Entering the legal profession

May I share with the readers visiting this blog a 2007 speech/lecture of former Philippine Chief Justice Artemio Panganiban, the first law alumnus of my alma mater, Far Eastern University in Manila, who had been appointed as Chief Justice, on the subject of "entering the Philippine legal profession". CJ Panganiban was the most prolific justice in terms of book writing while in service.

Entering the legal profession

(Address delivered as guest of honor and speaker at the 116th Foundation Day celebration of the Philippine Bar Association, at the Hotel Intercontinental on April 26, 2007.) By Chief Justice ARTEMIO V. PANGANIBAN (ret.) I AM deeply honored to have been invited as your guest of honor and speaker. Although I have already retired from the judiciary and am now a private citizen, the Philippine Bar Association (PBA) has deemed me still worthy to address this important milestone: The 116th foundation day celebration of the oldest and largest voluntary aggrupation of lawyers in our country. Born on April 8, 1891 as the Colegio de Abogados de Filipinas, the PBA has a pedigreed tradition dating back to the gloried days of Apolinario Mabini, Felipe Calderon, Cayetano Arellano and Jose Abad Santos, to name a few of its illustrious heroes and leaders. And as if that honor is not enough, your esteemed former president, Ricardo J. Romulo – who heads one of the most prominent law firms in the nation – has chosen heart-uplifting, though undeserved, words to introduce me to the audience. Thank you compañeros for your tributes to this retired, though hopefully not retarded, jurist. The 2006 bar exam Yesterday (April 25, 2007), at the Philippine International Convention Center, 1,893 law graduates who passed the 2006 bar examinations were sworn in as new members of the noblest profession in the world. The Supreme Court ended its summer session in Baguio and the justices motored to Manila to attend the solemn rites. Inasmuch as the actual examination was conducted in September last year during my incumbency as Chief Justice, I was invited to the ceremony. The mood at the PICC was jovial, even electric. I could feel the ecstasy and the sense of fulfillment that pervaded the huge plenary hall. As we already know, a graduate of the University of the Cordilleras, formerly the Baguio Colleges Foundation, (Noel Neil Q. Malimba) topped the test. For the nonce, the traditional rivals, Ateneo de Manila (represented by Ricardo M. Pilares Jr.) and the University of the Philippines (Deborah S. Acosta) had to set aside their "mirror" competition, stop asking who is the "fairest of them all" and content themselves with a tie for the second place. Additionally, Ateneo grabbed the third (Erika Ana Andrea C. Jimenez) and fourth (Maria Charizza B. Carlos) places; and UP, the ninth (Timothy Joseph M. Mendoza) and tenth (Alain Charles J. Veloso) spots. Does that make them even ("patas lang") at three plums each in the top ten? Far Eastern University (Gina Lyn R. Rubio) took the fifth; the Dr. Orestes V. Romualdez Educational Foundation of Leyte (Anjuli Larla A. Tan), the sixth; the University of San Carlos (Karen H. Gaviola), the seventh; and the University of Cebu (Al-shwaid L. Ismael), the eighth place. The 2006 bar will be remembered for many things, among them the following trivia: This batch, numbering 6,187, is the largest ever to take the examination but the 1,893 passers (30.60 percent) do not constitute the largest group of successful candidates. In 1954, 2,410 passed out of the 3,226 who took the test, catapulting that year to the highest passing percentage at 75.17 percent. During the last 37 years, from 1969 to 2006, the first place had always been a monopoly of Ateneo de Manila and UP, interrupted only in 2006 by the University of the Cordilleras (Malimba); in 2002 by the University of Santo Tomas (Arlene B. Maneja); in 1998, also by the University of the Cordilleras (Janet B. Abuel); in 1975, by the University of the East (Nicanor B. Padilla Jr.); and in 1970, by the FEU (Romulo D. San Juan). The year 2006 marks the first time that four nonMetro Manila schools copped four of the top ten places: University of the Cordilleras, University of San Carlos, Romualdez Educational Foundation, and University of Cebu. Even though 2006 signals the first time that graduates of the University of Cebu took the test, yet one of them placed among the top ten. UC President Augusto Go was so enthused by the performance of his students that he gifted 8th Placer Ismael with a brand new car. Some people say that too much importance is being given the bar placers. They aver that