I have also digested at the latter part of the paper the legal basis of the claim of ownership of the Philippines, which I found to be weak and dubious.
However, from the vantage of the provisions on Exclusive Economic Zone (EEZ) contained in the UN Convention on the Law of the Sea (UNCLOS), perhaps the Philippine claim may have some basis.
The conflicting claims of the claimant states may soon reach the dispute resolution mechanism/body created under the said convention.
THE SPRATLYS : LEGAL BASIS OF THE CLAIM
OF THE
A.B., LL. B., LL. M.
Professor of Law, FEU (retired)
Partner, Laserna Cueva-Mercader & Associates Law Offices
Founder, Las Pinas City Bar Association
Past Vice President, IBP PPLM Chapter
INTRODUCTION
This paper will limit itself to the legal basis of the claim of the Socialist Republic of Vietnam[i] to the Spratlys.
It will not discuss the legal positions of the other state-claimants.[ii]
In addition, the author will discuss the geography of the Paracels and the Spratlys, the islands controlled by the individual state-claimants, recent political developments in relation to the Spratlys, and the legal position of the Republic of the
The author relied heavily on the following primary materials[iv]published by the Ministry of Foreign Affairs of Vietnam[v]:
1. White Paper on the Hoang Sa (Paracel) and Truong Sa (Spratly)
2.
3. The Hoang Sa and Truong Sa Archipelagoes:
4. Dossier: The Hoang Sa and Truong Sa Archipelagoes (Paracels and Spratly), Part I and Part II.
5. Situation of the Paracels and Spratly at the End of 1993. An unpublished listing of islands in the Paracels and the Spratlys.
GEOGRAPHY: PARACELS AND SPRATLYS
The Paracels and the Spratlys are located in the
The Vietnamese call the Spratlys Truong Sa. They call the Paracels Huong Sa.[xii]
The Spratlys is a group of small islands, reefs, shoals and cays located between 8 degrees and 11 degrees, 40 minutes North latitude.[xv]It is located 250 miles[xvi]from Cam Ranh Bay, 280 miles[xvii]from Pahn Thiet, and 210 kilometers from Hon Hai ( all located in
In relation to the other major claimants, the distances of the Spratlys are as follows:[xix]
* To
* To Palawan (
* To
The Spratlys contains nine (9) islands of relatively significant size:[xxiii]
1. Truong Sa or
2. An Bang or Amboyna Cay
3. Sinh Tonh or Sin Cowe
4. Thai Binh or Itu-Aba
5. Thi Tu
6. Loai Ta
7. Song Tu Tay or South West Cay
8. Song Tu Dong or North East Cay
The Spratlys links the Pacific Ocean and the
The Paracels also has a total land area of 10 square kilometers spread over a sea zone of 15,000 to 16,000 square kilometers.[xxvi]
Vietnamese ancient history treated both the Paracels and the Spratlys as one entity. Due to advances in the sciences of navigation and geography, such group is now divided into two as the Paracels and the Spratlys.[xxvii]
The ancient Vietnamese names for the Paracels[xxviii]and the Spratlys (as a group) were:[xxix]
1. Bai Cat Vang (Golden Sandbank)
2. Hoang Sa
3. Van Ly Hoang Sa
4. Dai Truong Sa
5. Van Ly Truong Sa
THE CLAIMANTS AND THE
In the Spratlys,
1. Da Lat (Ladd Reef)
2. Dao Truong Sa (Spratly
3. Da Tay (
4. Da Giua (
5. Da Dong (
6. Dao An Bang (Amboyan Reef)
7. Thuyen Chai (Barque
8. Da Phan Vinh (Pearson Reef)
9. Bai Toc Tan (Alison Reef)
10. Da Nui Le (Cornwallis South Reef)
11. Da Tien Nu (Tennent Reef)
12. Da Lon (Great Discovery Reef)
13. Da Len Dao (Landsdowne Reef)
14. Da Hi Gen
15. Dao Sinh Ton (
