Philippine Sovereignty Over the Spratlys: An Achievable Goal?

The Spratly Islands is a group of over 100 scattered islands, islets, shoals, banks, atolls, cays and reefs. Although the total area of all these landforms is a mere 5 square kilometres, they are spread over 160,000 square kilometres of sea space. The land is not arable, and is unable to support permanent crops. These land masses have no meadows, pastures or forests, and has never been occupied by humans until recently. These properties notwithstanding, the Spratly Islands nevertheless possess great strategic and economic value. Situated in the South China Sea, the surrounding waters of this archipelago is one of the most important maritime trade routes of the world. More than half the worlds oil supplies travel through the sea lane controlled by the Spratlysthe second busiest sea lane in the world.(Fernandes, 2008). The sea lanes that pass through the Spratlys serve as the primary passageway for raw materials from Borneo, Mindanao and any other major island in the East Indies going to China, Japan, Russia and the rest of Northeast Asia, which then take the same route in transporting finished products and semi-processed goods. The seas around the Spratlys are fertile fishing grounds, but more important is its potential for holding great reserves of hydrocarbon deposits (i.e., oil and natural gas). In fact, a tripartite policy agreement has been signed by three nations with the exclusive purpose of determining the existence of these resources. Undermining the value of the Spratly Islands is the fact that it has been the source of conflict of its neighbour countries, for each has taken a claim on all or part of this archipelago. It is the purpose of this research to determine whether the Philippines can successfully partake on its contention of sovereignty on the Spratly Islands.

Six states assert their claims on the Spratlys: China, Taiwan and Vietnam claim the entire archipelago, while the Philippines, Malaysia and Brunei claim sovereignty over portions of the area. Except for Brunei, all the other countries have established a military presence in the Spratlys. These various national efforts to stake out South China Sea claims stem largely from jurisdictional rights for coastal states over offshore seabed resources as set out in the 1982 UN Convention on the Law of the Sea (LOS Convention) This instrument codifies new rights that accrue to a state having territorial sovereignty over an island or group of islands. Paramount among these is the exclusive right to exploit living and nonliving resources of the water column and seabed surrounding an island or archipelago. Under the LOS Convention, the state holding valid legal title to sovereignty over an island is permitted to establish a twelve-mile territorial sea and a 200-mile exclusive economic zone (EEZ) around that island (Joyner, 1999). Thus, a littoral state exercising sovereignty over the Spratlys will acquire exclusive rights to explore and exploit living and non-living resources within the area bordered by the outermost islands. Motivated by security concerns and economic interests, these claimant states began in the late 1960s to make overlapping sovereignty claims to Spratly Islands, a process that effectively has led to the de facto military partition of the Spratly Islands archipelago (Joyner, 1999). Claims to sovereignty over territory in the Spratlys are based on acts of discovery, occupation, and, more recently, on certain inferred rights over continental shelf delimitation. Legal facets of the claims became more relevant for governments when the prospects for petroleum exploration became real during the 1970s and the 1982 LOS Convention emerged as the standard for demarcating offshore jurisdictional limits for resource exploitation.

China and Taiwan base their claims to sovereignty over Spratly islands on historical evidence, by referring to archaeological finds and ancient documents. Both countries assert that Chinese people were the first to discover the Spratlys, insisting that such discovery was made as early as 200 B.C. However, the validity of the evidence presented by China is questionable. Although an archaeological object may feature Chinese style, or was originally made in China, it cannot be assumed that the object was brought to the island by someone who represented China as a state. indeed, it was only in 1988 that China, by attacking the Vietnamese Navy force who have garrisoned in the Spratly islands, secured control of certain features in the Spratly islands Vietnam claims the entire Spratly Island chain as an offshore district of Khanh Hoa Province. Hanoi maintains garrisons on about 21 geographical features on the Spratly Islands. In 1988, Vietnam had an estimated 350 troops stationed on these islands and by 1992 the total had grown to 1,000. The main garrison on Sin Crowe Island is heavily fortified with coastal artillery and anti-aircraft batteries. In addition to a military presence, the Vietnamese have undertaken extensive construction in and around the South China Sea (Rowan, 2005). In 1989, Vietnam built a small airstrip on Spratly Island and artificial structures on Vanguard Reef, Prince Consort Bank, and Grainger Bank. Hanois claim to these islands, however, has often been contested because these geographic features are submerged in several feet of water. Overall, Vietnamese claims are based on a combination of historical data and the continental shelf principle. According to Vietnamese court documents during the reign of King Le Thanh Tong, the Vietnamese claimed sovereignty over the Spratly Islands. This claim was well documented during the 17th century when many Vietnamese maps incorporated parts of the Spratly archipelago into Vietnam (url: http://en.wikipedia.org/wiki/Spratly_Islands_dispute#Basis_for_PRC.27s_and_ROC.27s_clai ms).