there are many law graduates who did not make it to the top ten but who nevertheless succeeded even more than the placers. Their favorite example is the late Senator Claro M. Recto, who failed in his first bar attempt but became a highly-admired practitioner and lawmaker. True, the bar examination is not the only measure of a lawyer’s worth, but it cannot be denied that bar placers, especially those who were also deans’ listers, get a big headstart because they are sought after by the big law firms, business conglomerates and important government institutions including the Supreme Court. The bar exam illustrados It is equally true that many bar illustrados have demonstrated enviable track records in the profession and in the government. Consider these statistics: Four incumbent SC justices are bar placers: Antonio T. Carpio (6th place, 1975), Adolfo S. Azcuna (4th, 1962), Presbitero J. Velasco Jr. (6th, 1971) and Antonio B. Nachura (7th, 1967), along with two SC officials, Assistant Court Administrator Antonio H. Dujua (8th, 1969) and Corazon G. Ferrer-Flores (10th, 1986). Of the 21 past chief justices, nine were topnotchers: Jose Yulo (3rd, 1915), Cesar Bengzon (2nd, 1919), Roberto Concepcion (1st, 1924), Querube C. Makalintal (7th, 1933), Ramon C. Aquino (6th, 1939), Claudio Teehankee (1st, 1940), Pedro L. Yap (1st, 1946), Andres R. Narvasa (2nd, 1951) and Artemio V. Panganiban (6th, 1960). Notably, the first three lady SC justices rated number one: Cecilia Muñoz-Palma (1937), Ameurfina A. Melencio-Herrera (1947) and Carolina Griño-Aquino (1950). Retired SC members who figured in the top ten were: Mariano H. de Joya (1st, 1907), Antonio Villareal (1st, 1909), Jose Hontiveros (1911), Jose P. Laurel (2nd, 1915), Alejo Labrador (1st, 1918), J.B.L. Reyes (6th, 1922), Conrado Sanchez (3rd, 1923), Julio Villamor (6th, 1926), Calixto Zaldivar (3rd, 1928), Estanislao Fernandez (4th, 1933), Pacifico P. de Castro and Ramon C. Fernandez (tied for 2nd place, 1939), Lino M. Patajo (7th, 1939), Guillermo Santos (5th, 1944), Buenaventura de la Fuente (5th, 1947), Irene R. Cortez (9th, 1948), Jose C. Campos Jr. (5th, 1949), Isagani A. Cruz (8th, 1951), Florentino P. Feliciano (6th, 1952), and Florenz D. Regalado (1st, 1954), who obtained the highest grade in bar history at 96.7%. Other notable placers (former Presidents, Vice Presidents, Senate Presidents and Speakers) were Manuel Roxas (1st, 1913), Carlos P. Garcia (6th, 1923), Arturo M. Tolentino (2nd, 1934), Diosdado Macapagal (1st, 1936), Emmanuel Pelaez (1st, 1938), Ferdinand E. Marcos (1st, 1939), Jovito R. Salonga (tied 1st with Jose W. Diokno, 1944), Neptali A. Gonzales (9th, 1949), Ernesto M. Maceda (10th, 1956), and Franklin M. Drilon (3rd, 1969). Not to be forgotten in this forum are PBA bar placers who have distinguished themselves in private practice, like President Victor P. Lazatin (3rd, 1971), Antonio H. Abad Jr. (10th, 1963); Giorgidi B. Aggabao (10th, 1980); Eduardo J. Berenguer (4th, 1964); Purisimo S. Buyco (4th, 1980); William M. Chato (5th, 1966); Avelino V. Cruz (1st, 1961); Avelino J. Cruz Jr. (7th, 1977); Fulgencio S. Factoran Jr. (9th, 1967); Francis Jardeleza (3rd, 1974); Manuel A. Laserna Jr. (3rd, 1984); Arthur A. Lim (3rd, 1981); Simeon V. Marcelo (5th, 1979); Barbara Ann C. Migallos (3rd, 1979); Rafael L. Morales (4th, 1974); Jovito R. Salonga (1st, 1944); Bienvenido A. Tan Jr. (8th, 1948); Gabriel L. Villareal (9th, 1979); Cesar L. Villanueva (2nd, 1981); and Liberador B. Villegas (3rd, tied with Victor P. Lazatin, 1971). Other interesting tidbits about the bar exams can be accessed from my personal website, cjpanganiban.ph, by clicking "Columns." This speech will also be posted in my website so those interested in detailed figures can access them. Some sobering questions Beyond the excitement generated by the bar examinations are some sobering questions: Is the bar examination a true measure of a law graduate’s performance? How did the country’s law schools fare in the tests over the years? How are the examinations and the law schools being reformed to make them more responsive and relevant to the nation during the 21st century? Let me hazard a few answers. To be sure, the various countries of the world do not have a uniform regard for the bar examinations. For instance, in Japan and Korea, the exams are so restrictive that less than 5 percent pass every year. On the other hand, in Spain, there are no government examinations for lawyers. Graduates from any of the approved law schools are deemed ready to practise law. In the United States, each state of the Union issues licenses to practise within its courts