16. Da Gri-san
17. Dao Nam Yet (
18. Dao Son Ca (Sand Cay)
19. Da Nui Thi (Petley Reef)
20. Dao Song Tu
21. Da Nam (South Reef)
The
1. Dao Song Tu Dong (Parola or North East Cay)
2. Dao Dua (Ben Lac) (Likas or
3. Dao Thi Tu (Pag-asa or
4. Dao Binh Nguyen (Patag or
5. Dao Vinh Vien (Lawak or
6. Dao Cong Do (Rizal or Commodore Reef)[xxxii]
7. Con San Ho Lan Can (Panata or Lamkian Cay)
8. Dao Loai Ta (
1. Da Chu Thap (Fiery Cross Reef)
2. Da Chau Vien (Cuarteron Reef)
3. Da Gac Ma (Johnson Reef)
4. Da Hu-go (Hughes Reef)
5. Da Gaven (Gaven Reef)
6. Da Su-bi (Subi Reef)
7. Mischief Reef[xxxiv]
1. Da Ky Van (Mariveles Reef or Terumbu Mantanani)
2. Da Kieu Ngua (Ardasier Reef or Terumbu Ubi)
3. Da Hoa Lau (Swallow Reef or Terumbu Layang)
VIETNAMESE LEGAL POSITION
An 1838 Vietnamese map by Phan Huy Chu entitled Dai Nam Nhat Thong Toan Do mentioned the Spratlys under the name Van Ly Truong Sa as part of Vietnamese national territory.[xxxvii] The ancient name of
French Indochina consisted of
Other ancient maps relied on by
1. "Toan Tap Thien Nam Tu Chi Lao Do Thu" (Route Map from the Capital to the Four Directions), 17th century, prepared by Do Ba Aka Cong Dao. It depicts the Paracels and the Spratlys as part of Quang Ngai District, Quang
2. "Giap Ngo Binh Nam Do," circa 1774, prepared by Bui The Dat.
3. "Phu Bien Tap Luc," 18th century, prepared by Le Qui Don (1726-1784). It also shows the Paracels and the Spratlys as part of Quang Ngai district.
4. "Dai
5. "Dai Nam Nhat Thong Chi", 1882, a book written under the Nguyen Dynasty (1802-1945), which showed the Paracels and the Spratlys as part of Quang Nai province.
In 1852
(In 1884 the Nguyen Emperors of Vietnam entered into a treaty with France).
In 1933 the Spratlys were "incorporated into the French colony of Cochinchina".[xli]
1. Spratly
2. Amboine Caye
3.
4. Fiery Cross (or Investigation)
5.
6.
7. Itu Aba
8. Tizard Bank
9. Loaita Bank
10. Thi Thu Reef
11. North Latrang
12. North Danger
After taking possession of the Spratlys, the French Ministry of Foreign Affairs published a notice in the French Journal Official, dated July 26, 1933 (page 7837).[xliii]
6. Thi Thu Island, possession taken on April 12, 1933; "latitude 11 deg. 7 min. and longitude 114 deg. 16 min. east of Greenwich."
Notice of occupation was made by
The French Governor-General of Indochina "signed Decree No. 4762-CP, dated December 12, 1933, making the Spratlys part of the Cochinchina province of Ba-Ria" (now Phuoc Tuy province).[xlvii]
In 1934
In 1938 the Indochina Meteorological Service set up a weather station on Itu-Aba island[xlix]which remained under French control from 1938 to 1941. When World War II erupted in 1941
In 1939 the Japanese military government announced its decision to take possession of the Spratlys.[li]
During the last
In the 1951 "San Francisco Peace Treaty"
After the Japanese defeat in 1945,
In 1949
Rebutting the claim of the
x x x.
Since the
1. 1951 San Francisco Peace Treaty[lxi]
2. 1943
3. 1945
4. 1945
In May 1956, "after Cloma created his so-called 'Freedomland', the French charge d'affaires in Manila xxx reminded the Philippine government of the French rights resulting from the 1933 occupation."[lxv]
In 1956
From 1956 to 1963, Vietnamese naval troops built "sovereignty steles" in the Spratlys:[lxvii]
1. August 1956 - cruiser Tuy Dong (HQ-4)
2. 1961 - cruisers Dan Kiel and Van Dan landed on Song Tu Tay (South West Cay), Thi Tu, Loai Ta, An Bang.
