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Just a PR stunt? UP’s Jay Batongbacal tells why Duterte’s plant-a-flag in Pag-asa Island doesn’t mean much for PH

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President Rodrigo Duterte may have scored brownie points with his supporters for saying he might go to Pag-asa Island on Independence Day and plant the Philippine flag there, but maritime law expert Jay Batongbacal believes it means little for the country’s foreign policy.

Facing reporters after delivering a speech to soldiers in Palawan Thursday (April 6), Duterte said: “We tried to be friends with everybody but we have to maintain our jurisdiction now, at least the areas under our control. And I have ordered the armed forces to occupy all – these so many islands, I think nine or ten – build structures and place the Philippine flag.”

“In the coming Independence Day, I might, I may go to Pag-asa Island to raise the flag there,” he added.

But Batongbacal, the director of the University of the Philippines Institute for Maritime Affairs and Law of the Sea, explained in a Facebook post that there are no more unoccupied islands in the Kalayaan Islands group as defined in Presidential Decree 1596 since the Armed Forces of the Philippines has already occupied and built structures in Pag-asa Island and the nearby Islands of Lawak, Patag, Likas, Parola, Panata, and Kota.

The AFP has also occupied, controlled, and raised the flag over Rizal Reef and Ayungin Shoal.

“All other islands of the Spratly Islands (from which the Kalayaan Islands have been segregated by the Philippines) have been occupied by Taiwan since 1956 (Itu Aba) and Vietnam since the 1970s (including Spratly Island itself),” Batongbacal said.

Meanwhile, other reefs and shoals in the Kalayaan Islands group have been occupied and controlled by Vietnam since the mid-1970s and China since the late 1980s.

The few remaining reefs and shoals in Kalayaan Island group, Batongbacal explained, have remained unoccupied “on account of the self-restraint exercised by the SCS (South China Sea) claimant countries since the late 1990s.”

In accordance with the 2002 Declaration of Conduct of the Parties in the South China Sea, the maritime law expert said all claimant countries also agreed not to establish any new occupation or inhabitation of any of the remaining unoccupied reefs and shoals.

Batongbacal said any new occupation of a currently unoccupied reef by the Philippines will “aggravate and extend” the maritime dispute it has with China since it will entail the construction of an artifical island or facility “since it will spark a new round of reef-grabbing and amount to an escalation of the current situation in the Kalayaan Island Group.”

For the law porfessor, ordering the AFP to occupy and raise a flag over the islands where the Philippines has already built structures make no sense.

Duterte, he warned, might start a “really major crisis” if what he meant by his order for the AFP to occupy islands in Kalayaan was to go to those which are claimed by other countries. There is also nothing to be gained if he wants the AFP to occupy the uninhabited islands since that will constitute a breach of its commitment to the 2002 Declaration of the Conduct of the Parties to the South China Sea to not engage in actions that will complicate and escalate the dispute.

“If what was meant was to simply order the repair of the runway on Pag-asa and the building of new facilities on presently occupied islands, then that’s exactly what should have been said. No more, no less,” Batongbacal said.

Whichever way Duterte’s statement is interpreted, the professor said it “does nothing for PRRD’s credibility in foreign policy.”