only to those who take and pass that state’s bar exam. The examination is not really that difficult and is almost perfunctory for most examinees, who invariably pass. In our country, however, the bar examination has always been a national event. And passing the bar has always been a source of pride not only for the candidates but also for their extended families and friends. Being an attorney-at-law opens a whole new world of opportunities, not only in the practice of the profession but also in politics, business, academe, government service and a myriad of activities not easily accessible to other professions. Twenty five years ago, when there were not too many lawyers in the country, the bar examination was not as difficult as in the present time. Moreover, prior to 1982, the passing grade has always been "reconsidered" to include averages below 75 percent, to as low as 69 percent in 1947, 69.45 percent in 1946 and 70 percent in 1948, 1963, 1972 and 1974. After 1982, up to the present, the passing average has however been maintained at 75 percent without any reconsideration. Also, prior to 1982, the percentage of passing was quite high, averaging between 40 and 50 percent. After 1982, those who passed constituted only about 25 percent of the total who took the exam. There were only a few years when more than 30 percent were successful. Performance of the law schools Let me now give you a short profile of how the law schools fared during the bar tests. In the exams held from 1946 to 2006, the University of the Philippines (UP) produced 25 numero unos; Ateneo de Manila (AdM), 17; San Beda, six; Far Eastern University (FEU), four; University of Manila (UM) and University of the Cordilleras (UCor), two each; University of Santo Tomas (UST), University of the East (UE), MLQ University (MLQU), University of Bohol and the Philippine Law School (PLS), one each. Based on the data published in the Supreme Court (SC) website, I also computed the number of top ten placers of the leading schools during the same period. Again, UP topped with 205 placers; followed by AdM, 186; San Beda, 75; FEU, 42; MLQU, 31; UST, 23; UE, 17; University of San Carlos (USC), 15; Lyceum of the Philippines (LP), nine; University of San Agustin (USA), eight; Ateneo de Davao (AdD), Silliman University (SU) and University of Negros Occidental–Recoletos, seven each; PLS, six; and UCor, five. In a recent but shorter period, 1991-2006, UP produced eight number ones; AdM, five; UCor, two, and UST, one. For the same period, AdM had 61 top ten placers; followed by UP, 55; SBC, 24; AdD, five; UST and USC, four each; FEU & UCor, three each; and MLQU, two. Based on data culled from the Office of the Bar Confidant, I computed the average passing percentages of the top ten schools for the period 1991-2005 (those for 2006 are still unavailable). AdM topped with 87.57 percent; San Beda, 80.38; UP, 76.4; AdD, 55.35; UST, 49.59; USC, 45.72; Arellano University, 39.75; Xavier University, 33.24; St. Louis University, 30.19; and LP, 27.92. The national passing percentage for the same period is 25.09. In 1991, there were only 59 law schools, while in 2005, 95. The law colleges that did not participate in 1991 were thus not included in this computation. Nonetheless, it is obvious that too many schools rated below the national passing average for the period. To determine how new schools have performed, and perhaps to see how law deans have succeeded in responding to the challenge of surpassing the national passing average, I have also computed the law school’s passing averages for shorter periods of time. For the ten-year period from 1996 to 2005, the national passing average according to the Office of the Bar Confidant is 25.85 percent. The following schools performed past that figure: AdM, 89.19 percent; San Beda, 85.27; UP, 85.19; AdD, 65.57; UST, 56.70; USC, 54.45; ArU, 46.18; Pamantasan ng Lungsod ng Maynila (PLM), 41.26; XU, 37.45; LP, 32.40; SLU, 31.38; and FEU, 26.25. For the five-year span, 2001 to 2005, the national passing percentage is 26.42. The following exceeded the national figure: AdM, 90.03; San Beda, 83.92; UP, 80.69; AdD, 67.66; USC, 66.21; UST, 60.90; ArU, 49.81; University of Perpetual Help-Rizal (UPH-R), 43.64; PLM, 40.92; XU, 40.546; LP, 39.86; University of Batangas (UBat), 34.97; University of St. La Salle (USLS), 33.03; FEU, 31.71; USA, 30.58; SU, 29.23; SLU, 29.15; Andres Bonifacio College (ABC), 28.20 and Urios College, 27.54. For the three separate periods of 15, 10 and 5 years, AdM, San Beda and UP made a consistent 1-2-3 posting. New law schools like PLM, UPH-R, UBat, USLS, ABC and Urios made