3. 1962 - cruisers Tuy Dong and Tay Kiet landed on Truong Sa (Spratly Island proper) and Nam Ai (Nam Yit).
4. 1963 - all sovereignty steles were rebuilt by cruisers Hung Giang and Chi Lang.
On June 8, 1956
It claims that on June 28, 1974 during the conference on the United Nations Law of the Sea (UNCLOS) in
It reminds the
The most aggressive claimant in the region is
Assailing
x x x.
The islands , islets, shoals and banks that the People's Republic of China claims as 'the outposts of Chinese territory' cover the entire South China Sea, and would virtually convert the whole sea into a communist Chinese lake. x x x.
PHILIPPINE LEGAL POSITION
P.D. No. 1596[lxxxii] Vietnam protested P.D. No. 1596 which annexed the Spratlys in Note No. 109/AC 3, Sept. 28, 1979, issued by the Hanoi government, calling the same as "ineffective in the eyes of international law." The Note stated that
The Philippine Government registered its claim with the United Nations Secretariat on May 20, 1980, with a technical description of Kalayaan.[lxxxiv]
Kalayaan was "discovered" by Tomas Cloma, a Filipino seafarer, between 1947 to 1956, and named it
The
The first ever attempt of the
A Filipino political scientist, Prof. Estrella D. Solidum, has done an extensive study on the Spratlys issue on the occasion of the 1998 Philippine Centennial Celebration, which this researcher quotes extensively, thus:[lxxxviii]
x x x.
In 1956, Filipino navigator Tomas Cloma asserted ownership over the Spratly Island Group by issuing a "Proclamation to the Whole World." Ownership was claimed based on discovery and occupation of the territory, which Cloma re-named "Freedomland," consisting of 33 islands of sand cays, sand bars, coral reefs, and fishing grounds involving an area of 64,976 square miles.
xxx In 1971, the Philippine Government sent a diplomatic note to
In 1974, the Philippine government declared that it had garrisoned five of the islands. On 11 June 1978, President Marcos issued Presidential Decree 1596, placing most of the islands, cays, shoals, and reefs within Philippine territory and naming them collectively as the Kalayaan Island Group. Some Filipino nationals
The present claimants to the Spratlys are the following countries: the People's Republic of
xxx (A)lthough the
The legal grounds for the Philippine claim as stated in Presidential Decree 1596 are 1) the islands are part of the continental margin of the Philippine archipelago; 2) the islands do no belong to any state and the Philippine has made effective occupation; and 3) claims by other states had lapsed because of abandonment.
x x x Several proposals have been made for the peaceful use of the Spratlys but the particular suggestion of China for the joint development has been based on assumed acknowledgment by others of its sovereignty over the Spratlys.
x x x.
Former Ambassador Rodolfo Arizala, in a legal article, has criticized the apparent confusion or lack of coherence in the legal stance and international strategy of the
x x x.
Despite the existence of Presidential decree No. 1596 declaring the Kalayaan Group as part of the Philippine territory; the reservation we made at Montengo Bay, Jamaica in 1982[xc], concerning Kalayaan Islands; and the various Executive Orders issued on the subject mentioned above[xci], it appears we do not have yet a
clear and consistent concept regarding the nature of our claim in the Spratlys in so far as Kalayaan Island Group is concerned. x x x.
However, if we consider now that Mischief or Panganiban Reef is part of our exclusive economic zone (EEZ), then it weakens our claim that the Kalayaan Island Group is part of our national territory because we admit that we not own said territory. For under Article 58 of the UNCLOS, the exclusive economic zone (EEZ) is considered part of the high seas and "no State may validly purport to subject any part of the high seas to its sovereignty, according to Article 87 of the same Convention. We have no absolute right to prohibit or hinder the passage of foreign vessels as well as the building of structures in the area due to "freedom of navigation" and other freedoms guaranteed in Article 87 of the UNCLOS.[xcii] Arizala also cited Articles 56 and 60 of the UNCLOS. A state has sovereign rights (not
sovereignty) over its EEZ, but such rights are not exclusive because such rights are subject to the rights and duties of other States.
x x x.
