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

² 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.

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

rocks and atolls with an area of 64. 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. Some Filipino congressman said the nine islands should belong to the Philippines according to the Treaty of Paris. So he created this theory that the Spratlys should belong to the nearest country according to international law. Since then Taiwan sent troops to the Islands to patrol the Spratly Islands and stationed on Itu Aba Island to prevent further such allegations. On May 17. The PRC denounced Tomas Cloma's alleged "discovery" as totally groundless. Likas). Panata). the Philippines was a colony of America. The French action brought immediate protests from China. and the Philippines is the nearest. However his suggestion was ignored by Washington since the Spratly Islands obviously were not within the Philippine boundary as stated by the Treaty Limits. They proclaimed "formal ownership" over them and renamed these islands and reefs the Kalayaan (Freedomland) Island Group. Loita Island (Nanyue Dao. Patag as the Philippines renamed it). 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 Philippines sent its navy to explore the Spratlys. Along with Thitu Island. During the Second World War.976 square miles. [1. The Thitu Island (renamed as Pag-asa/Pagasa by the Philippines) is the biggest island and the Philippines occupied this island in the 1970s.Is the "Joint Undertaking" the proper way to resolve the issue of ownership in the Spratlys? Dialogue among all parties should be continued. That encompasses 53 islands. Kota). Japan occupied both the Paracels (Paracel Islands) and Spratlys in 1939 shortly after they controlled Hainan Island. [1] 2. It is about 450 nautical miles from Manila and 230 nautical miles from Palawan. In April 1949 . Taiwan. if the islands fell into the communist enemy's hand. shoals cays. This was the first indication of the interests in the Spratly Islands from the Philippines government. or the "Kalayaan Isaland Group" as called by the Philippines. Cooperative activities should be pursued. the Japanese forces on the South China Sea surrendered to the representatives of China. the Philippine President Quirino said that if the Chinese Kuomingtang (Nationalist Party) troops really occupied the Spratlys. 1. The Philippines claims the western section of the Spratlys. and Commodore Reef (Siling Jiao. At the end of the Pacific War in 1945. Saigon as well as France. The Philippine act was immediately met with protests from PRC. 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. However. other islands in the Spratlys occupied by the Philippines include Flat Island (Feixin Dao in Chinese. Nansha Island (Mahuan Dao. 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. The Japanese used Itu Aba Island (Taiping Dao) as a submarine base and a springboard for its invasion of the Philippines. . West York Island (Xiyue Dao.p7-8]. the Philippine security is threatened. Rizal Reef). Lawak).[2] At that time. then Philippine didn't need to occupy them. p11]. reefs. Area of Present Philippine Claims The Philippines began to lay its claim over the Spratly Islands in 1970s. But these approaches should all be done in a transparent manner. Lankiam Cay (Shuanghuan Shazhou. Manila responded to Taipei and Saigon that it had no claims on the Spratlys [1.

a Presidential Decree 1599 was issued. The Philippines government justified its occupation of the Spratly Islands as "the strategic importance of the Kalayaan area to the Philippine security". The pursuit of an private and official claim to . Manila stated that 53 islands and reefs once occupied by Tomas Cloma should belong to the Philippines. the commander¶s name of the task force is also used as a name of a Sand Cay (Dunqian Shazhou). and later the Philippines further occupied Siling Jiao (Commodore Reef).. The task force also reached and surveyed other Spratly Islands including Nanyue Island. The Itu Aba Island is renamed to Taiping Island. 1978. The Chinese government has never relinquished its claim to these islands. they reached Itu Aba Island. The two war ships Taiping and Zhongye set course for the Spratlys and after 3 days' sailing. 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. 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.In early July 1971. In February 1974. Filipino president Marcos signed a Presidential Decree 1596 which claimed the Kalayaan group. The symbols of Japanese sovereignty were removed and a Sovereignty Stone Marker was placed on the Itu Aba Island. 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. 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. proclaiming that the Kalayaan Group was within Philippine EEZ (Exclusive Economic Zone). Thitu Island. in 1980 they occupied Liyue Tan (Reed Bank). among which are occupation and effective administration". the Philippines government stated that the Philippines forces had occupied five islets of the Spratlys. The 1978 decree omitted Spratly Island and include Amboyna Cay which was not claimed by Cloma. 1946. Towards the end of 1946. In April 1972. the principal island of the Spratlys on the morning of December 12. 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. 1978. the Thitu Island is renamed to Zhongye Island. On June 11. 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. 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. [5] By 1978 the Philippines had occupied two more islands. 1946.. 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". 3. North Danger Reef etc." Japan unconditionally surrendered in 1945 after their defeat in the World War II. the Philippine government alleged that the Taiwanese troops on the Itu Aba Island "fired on a boat carrying a Philippine congressman". the Philippines government incorporated the "Kalayaan" group into Palawan Province as a municipality. The Itu Aba Island was surveyed. [3] Meanwhile the Philippines sent its navy to occupy Thitu Island and Nanshan Island. So has China ever abandoned her ownership over the Spratlys? No. 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. The task force sailed from Guangdong (Canton) on December 9." [4] On July 17. 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. They immediately sent telegraphs to Nanjing to report on their arrival and later stationed on the Itu Aba Island. They also held a take-over ceremony.