significant inroads in beating the national passing percentages for those times. Reforms in the bar tests Over the years, the SC has tried to upgrade, even reinvent, the bar examinations. Extensive reforms were suggested a few years ago by Justice Vicente V. Mendoza, now retired, in a paper entitled "Toward Meaningful Reform in the Bar Examinations." Various law associations, as well as study groups headed by retired Justices Ameurfina A. Melencio-Herrera and Jose C. Vitug also submitted many proposals. In response, the SC issued a comprehensive resolution (Bar Matter 1161) dated June 8, 2004, approving, inter alia, the following: Those who have failed five or more times shall be allowed to take only one more exam but only after finishing a one year "refresher course." The disqualifications of the bar committee chair and examiners were made more explicit; the non-disclosure of kinship between the chairman and an examinee during the 1999 test provoked this reform To prevent a repetition of a problem in 2002 when an examiner’s computer was hacked, resulting in the invalidation of the test in Mercantile Law, examiners were barred from using computers in preparing their questions. Candidates who obtain a grade below 50 percent in any subject were disqualified. Multiple choice questions have been adopted The cut-off date for the inclusion in the tests of laws and SC decisions was set at June 30 of the previous year For implementation are the appointment of tenured, in lieu of ad hoc, examiners; the introduction of "performance testing;" the organization of "readership panels;" the adoption of the "calibration method" of correcting test papers; and the computerization of the exams. Abangan. Reforms in legal education The Supreme Court did not act on four proposals to improve legal education: 1) the accreditation and supervision of law schools; 2) the inclusion of clinical education (apprenticeship) in the law curriculum; 3) the imposition of sanctions on sub-standard law schools, and 4) the taking of a national admission test by those entering a law school. Even though the Constitution empowers it to regulate "admission to the practice of law," the Supreme Court however has no authority to supervise law schools directly. Hence, these four items were referred to the Legal Education Board (LEB). Created by Republic Act 7662 on December 23, 1993, the LEB is the agency authorized to "uplift the standards of legal education in order to prepare law students for advocacy, counseling, problem-solving and decision-making." The Board is to be headed by a chairman "who shall preferably be a former justice of the Supreme Court or the Court of Appeals." The five regular LEB members shall be representatives of the (1) Integrated Bar of the Philippines, (2) the Philippine Association of Law Schools, and (3) the Philippine Association of Law Professors, as well as representatives of (4) "the ranks of the active law practitioners," and (5) the "law students sector." The secretary of justice shall sit as an ex-officio member. Sadly, although created 14 years ago, the LEB has not been operationalized; neither has its chair and members been appointed nor its budget allocated. Until these are done by the President of the Philippines, reforms in legal education will remain in limbo. Ethics and competence As a final note, may I say that more than knowledge of the law and competence in its practice, legal ethics should be emphasized both in basic legal education and in the bar exams. Right now, ethics is given only a five percent share in the tests. More than merely increasing its percentage share, ethics should permeate and be asked in all bar subjects. To close this address, I would like to paraphrase an oft-quoted Supreme Court decision: The doors to our legal profession must swing on reluctant hinges. Those who want to pass those doors must make a solemn commitment to adhere to an ethical compass. Quality justice always begins with a high standard of ethics. Nothing is more demeaning to the legal profession than scheming attorneys who obsessively use every trick and technicality to delay or obstruct what is fairly due the opposite parties. During my term as Chief Justice, I have advocated as a cornerstone of my Vision-Mission Statement, the revitalization of the legal profession by "breeding competent and ethical lawyers." Yes, competent and ethical attorneys, code-named EC (as in easy); that is the legacy I would like to leave our profession, and the legacy as well that I respectfully ask the Philippine Bar Association to espouse and carry on, as it celebrates its 116th foundation. Maraming salamat po.