In view of all the foregoing, it appears advisable that the Philippines articulate in clear language whether it considers the Mischief or Panganiban Reef and the Kalayaan Island Group as part of its exclusive economic zone or of its territory as stated in Presidential Decree No. 1596 and the reservation No. 4 of the Declaration made by the Philippines on 10 December 1982 at Montengo Bay, Jamaica. If in the latter case, (claim of
sovereignty as owner), the
(See also: Rodolfo Arizala's related legal article on UNCLOS at The Lawyers Review, May 31, 1996, Vol. X, No. 5, pp. 16-21).
x x x.
REVIEW OF PHILIPPINE RELATIONS WITH
The Philippine-Chinese controversy over the Spratlys erupted during the term of Pres. Fidel V. Ramos and has continued during the present term of Pres. Joseph Ejercito Estrada.
A Filipino international relations professor, Benito Lim, has made a recent study of the effects of the Spratlys issue on Philippine-Chinese relations, which this researcher quotes extensively, thus:[xciv]
The most controversial issue between the
The agreement stated that both countries would shelve the sovereignty issue, and adhere to the ASEAN Manila Declaration enjoining all claimants in the Spratlys to settle their conflicting claims peacefully.
The P.R.C. occupation of Panganiban Reef (Mischief) in the Kalayaan Islands, discovered in early 1995, the recurrent entry of Chinese patrol boats and fishing vessels, and the attempted occupation of the Scarborough Shoal, have not only engaged the attention of the Ramos government but have led to confrontational behavior that marked Philippine-P.R.C. diplomacy over the Spratlys. x x x.
x x x.
xxx (O)fficials from the Department of Foreign Affairs xxx have managed to convince the Chinese to sign a Code of Conduct agreement on the procedure and protocol in future actions in the Spratlys. xxx. The Code has become the current basis for resolving differences between the two countries.
x x x.
Unless all claimants give thought to an agreement or a protocol detailing more binding and realistic means of conserving and sharing these resources, the agenda of all claimants on sovereignty may harden, deterring all future negotiations.
x x x.
The Ramos administration xxx has achieved a milestone in initiating the Code of Conduct. x x x.
Prof. Lim made a more recent inventory (1998) of the islands controlled by each of the claimants, thus[xcv]:
x x x x.
shoals, cays, and rocks, depending whether it is high or low tide, the group is nearest to
Another Filipino international relations professor, Alma Ocampo-Salvador, has conducted a study on Philippine-European relations in relation to the Spratlys issue, which this researcher quotes, thus:[xcviii]
Through ASEAN, the
the
CONCLUSION
The consensus among the Asean members is to peacefully resolve the Spratlys issue within the Asean mechanism and/or multilaterally among the claimants themselves and not to internationalize the issue by involving nuclear powers which are remotely affected by the issue, such as the
There is a general agreement among the claimants to explore the concept of joint-venture type of economic development of the Spratlys. This is warranted by the current economic crisis facing the region.
(End)
[i] Henceforth, the term "
[ii] Other members of the class have been assigned to report on the legal claims of the other state-claimants. The author was assigned specifically to discuss the legal position of
[iii] The legal position of the People's Republic of
[iv] The Vietnamese homepage for history, culture and information are: a)
[v] The author wishes to thank Mr. Mai Huy The, second secretary, Embassy of the Socialist Republic of Vietnam, for his assistance. The Vietnamese Embassy is located at
[vi] Hereinafter referred to as "White Paper," for short.
[vii] Hereinafter referred to as "VS", for short.
[viii] Hereinafter referred to as "HS", for short.
[ix] Hereinafter referred to as "Dossier I" and "Dossier II", for short.