is not legal. Indonesia.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. Since then. The Spratlys was not res nullius. should draw attention to the deliberate vagueness of China's territorial claims relating to not only the Spratly Islands. which had previously been reluctant to produce any documentary evidence in support of its claims. which lies within the limit of the Exclusive Economic Zone of 200 nautical miles (320 kms) claimed by Indonesia. should the Philippines give these islands to Malaysia or Brunei? 5. produced for the first time a map which indicated what it called its historic waters. China. 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. If we use the proximity basis. repeated Indonesian attempts to obtain an oral or written communication from China giving a clear elucidation of its claims have proved in vain. 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. but Beijing has avoided answering them in a categorical manner.the Spratly Islands should be held to be a violation of international law and a provocation to China. Conclusion The Philippine's claims in the Spratly Islands. many isolated islands in Sulu Sea are much closer to Borneo than to the Philippines. 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.[1. In the past. A similar policy of calculated vagueness is maintained by Beijing in respect of the area of the Natuna gas fields of Indonesia. in 1993. At the fourth informal workshop on the South China Sea attended by China and the ASEAN countries held in Surabaya. and the Philippines' claims based on geographic proximity and national security are illegal. RE-VISITING THE SOUTH CHINA SEA by B. but also the waters of the South China Sea itself. . 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.2001. Does that mean the Philippines will just invade any other nation's sovereign land if they feel that they are not secure? 6. although the Philippines try to base their claims on different bases. p71] 4. 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.

In March 1995. without specifying them. 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. The resolution added that "the right of free passage through the South China Sea is in the national security interest of the US". Mr. the then Chairman of the House International Relations Committee. while assuring Chinese respect for the air and sea navigation rights of the international community over the international waterway of the South China Sea." On June 16. it asserted that China had relevant maritime rights and interests in the waters of the South China Sea." In the face of these US warnings." This statement. Mr. which force-landed in Hainan on April 1. The NSA plane. 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.2001. Since then. US Assistant Secretary of Defence for International Security. but also to re-assert the US position that the air space over the South China Sea constituted international and not Chinese air space.1995. namely. a spokesman of the Chinese Foreign Ministry stated as follows on May 18. On the contrary. 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. In a statement issued on May 10." A Pentagon study said: " The US takes no position on the legal merits of the competing claims. did not specifically renounce Chinese claims that the South China Sea constituted its historic waters.1995:" On the issue of the navigation rights in the South China Sea. told pressmen at Tokyo: "If military action occurred in the Spratlys and this interfered with the freedom of the seas. the Chinese Government holds a definite and clear-cut position. after reportedly colliding with a Chinese plane. was apparently sent there not only to collect electronic intelligence. then we would be prepared to escort and make sure that navigation continues. In the past. 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.1995. Malaysia. Brunei and Vietnam) in which it has no locus standi. Our strategic interest in maintaining the lines of communication linking South-East Asia. . 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. Joseph Nye.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. after the Filipino accusation against Beijing relating to its clandestine occupation of the Mischief Reef. Benjamin Gilman. tabled a resolution in the US House of Representatives warning China against using force or intimidation in the South China Sea. it would not accept China's claim that the entire South China Sea constituted its "historic waters".