The Spratlys and the Philippine claim By MONG PALATINO Column: Peripheries Published: March 26, 2008 Manila,

Philippines Six Asian countries claim the Spratly Islands -- China, Taiwan, Vietnam, the Philippines, Malaysia and Brunei. Disputes among these six parties have led to various minor military skirmishes, the detention of fisherfolk and diplomatic rows in the past three decades. Control of the Spratlys is important since the region is supposed to contain large deposits of oil, gas, hydrocarbon and mineral resources. The islands are also strategically located in the sea lanes for commerce and transport in the South China Sea. The Spratlys consist of about 26 islands and islets and 7 groups of rocks in the South China Sea found approximately between the latitude of 4 degrees to 11 degrees 30'N. and longitude 109 degrees 30'E. They have a maritime area of 160,000 square kilometers and an insular area of about 170 hectares. The Spratlys are popular among fishermen. However, they are considered dangerous for commercial navigation. Maps from the early part of the last century have advised seamen to avoid passing through them. Japan explored the Spratlys for military reasons during World War II. The British Admiralty and U.S. Navy have also ordered some top secret missions there. But the U.S. Navy never released the new charts of the Spratlys to civilian authorities. Writer Francois-Xavier Bonnet wonders about the role of the Spratlys during the Vietnam War. In 1933 a Philippine senator protested the French annexation of the Spratlys. A parliamentary committee studied the issue but the U.S. government, which controlled the Philippines at that time, did not take an interest in the matter. In 1946 Vice President Elpidio Quirino claimed the Spratlys on behalf of the Philippine government. A year later, the Philippine Secretary of Foreign Affairs declared that the "New Southern Islands" previously occupied by Japan during World War II were part of Philippine territory. In 1955 the Philippine military reported that the Spratly island group was of "vital proximity" to the country. The following year, Filipino navigator and businessman Tomas Cloma issued a "proclamation to the whole world" claiming ownership and occupation of the Spratlys. Cloma sent six letters to the government about the need to settle the question of ownership of the islands. The vice president of the Philippines replied in 1957, assuring Cloma that the government "does not regard with indifference the economic exploitation and settlement of these uninhabited and unoccupied islands by Philippine nationals." According to Filipino law professor Haydee Yorac, the Cloma Proclamation was the first assertion of title to the Spratlys after Japan renounced its ownership of the islands in 1951 and 1952.

In 1978 President Ferdinand Marcos issued a proclamation declaring ownership of most of the islands in the Spratlys. The area was renamed the Kalayaan (Freedom) Island Group. The proclamation laid the following basis for the Philippine claim: "By virtue of their proximity and as part of the continental margin of the Philippine archipelago"; that "they do not legally belong to any state or nation, but by reason of history; indispensable need, and effective occupation and control established in accordance with international law"; and while other states have laid claims to some of these areas, their claims have lapsed by abandonment and cannot prevail over that of the Philippines on legal, historical, and equitable ground." In 1995 President Fidel Ramos articulated the Philippine position regarding the Spratlys issue. He said "I would like to clarify that the Philippines does not only claim eight islands in the Spratlys but owns all islands and waters in the Spratlys as defined in the presidential decree issued by former President Marcos." Militarization of the Spratlys started in the 1970s. The Philippines sent a military contingent to occupy some of the islands in 1971. After four years, the Philippines had already established a military presence in six islands. Today, the Philippines occupies eight islands in the area. The Philippine military insists it is ready to protect and assert Philippine sovereignty in the Spratlys at all costs. However, in the mid-1980s the Philippine defense secretary publicly recommended that the Philippines should give up its claim to the islands, since it had limited capacity to defend them. Prospects are dim for international bodies like the International Court of Justice, International Tribunal on the Law and the U.N. Charter to resolve the issue of ownership in the Spratlys. A military solution should be avoided since it would threaten the stability of the region and the world. The best approach should be the forging of bilateral and multilateral agreements among claimants. Retired Philippine Ambassador Rodolfo A. Arizala has proposed the following options to peacefully settle the Spratlys dispute: Antarctic type of treaty, joint administration and co-imperium or condominium. The Antarctic Treaty was signed in 1959 by 12 countries which agreed to "freeze" their claims on the Antarctic Territories for the duration of the treaty. In the meantime, the claimants vowed to work for the development of new international legal arrangements to settle the dispute and the launching of scientific and cooperative activities in the region. Co-imperium or condominium refers to joint rights of administration. Condominium, in particular, covers the right to dispose of a territory. In 2004 the Philippines, Vietnam and China signed the controversial "Joint Marine Seismic Undertaking in Certain Areas in the South China Sea." The agreement excluded other claimants in the region. The agreement also covered many islands in the Spratlys which are claimed only by the Philippines. Opposition politicians are accusing the Philippine president of having committed treason.

