On Spratlys and the Scarborough Mess

I see it fitting to repost this entry I made almost 10 months ago in light of the recent dispute with China over the Scarborough Shoal.

Everything is how I understood things based on the late Haydee Yorac’s paper PHILIPPINE CLAIM TO THE SPRATLY ISLANDS GROUP, thus I might be wrong with the interpretation. Anyone is absolutely welcome to critic this post.

Presidential Decree No. 1596 cites the following legal grounds as bases for the Philippine claim to the Spratly Island Group: (1) the islands are part of the continental margin of the Philippine archipelago; (2) the islands do not belong to any state, and by reason of history, indispensable need and effective occupation, the territory belongs to the Philippines; and (3) claims by other states had lapsed by reason of abandonment and cannot prevail over that of the Philippines on legal, historical and equitable grounds.

• Presidential decree based its claim on the Contiguity theory, where it states that the closest state/country (physical adjacency) has the right to ownership. Same theory could be used as evidenced in the Las Palmas case of United States v. Netherlands, where both countries were thousands of nautical miles off of the island, but US asserted the terra firma concept. The same concept can be asserted by the Philippines, Palawan being the nearest island of considerable size. 

• The Philippines also asserts its right via the principle of terra nullius, which holds that it was previously unclaimed by a sovereign state, to both Spratlys and the Scarborough Shoal. The latter being included by virtue of the PD No.1599 issued by President Ferdinand Marcos on June 1978 stating the country's claim in an Exclusive Economic Zone (EEZ) up to 200 nautical miles (370 km) from the baselines from which their territorial sea is measured. More recently, Arroyo enacted the Philippine Baselines Law of 2009 (RA 9522). The new law classifies the Spratly Islands and the Scarborough Shoal as a regime of islands under the Republic of the Philippines.

• Philippines cannot put claim through assertion of the historical concept since we are one of the latest claimants, yet based on territorium nullius and effective occupation, when Japan signed Treaty of Peace with the Allies (1951) and the Bilateral Treaty of Peace with the Republic of China, the islands were without sovereignty and subject to acquisition via occupation. When Chinese troops “barged” into the islands by building a meteorological station there in 1945, it was actually violating international laws since the islands were still in possession by the Japanese (1945-1951) and this should be taken against the Chinese. Furthermore, taking into account some critical dates, Filipino navigator Tomas Cloma’s expedition on May 15, 1956 makes him the first claimant of the islands after Japan renounces territorial claims in the 1951 treatises. And ever since, the Philippines has exercised active and effective sovereignty over the island and has this to back up the claim.

• China couldn’t use historical assertions since antiquated evidences do not indicate any effective and active assertion of sovereignty over the islands. In addition, it cannot use the China-Tonkin delimitation treaty since it was just between the two parties , and not involving claimants such as the Viets and the Philippines. 

• Vietnam has one of the stronger claims to the islands based on the Clipperton case. A French expedition was sent to exercise sovereignty over Clipperton Island, but no exercise of sovereignty was made over the course of 30 years until a French warship visited again the island and shortly thereafter, a Mexican vessel claimed sovereignty. Relating it to the topic at hand, Yorac said “it is to be noted that this assertion of sovereignty did not go unchallenged. China claimed earlier sovereignty. Japan, on the other hand, claimed solemn occupation of the territory by Japanese subjects with the authorization of the Imperial Government. Either claim of sovereignty were valid, France, and therefore, Viet-Nam would be in the same position as Mexico in the Clipperton Island case.”