In 1979, by publishing the official map of the Malaysian outer limit of the continental shelf, Malaysia asserted for the first time its claims to the sovereignty over twelve features of the Spratly islands. The Malaysian claim is based on geography and relevant provisions of the LOS Convention. The general approach taken by Malaysia is rooted in the assumption that a state possessing a continental shelf also possesses sovereign rights over land formations arising from that continental shelf. In evaluating the Malaysian claim, Christopher C. Joyner argued that such claims appeared ill-founded, misguided and flawed under contemporary international law (1998). In fact, there is no provision in international law to support acquisition of territory by using the principle of the continental shelf Brunei claims jurisdiction over the seas surrounding the Louisa Reef in the southern part of the Spratly islands and like Malaysia, Bruneis claim is also based on the provision of the LOS Convention. The Philippines base their claims of sovereignty over the Spratlys on the issues of Terra nullius and geography. Terra nullius is a Latin expression deriving from Roman law meaning "land belonging to no one" (or "no mans land"), which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished sovereignty (url: http://en.wikipedia.org/wiki/Terra_nullius). The Philippines contend their claim was terra nullius as there was no effective sovereignty over the islands until the 1930s when France and then Japan acquired the islands. When Japan renounced their sovereignty over the islands according to the San Francisco Treaty, there was a relinquishment of the right to the islands without any special beneficiary. Therefore, argue the Philippines, the islands became terra nullius and available for annexation.

But some experts disagree, because the Philippines did not register these claims until the 1970s. In 1956, a private Filipino citizen, Tomas Cloma, unilaterally declared a state on 53 features in the South China Sea, calling it "Freedomland". As the Republic of China moved to occupy the main island in response, Cloma sold his claim to the Philippine government, which annexed (de jure) the islands in 1978, calling them Kalayaan. The Philippine claim to Kalayaan group on a geographical basis can be summarized using the assertion that Kalayaan is distinct from other island groups in the South China Sea, because of the size of the biggest island in the Kalayaan group. A second argument used by the Philippines regarding their geographical claim over the Spratlys is that all the islands claimed by the Philippines lie within its 200-mile Exclusive Economic Zone according to the 1982 United Nations Convention on the Law of the Sea (url: En.wikipedia.org/wiki/Spratly_Islands_dispute). But this argument still requires that the islands were terra nullius. Experts and analysts are divided on the issue on the legitimacy of the Philippines claims on the Spratly Islands. In a November 7, 1996 poll, 47.6% of Asian business leaders indicated the Philippines had the strongest claim to the Spratly Islands. China accounted for 24.1% of the vote, while Vietnam claimed 13.9% of the vote, Malaysia picked up 9.6%, Taiwan carried 3.6%, and Brunei captured 1.2% of the business leaders' votes (url: http://www1.american.edu/ted/ice/spratly.htm).
The actual Philippine claim over the Spratly Islands began in May 1956, when Tomas Cloma, owner of a Philippine fishing vessel company and director of the Philippine Maritime Institute, declared the founding of the new state called "Kalayaan". He found the islands while he, with his brothers and 40 crew, was adventuring in the vast South China Sea. Observing that there was no human settlement nor national flag present on them, he decided to establish the Kalayaan state. He posted a document in English, entitled Notice to

the Whole World, on all features he claimed. His claim comprises about fifty features among the Spratly group. His declaration was met with violent reactions from other countries like China and South Vietnam, as well as the European countries of France, United Kingdom, and the Netherlands, who were representing their colonies in Southeast Asia. While the Philippines did not endorse the new state to the world, it acknowledged it as the true sovereign state. In September 1956, after the Republic of China occupied the largest island, Ligao Island (Itu Aba), Tomas Cloma decided to cede and sell all the territories of his state to the Philippines for just one peso.