Is the "Joint Undertaking" the proper way to resolve the issue of ownership in the Spratlys? Dialogue among all parties should be continued. Cooperative activities should be pursued. But these approaches should all be done in a transparent manner.

1. Area of Present Philippine Claims The Philippines began to lay its claim over the Spratly Islands in 1970s. The Philippines claims the western section of the Spratlys, or the "Kalayaan Isaland Group" as called by the Philippines. That encompasses 53 islands, reefs, shoals cays, rocks and atolls with an area of 64,976 square miles. It is about 450 nautical miles from Manila and 230 nautical miles from Palawan. The Thitu Island (renamed as Pag-asa/Pagasa by the Philippines) is the biggest island and the Philippines occupied this island in the 1970s. Along with Thitu Island, other islands in the Spratlys occupied by the Philippines include Flat Island (Feixin Dao in Chinese, Patag as the Philippines renamed it), Nansha Island (Mahuan Dao, Lawak), West York Island (Xiyue Dao, Likas), Lankiam Cay (Shuanghuan Shazhou, Panata), Loita Island (Nanyue Dao, Kota), and Commodore Reef (Siling Jiao, Rizal Reef). [1] 2. Brief History of the Filipino Interest in the Spratlys and its Development Out of its economic and strategic motivations, the French government made formal claims to the Spratlys in the early 1930s. On July 25 1933 the French Foreign Ministry announced the occupation of the nine islets of the Spratlys and asserted French sovereignty over them for the first time. The French action brought immediate protests from China.[2] At that time, the Philippines was a colony of America. Some Filipino congressman said the nine islands should belong to the Philippines according to the Treaty of Paris. However his suggestion was ignored by Washington since the Spratly Islands obviously were not within the Philippine boundary as stated by the Treaty Limits. During the Second World War, Japan occupied both the Paracels (Paracel Islands) and Spratlys in 1939 shortly after they controlled Hainan Island. The Japanese used Itu Aba Island (Taiping Dao) as a submarine base and a springboard for its invasion of the Philippines. At the end of the Pacific War in 1945, the Japanese forces on the South China Sea surrendered to the representatives of China. [1,p7-8]. The newly established Philippine government Foreign Minister Qurino advocated on 23 July 1946 that the new Southern Islands (a term used by the Japanese for all the islands in the South China Sea) should be given to his country. This was the first indication of the interests in the Spratly Islands from the Philippines government. In April 1949 , the Philippines sent its navy to explore the Spratlys. An article published in Manila Bulletin on May 15 1950 said that the Philippine government should occupy the Spratly Islands together with the United States because it was closer to Palawan compared with China and Vietnam. On May 17, the Philippine President Quirino said that if the Chinese Kuomingtang (Nationalist Party) troops really occupied the Spratlys, then Philippine didn't need to occupy them. However, if the islands fell into the communist enemy's hand, the Philippine security is threatened. So he created this theory that the Spratlys should belong to the nearest country according to international law. and the Philippines is the nearest. In 1956 Tomas Cloma together with his brothers and 40 crew explored the Spratlys and claimed to have "discovered" and occupied 53 islands and reefs of the Spratlys. They proclaimed "formal ownership" over them and renamed these islands and reefs the Kalayaan (Freedomland) Island Group. The Philippine act was immediately met with protests from PRC, Taiwan, Saigon as well as France. The PRC denounced Tomas Cloma's alleged "discovery" as totally groundless. Manila responded to Taipei and Saigon that it had no claims on the Spratlys [1, p11]. Since then Taiwan sent troops to the Islands to patrol the Spratly Islands and stationed on Itu Aba Island to prevent further such allegations.

