japanese, etc. have been hunting whales in the Antarctic for the last two centuries. If any of them claims the Antarctic Ocean as their territorial waters, their claims will be declared spurious by the international community.

Among all the claimants in the current dispute, we will be the biggest loser if China annexes the disputed area. Brunei, Malaysia, Vietnam and Taiwan can abandon their claims without any adverse effect on their territorial integrity. It is not the same with us. A glance at the map of the disputed area will confirm this fact.

If the Chinese can seize the disputed area, they can shut down access to our biggest ports, all of which face the China Sea. Our remaining ports will be those in the Pacific Ocean, which face away from the major trade routes that passes through the Straits of Malacca. That is equivalent to allowing somebody to seal the front entry to your house, thereby allowing you to enter your house only through the backdoor.

Our territorial integrity will be compromised.

In 1938, the Czechs were faced with a similar dilemma. They agreed to cede the Sudetenland to Hitler and ended up with an indefensible frontier. When Hitler decided to annex the rest of Czechoslovakia, it was a walkover. The Sudetenland has ideal terrain for defense. Without this area, the rest of Czechoslovakia becomes indefensible. Many historians now believe that had the Czechs resisted even alone, they could still have lost the war—but a costly campaign involving heavy German losses could have emboldened the generals who were opposed to Hitler to overthrow him.

Thus, we cannot give up even an inch of ground in the current dispute. If we do so, we will end up with an indefensible national territory. Meaning, we will just open ourselves to further aggression.

We cannot give an inch of ground in the current dispute. We need alliances, not mere visiting forces agreements, to assist us in this dispute.

Hermenegildo C. Cruz, a retired ambassador, has contributed a number of articles on our territorial dispute with China in the West Philippine Sea. He holds a master’s degree in law and diplomacy from the Fletcher School of Law and Diplomacy.

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