Bar Exams

Some 5,799 bar examinees (2007) and their parents are nervously awaiting the official release of the 2007 Bar Exams results this weekend. To be a Filipino lawyer, a bar examinee must receive a general average of 75% in all subjects without falling below 50% in any subject. The weights of the Bar Exam subjects are: Political and International Law, 15%; Labor and Social Legislation, 10%; Civil Law, 15%; Taxation, 10%; Mercantile Law, 15%; Criminal Law, 10%; Remedial Law, 20%; and Legal Ethics and Practical Exercises, 5%, for a total of 100%. According to the Supreme Court, the passing average from 2000 to 2006 was 26.22 percent, with 2002 as the toughest (19.68%): Year Total Number of Examinees Total Number of Those Who Passed Percentage 2006 6,187 1,893 30.60% 2005 5,607 1,526 27.22% 2004 5,249 1,659 31.61% 2003 5,349 1,108 20.71% 2002 4,659 917 19.68% 2001 3,849 1,266 32.89% 2000 4,698 979 20.84%

The Spratlys

May I reproduce below the full text of my 8-year old international law study on the Spratlys controversy from the viewpoint of legal basis of the claim of Vietnam, one of the many claimants to the islands.

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 SOCIALIST REPUBLIC OF VIETNAM

MANUEL J. LASERNA JR.