In early July 1971, the Philippine government alleged that the Taiwanese troops on the Itu Aba Island "fired on a boat carrying a Philippine congressman". After this the Philippine government announced on July 10 1971 that "it had sent a diplomatic note to Taipei asking that the Chinese garrison be withdrawn from Itua Aba". Manila stated that 53 islands and reefs once occupied by Tomas Cloma should belong to the Philippines, because the area was terra nullius at the time of its occupation and was "acquired according to the modes of acquisition recognized under international law, among which are occupation and effective administration". [3] Meanwhile the Philippines sent its navy to occupy Thitu Island and Nanshan Island. In April 1972, the Philippines government incorporated the "Kalayaan" group into Palawan Province as a municipality. In February 1974, the Philippines government stated that the Philippines forces had occupied five islets of the Spratlys. The Philippines government justified its occupation of the Spratly Islands as "the strategic importance of the Kalayaan area to the Philippine security". [5] By 1978 the Philippines had occupied two more islands, and later the Philippines further occupied Siling Jiao (Commodore Reef), in 1980 they occupied Liyue Tan (Reed Bank). On June 11, 1978, Filipino president Marcos signed a Presidential Decree 1596 which claimed the Kalayaan group. The 1978 decree omitted Spratly Island and include Amboyna Cay which was not claimed by Cloma. It also said that "some countries claimed some parts of this area but they had given up and thus the claims are not valid anymore..." [4] On July 17, 1978, a Presidential Decree 1599 was issued, proclaiming that the Kalayaan Group was within Philippine EEZ (Exclusive Economic Zone). 3. Was the Spratlys res nullius before any Filipino claims? The Philippines base their claims of sovereignty over the Spratlys on the issues of res nullius. The definition ofres nullius is "A thing which has no owner or A thing which has been abandoned by its owner is as much res nullius as if it had never belonged to any one." Japan unconditionally surrendered in 1945 after their defeat in the World War II. Towards the end of 1946, the Chinese government sent a naval task force consisting of four warships to the Spratlys and Paracels to execute demonstrative possessor acts on the spot. The task force sailed from Guangdong (Canton) on December 9, 1946. The two war ships Taiping and Zhongye set course for the Spratlys and after 3 days' sailing, they reached Itu Aba Island, the principal island of the Spratlys on the morning of December 12, 1946. They immediately sent telegraphs to Nanjing to report on their arrival and later stationed on the Itu Aba Island. The Itu Aba Island was surveyed. The task force also reached and surveyed other Spratly Islands including Nanyue Island, Thitu Island, North Danger Reef etc. The symbols of Japanese sovereignty were removed and a Sovereignty Stone Marker was placed on the Itu Aba Island. They also held a take-over ceremony. In December 1947 Territorial Administration Section of Ministry of Internal Affairs published a list of South China Sea Islands Names and a Map of South China Sea Islands. The Itu Aba Island is renamed to Taiping Island, the Thitu Island is renamed to Zhongye Island, the commanders name of the task force is also used as a name of a Sand Cay (Dunqian Shazhou). So has China ever abandoned her ownership over the Spratlys? No. The Chinese government has never relinquished its claim to these islands. After the "Kingdom of Humantiy and Republic of Songhrati-MoracMeads" issue Taiwan has restored the garrison on Taiping Island and the navy has frequently patrolled the Spratlys. Just like what is expressed in Taipei's response to the Philippines: The world has been on notice for years and years that China has a garrison on the Islands. It is childishly naive to entertain any notion that Cloma and associates' claim to "right of discovery" can serve as the legal basis for Philippine government's claiming and the actions as announced by President Marcos. The pursuit of an private and official claim to

the Spratly Islands should be held to be a violation of international law and a provocation to China.[1, p71] 4. Is Geography Proximity a legal Basis for Philippine's claim in the Spratlys? There is no international law saying geographical proximity can be used here to justify its claims in the Kalayaan Island Group. If we use the proximity basis, many isolated islands in Sulu Sea are much closer to Borneo than to the Philippines, should the Philippines give these islands to Malaysia or Brunei? 5. Is National Security a legal basis for the Filipino Claim? If Philippines national security can serve as a legal basis for its claim in the Spratly Islands. Does that mean the Philippines will just invade any other nation's sovereign land if they feel that they are not secure? 6. Conclusion The Philippine's claims in the Spratly Islands, is not legal, although the Philippines try to base their claims on different bases. The Spratlys was not res nullius, and the Philippines' claims based on geographic proximity and national security are illegal.

