| Table of Contents 1. Area of present claims2. Brief history of the Filipino interest in the Spratlys3. Was the Spratlys res nullius for Tomas Cloma to claim as his private discovery?4. Is geography a legal basis for a sovereignty claim?5. Is security a legal basis for the Filipino claim?6. Conclusion1. Area of Present Philippine ClaimsThe 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 DevelopmentOut 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 of res 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 commander’s 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-Morac-Meads" 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. ConclusionThe 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. [1]Hsiao
Chi-Ching, The Nanshas (Spratlys) Disputes, 1999, p19 |