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 Philippines.^[iii]

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) Islands. Saigon: Ministry of Foreign Affairs, Republic of Vietnam, 1975.^[vi]

2. Vietnam's Sovereignty Over the Hoang Sa and Truong Sa Archipelagoes. Hanoi: Information and Press Department, Ministry of Foreign Affairs, Socialist Republic of Vietnam, 1979.^[vii]

3. The Hoang Sa and Truong Sa Archipelagoes: Vietnamese Territories. Hanoi: Ministry of Foreign Affairs, Socialist Republic of Vietnam, 1981.^[viii]

4. Dossier: The Hoang Sa and Truong Sa Archipelagoes (Paracels and Spratly), Part I and Part II. Hanoi: Vietnam Courier, 1981.^[ix]

5. Situation of the Paracels and Spratly at the End of 1993. An unpublished listing of islands in the Paracels and the Spratlys. Manila: Embassy of the Socialist Republic of Vietnam, 1999.^[x] A copy of this listing is attached as Annex "A" hereof.

GEOGRAPHY: PARACELS AND SPRATLYS

The Paracels and the Spratlys are located in the South China Sea.^[xi]

The Vietnamese call the Spratlys Truong Sa. They call the Paracels Huong Sa.^[xii] China calls the Spratlys Nansha and the Paracels Xisha.^[xiii] The Philippines calls the Spratlys the Kalayaan Group of Islands (or Freedomland).^[xiv]

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 Vietnam).^[xviii]

In relation to the other major claimants, the distances of the Spratlys are as follows:^[xix]

* To Hainan Island (China) 580 miles^[xx]

* To Palawan (Philippines) 310 miles^[xxi]

* To Taiwan 900 miles^[xxii]

The Spratlys contains nine (9) islands of relatively significant size:^[xxiii]

1. Truong Sa or Spratly Island proper

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 Indian Ocean.^[xxiv]All its islands are coral, low and small, about 5 to 6 meters above water, spread over 160,000 to 180,000 square kilometers of sea zone (or 12 times that of the Paracels), with a total land area of 10 square kilometers only.^[xxv]

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 ISLANDS UNDER THEIR CONTROL

Vietnam claims the whole of the Paracels and the Spratlys as part of its national territory.

In the Spratlys, Vietnam controls 21 islands, reefs, shoals, and cays:^[xxx]

1. Da Lat (Ladd Reef)

2. Dao Truong Sa (Spratly Island)

3. Da Tay (West London Reef)

4. Da Giua (Central London Reef)

5. Da Dong (East London Reef)

6. Dao An Bang (Amboyan Reef)

7. Thuyen Chai (Barque Canada Reef)

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 (Sin Cowe Island)

16. Da Gri-san

17. Dao Nam Yet (Namyit Island)

18. Dao Son Ca (Sand Cay)

19. Da Nui Thi (Petley Reef)

20. Dao Song Tu Tay (South West Cay)

21. Da Nam (South Reef)

The Philippines control the following islands in the Spratlys:^[xxxi] See also Dossier, 12: The four main islands are Song Tu dong, Thi Tu, Loai Ta, Dao Cong Do.

1. Dao Song Tu Dong (Parola or North East Cay)

2. Dao Dua (Ben Lac) (Likas or West York Island)

3. Dao Thi Tu (Pag-asa or Thitu Island)

4. Dao Binh Nguyen (Patag or Flat Island)

5. Dao Vinh Vien (Lawak or Nansham Island)

6. Dao Cong Do (Rizal or Commodore Reef)^[xxxii]

7. Con San Ho Lan Can (Panata or Lamkian Cay)

8. Dao Loai Ta (Kota or Loaita Island)

China controls the following islands in the Spratlys:^[xxxiii]

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]

Malaysia controls the following islands in the Spratlys:^[xxxv]

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)

Taiwan controls Dao Ba Binh island (Itu Aba Island or Taiping Dao Island).^[xxxvi]

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 Vietnam was "The Kingdom of Annam."^[xxxviii]

French Indochina consisted of Vietnam, Laos and Cambodia. In 1884 a convention between France and China ended China's nominal suzerainty over Vietnam. From 1868 to 1884 France colonized Cochinchina and controlled Trung Ky (Annam) and Bac Ky (Tonkin) as protectorates. (Dossier I, 22).

Other ancient maps relied on by Vietnam are the following:^[xxxix]

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 Nam province.

