Background
The first time the Spratly Islands came into the attention of many Filipinos was in 1956 when in May of that year intrepid Filipino Admiral Thomas Cloma proclaimed the founding of a new State known as Kalayaan (Freedom Land). Despite the lack of endorsement by the Philippine Government, the proclamation by Admiral Cloma elicited international reaction and was considered an act of aggression. Taiwan, China (PRC), South Vietnam, France, the United Kingdom and the Netherlands lodged their protests. Even Taiwan sent a naval task force to occupy the islands and establish a base on an island known as Itu Aba. Eventually, the Philippine Government stepped in when in 1971 the Government sent a diplomatic note on behalf of Cloma demanding Taiwan’s withdrawal from Itu Aba and later in July of the same year then President Marcos announced the annexation or incorporation of a 53-island group known as Kalayaan into part of Palawan. In fact, sometime in 1977 Philippine troops landed in Itu Aba but were repelled by ROC troops. There were no reports of casualties consequent to such encounter.
Claims of several states
The People’s Republic of China, Taiwan and Vietnam are claiming the Spratly Islands in their entirety, while portions thereof are being claimed by Malaysia and the Philippines. China’s claim is based on historical grounds dating as far back as the Yuan Dynasty, the Ming Dynasty and the Qing Dynasty. During the colonization regime, the islands were frequently visited by European powers including Englishman Richard Spratly after whom the islands were named. Even France staked her claim over the islands on behalf of Vietnam, then her colony. At a certain time even Netherlands had attempted to annex portions of the Islands, alleging that the islands formed part of Dutch New Guinea.
The Philippine claim of sovereignty over Spratly is based on the maxim res nullius, which means literally as property without an owner. When the Philippines claimed it, it again followed the Latin maxim of “Res nullius naturaliter fit primi occupantis”, which also means property of no one naturally becomes that of the first occupant. This was so because there was no effective sovereignty over the islands. Additionally, the Philippines relies on her claim that the islands lie within the archipelagic baseline. Accordingly, the 1982 UN Convention on the Law of the Sea pointed out that a coastal State could claim 200 nautical miles of jurisdiction beyond its land boundaries.
Why the interest in the Spratly Islands
The islands are virtually uninhabited. They contain no arable or agricultural land. But the proximity or nearness of the islands to oil and gas producing sedimentary basins strongly suggests the potential for oil and gas deposits. In 1968, oil was discovered and the Mineral Resources Ministry of China estimated that Spratly area holds or contains oil and gas reserves. Significantly, on March 11, 1976 oil was discovered off the coast of Palawan within the Spratly Islands territory. Evidently, these discoveries accounted for renewed interest over the Spratly Islands in addition to rich commercial fishing in the area.
Legal issues
All States in modern times are recognized to exercise sovereignty, subject to treaty obligations, over a belt of sea adjacent to their coastlines. The outer fringe of the belt is the high seas that separate what is known as the territorial sea from international waters. So much has been written about the baseline from which the territorial sea is measured until the same was defined in the Law of the Sea Convention. Many theories have evolved relative to this baseline. To a certain extent confusion arose, as one has to contend with straight baselines, uneven baselines, breadth of the territorial sea and other phenomena.
Historically, there were many interpretations on the scope and limits of the territorial sea. There was the range of vision on a fair day and the range of cannons on shore otherwise known as the cannon shot rule which at start was given a three mile limit, but later extended to 12 miles.
Contributing to further confusion was when the Law of the Sea Convention of 1982 included a set of articles concerning archipelago, defining the same “as a State constituted wholly by one or more archipelagos and may include other islands.” The definition of National Territory in Article 1 of our Constitution clearly points to the Philippine territory as an archipelago. In addition to the territorial sea, international conventions also recognize specialized rights such as the Contiguous Zone and the Exclusive Economic Zone. Accordingly, the Contiguous Zone is a zone contiguous to the Territorial Sea of the coastal State which gives to said coastal State jurisdiction and control over the high seas and accordingly the maximum limit is expressed to be 24 miles. On the other hand, the Exclusive Economic Zone (EEC) confers upon the coastal States the rights to explore the resources of the Continental Shelf and according to the ruling of the International Court its delimitations is 200 miles from the baseline of the coastal State. Accordingly, the coastal State may exercise and enforce customs, immigration and sanitary regulations within the zones.
Summation
In the face of multilateral conventions concluded under the auspices of the United Nations such as the Convention on the Territorial Sea and the Contiguous Zone, done in Geneva on April 29, 1958, Convention on fishing and conservation of the living resources of the high seas, done in Geneva on April 29, 1958 and the 1982 Convention on the Law of the Sea and Optional Protocol, the provisions contained in these conventions will surely be invoked by the interested State parties and eventually will ripen into legal issues or conflicts to be resolved by the appropriate International Tribunal.
(Writer is a former Solicitor General, Philippine Envoy to Canada and a Jurist, UN International Law Commission.)