[x] Hereinafter referred to as "SP", for short.
[xi] Dossier I, 9. "China Sea" or "
[xii] Dao Truong Sa Dao is the ancient name used by Vietnamese for the Paracels and the Spratlys, as written in the Annals of Lo Qui Don, entitled Phu Bien Tap Luc. See White Paper, 69.
[xiii] VS, 7.
[xiv] See P.D. No. 1596 and P.D. No. 1599, both dated June 11, 1978.
P.D. No. 1596 annexed the Kalayaan Group of
P.D. No. 1599 fixed the 200-mile exclusive economic zone of the
See also Jorge Coquia and Miriam Defensor-Santiago, Public International Law (Quezon City: UP Law Center, 1994), 342.
[xv] White Paper, 67. In Dossier I, 12,
[xvi] In Dossier I, 12,
[xvii] In Dossier, 12,
[xviii] VS, 7; White Paper, 69.
[xix] White Paper, 69.
[xx] In Dossier I, 12,
[xxi] In Coquia, 342, the distance is stated as 400 kilometers.
[xxii] In Dossier, 12,
[xxiii] id., 67-69.
[xxiv] This explains the international security and international commercial navigation implications of the Paracels and the Spratlys issue. Both are rich in guano (10 millions tons reserve, per a 1926-1927 Vietnamese survey), marine products, and oil and gas reserves. See Dossier I, 10.
[xxv] Dossier I, 9. See also "SP", p. 2.
[xxvi] SP, 1.
[xxvii] Dossier I, 9.
[xxviii] HS, 7 - starting in the 16th to the 17th century Westerners called the Hoang Sa as "Paracels, Pracel, or Parcel".
[xxix] HS, 7.
[xxx] SP, 1.
[xxxi] id., 3.
[xxxii]
[xxxiii] id., 2. (See also: Juliet Labog-Javellana, et. al., "RP hits Sino buildup in Spratlys," Philippine Daily Inquirer, Nov. 6, 1998, p. 1).
[xxxiv] The
by the
are military in nature.
[xxxv] SP, 3.
[xxxvi] id.
[xxxvii] White Paper, 69.
[xxxviii] HS, 9.
[xxxix] HS, 8-9.
[xl] White Paper, 70.
[xli] id., 70.
[xlii] id., 70-71, citing H. Cucherousset, L'Eveie Economique de l'Indochine (No. 790, May 28, 1933).
[xliii] id., 71-73. It described the technical description of the islands as follows:
1. Spratly Island, possession taken on April 13, 1930; "8 deg. 39 min. latitude north and 111 deg. 55 min. longitude east of Greenwich";
2. Islet Caye of Amboine, possession taken on April 7, 1933; "70 deg. 52 min. latitude north and 112 deg. 55 min. longitude east of Greenwich";
3.
4. Two islands (not named), possession taken April 10, 1933; "latitude 11 deg. 29 min. north and longitude 114 deg. 21 min. east of Greenwich";
5. Loaita Island, possession taken April 12, 1933; "latitude 10 deg. 42 min. north and longitude 114 deg. 25 min. east of Greenwich";
[xliv] id., 73.
[xlv] id., 73.
[xlvi] id., 73-74.
[xlvii] id., 78.
See also VS, 54: On Sept. 6, 1973,
See also Dossier II, 48-49: On Dec. 9, 1982 the Socialist Republic of Vietnam created the Truong Sa district under Dong Nai province. On Dec. 28, 1982 the Socialist Republic of Vietnam "merged Truong Sa district into Phu Khanh province" (removed from Don Nai province).
[xlviii] id.; citing the 22nd Report of the Oceanographic Institute of Indochina,
[xlix] With International Code No. 48919 and listed under "French Indochina-Cochinchina."
[l] id., 78.
[li] id., 81.
[lii] id.
[liii] id., 81.
[liv] id, 73-74.
[lv] id., 67.
[lvi] id., 73, citing Le Tempe, April 7, 1939 (a French daily).
[lvii] id., 75.