RE-VISITING THE SOUTH CHINA SEA by B.Raman The incident involving a spy-in-the-sky aircraft of the USA's National Security Agency (NSA) and a Chinese military aircraft over the South China Sea on April 1,2001, should draw attention to the deliberate vagueness of China's territorial claims relating to not only the Spratly Islands, but also the waters of the South China Sea itself. In the past, China had referred to the islands as its territory and to the South China Sea itself as its "historic waters" Does China claim only the islands? Does China also claim the sea as a whole as its territorial waters or does it admit that these islands are located in the "high seas" as interpreted by international maritime law? What are the implications of China's description of the South China Sea as its "historic waters" for navigation rights through the South China Sea and for air rights in the air space over the sea? These are questions which keep arising from time to time, but Beijing has avoided answering them in a categorical manner. A similar policy of calculated vagueness is maintained by Beijing in respect of the area of the Natuna gas fields of Indonesia. At the fourth informal workshop on the South China Sea attended by China and the ASEAN countries held in Surabaya, Indonesia, in 1993, China, which had previously been reluctant to produce any documentary evidence in support of its claims, produced for the first time a map which indicated what it called its historic waters. The Indonesians noticed to their surprise that the Chinese claim line was marked between the Natuna Islands of Indonesia and a gas-bearing area located 250 KMs to the North-East of it, which lies within the limit of the Exclusive Economic Zone of 200 nautical miles (320 kms) claimed by Indonesia, thereby raising the suspicion that China probably looked upon this gasbearing area also as historically belonging to it even though it had never claimed it in the past before the discovery of gas. Since then, repeated Indonesian attempts to obtain an oral or written communication from China giving a clear elucidation of its claims have proved in vain.

It has been the consistent stand of the US that while the ownership of the Spratly Islands is a matter to be decided by China and the concerned ASEAN member-countries (the Philippines, Malaysia, Brunei and Vietnam) in which it has no locus standi, it would not accept China's claim that the entire South China Sea constituted its "historic waters". In the past, the US had also made it clear to Beijing that it would resist any attempt to interfere with international sea and air navigation rights through the South China Sea. In March 1995, after the Filipino accusation against Beijing relating to its clandestine occupation of the Mischief Reef, Mr. Benjamin Gilman, the then Chairman of the House International Relations Committee, tabled a resolution in the US House of Representatives warning China against using force or intimidation in the South China Sea. The resolution added that "the right of free passage through the South China Sea is in the national security interest of the US". In a statement issued on May 10,1995, the US State Department said: "The US would view with serious concern any maritime claim or restriction on maritime activity in the South China Sea that was not consistent with international law." On June 16,1995, Mr. Joseph Nye, US Assistant Secretary of Defence for International Security, told pressmen at Tokyo: "If military action occurred in the Spratlys and this interfered with the freedom of the seas, then we would be prepared to escort and make sure that navigation continues." A Pentagon study said: " The US takes no position on the legal merits of the competing claims. Our strategic interest in maintaining the lines of communication linking South-East Asia, North-East Asia and the Indian Ocean makes it essential that we resist any maritime claims beyond those permitted by the Law of the Sea Convention." In the face of these US warnings, a spokesman of the Chinese Foreign Ministry stated as follows on May 18,1995:" On the issue of the navigation rights in the South China Sea, the Chinese Government holds a definite and clear-cut position, namely, Chinese action to safeguard its sovereignty over the Nansha Islands (Spratly Islands) and the relevant maritime rights and interests will not affect navigation through and the freedom and safety of flights over the international waterway of the South China Sea in keeping with the international laws." This statement, while assuring Chinese respect for the air and sea navigation rights of the international community over the international waterway of the South China Sea, did not specifically renounce Chinese claims that the South China Sea constituted its historic waters. On the contrary, it asserted that China had relevant maritime rights and interests in the waters of the South China Sea, without specifying them. Since then, the US has been regularly sending its ships and aircraft through the South China Sea in order to assert its position that the waters of the South China Sea constituted "high seas" and that the air space over these high seas is international air space and not Chinese air space. The NSA plane, which force-landed in Hainan on April 1,2001, after reportedly colliding with a Chinese plane, was apparently sent there not only to collect electronic intelligence, but also to re-assert the US position that the air space over the South China Sea constituted international and not Chinese air space.