[lviii] id., 74, citing the arbitral case of US vs. Netherlands, 1928, over
[lix] id., 74.
[lx] id., 75.
[lxi] Article 2 (f) of this Treaty provides: "(f) Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands."
[lxii] See White Paper, 89:
[lxiii] id., 76.
[lxiv] id.
[lxv] id., 81, citing Prof. C. Rousseau, Revue Generale de Droit International Public, July-Sept. 1972, p. 830.
[lxvi] id., 81.
[lxvii] id., 81-82.
[lxviii] id., 88.
[lxix] id., 76, citing The New China Daily, Aug. 24, 1951 issue.
[lxx] During the negotiation for the 1951 San Francisco Peace Treaty,
[lxxi] id., 76.
[lxxii] id., 76, citing The Far Eastern Economic Review, December 31, 1973 issue.
[lxxiii] id., 81, citing, for instance, The Vietnam Press, June 16, 1956 issue.
[lxxiv] id.
[lxxv] VS, 54.
[lxxvi] id., 53.
See also HS, 17: On July 10, 1971
[lxxvii] White Paper, 76.
[lxxviii]
[lxxix] see White Paper, 88, where Vietnam argued that "...the illegitimacy of China's claims over the Huang Sa and Truong Sa archipelagoes is due to lack of animus ocupandi on China's part...Unlike what has been done by Vietnam, activities by private Chinese citizens (e.g., fishing) were never followed by governmental action."
[lxxx] HS, 33.
[lxxxi] White Paper, 88.
[lxxxiii] "Kalayaan", for short.
[lxxxiv] Coquia, 342.
[lxxxv] id.
[lxxxvi] id. The
[lxxxvii] Estrella D. Solidum, "Philippine External Relations with
[lxxxviii] id.
[lxxxix] Rodolfo Arizala, "RP's Claim in the Spratlys," The Lawyers Review, January 31, 1999, 6-8.
[xc] When the Philippines signed the United Nations Convention on the Law of the Sea at Montengo Bay, Jamaica on December 10, 1982, it made a reservation in paragraph 4 of its Declaration that "such signing shall not in any manner impair the sovereignty of the Philippines over any territory over which it exercises sovereign authority, such as the Kalayaan Islands and the waters appurtenant thereto." (Arizala, 6).
[xci] E.O. No. 738, Oct. 3, 1981; E.O. No. 1034, June 25, 1985; E.O. No. 329, July 24, 1987; E.O. No. 328, June 5, 1988; and E.O. No. 186, July 12, 1994 - re: the creation of the "Cabinet Committee on Maritime and Ocean Affairs." (Arizala, 6).
[xcii] Arizala, 7, citing Jorge Coquia and Miriam Defensor-Santiago, Public International Law (Quezon City: UP Law Center. 1989), 414.
[xciii] Arizala argues that despite the fact that the UNCLOS has been signed by us in 1982, we have up to now not yet passed appropriate legislation to implement its provisions because the 1994 Philippine National Marine Policy (NMP) preferred to adhere to "existing Philippine law and customary international law", rather than implement the provisions of the UNCLOS in defining the Philippine baselines as an archipelago (Arizala, 7).
Arizala asks: "If we have not yet formally adhered or decided to implement the UNCLOS, how could we now validly invoke its provisions regarding our claim in the Spratlys, specifically the Mischief or Panganiban Reef?" (Arizala, 8).
He argues that "our national interests shall be better protected if we adhere now to the UNCLOS because it establishes a single regime of the sea for big and small countries and it provides wide range of mechanisms for peaceful settlement of disputes xxx." (id.).
[xciv] Benito Lim, "A History of Philippine-China Relations," in Pablo-Baviera, 201-278.
[xcv] id.
[xcvi] Lim, 271 (Footnote 141), citing Laurel Report:
[xcvii] Solidum, 129-131.
[xcviii] Alma Ocampo-Salvador, "Philippine-European Relations: Beyond 100 Years," in Pablo-Baviera, 455-538.
[xcix] Ocampo-Salvador, 493-494.