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 Nam Nhat Thong Toan Do", a Vietnamese Atlas, 1838.

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 France colonized the southern part of Vietnam, called Cochinchina.^[xl]

(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]France took "official possession of the islands." Three French ships, the Alerte, Astrabale, and De Lanessa, visited the Spratlys and officially declared the following islands as French territory^[xlii]:

1. Spratly Island

2. Amboine Caye

3. Bombay Castle Shallows

4. Fiery Cross (or Investigation)

5. Cape Pedaran

6. London Reefs

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 France to interested countries on July 24 to September 25, 1933. Except for Japan, "no state xxx raised any protest."^[xliv] Three powers "remained silent xxx: the United States (occupying the Philippines), China, and the Netherlands (then occupying Indonesia) xxx."^[xlv]

Japan protested the notice of occupation made by France on the ground that in the past Japanese companies had exploited phosphate on some of the islands. Vietnam claims that such exploitation was made without permission from France and that Japan had not attempted to take possession of the Spratlys in the concept of an owner.^[xlvi]

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 France conducted a "geographic and geological study" of the Spratlys.^[xlviii]

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 Japan took control of said weather station.^[l]

In 1939 the Japanese military government announced its decision to take possession of the Spratlys.^[li]France protested on April 4, 1939 when Japan announced it had placed the Spratlys "under its jurisdiction." ^[lii] In 1941 Japan forcibly took over the islands as part of its World War II strategy.

During the last War, France defended the Spratlys from Japanese military forces.^[liii]

In the 1951 "San Francisco Peace Treaty" Japan relinquished all titles and claims to the Paracel Islands and the Spratlys Islands.^[liv]

After the Japanese defeat in 1945, France "returned Cochinchina to Vietnam xxx. Thereafter, Vietnamese sovereignty over the Truong Sa Islands faced claims from other countries in the area (whose) military occupied some of the islands of the archipelago."^[lv]

Vietnam claims that in 1939 the British Ministry of Foreign Affairs had declared "that France exercised full sovereignty over the Spratly Archipelago."^[lvi]

In 1949 Vietnam "inherited" from France all former French rights over the Paracel Islands and the Spratlys Islands.^[lvii]

Vietnam emphasizes "actual exercise of sovereignty over mere geographic contiguity" as a basic ground for its claim.^[lviii]

Rebutting the claim of the Philippines, Vietnam states in its official White Paper, thus:^[lix]

x x x.

Since the United States did not act (in 1933) where a Philippine claim could have been made, this indicates that there was no ground for a challenge of French rights on behalf of the Philippines. It was only 35 years later (1968) after the French took possession of the Spratly Islands that Philippine troops, taking advantage of the war situation in the Republic of Vietnam, surreptitiously occupied some islands in the Vietnamese archipelago (Loai Ta, Thi Tu, and Song Tu Dong). x x x.

Vietnam claims that the following four World War II basic documents on territorial settlements do not contain any clause contrary to the sovereignty of Vietnam over the Paracel Islands and the Spratly Islands, to wit:^[lx]

1. 1951 San Francisco Peace Treaty^[lxi]

2. 1943 Cairo Declaration^[lxii]

3. 1945 Yalta Agreement

4. 1945 Potsdam Declaration

Vietnam also claims that the Peace Treaty between the Republic of China (Taiwan) and Japan on April 28, 1952 merely repeated the 1951 San Francisco Peace Treaty and that it did not mention any country in favor of which Japan renounced its claim during World War II.

Vietnam brands as erroneous the Philippine theory that the Spratly Islands were "res nullius" when Tomas Cloma "pretended to 'discover' the Vietnamese Truong Sa islands in 1956".^[lxiii] Cloma named the islands "Freedomland" or "Kalayaan". The said islands cover most of the Spratlys.^[lxiv]

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 France completed its troops withdrawal from Indochina.^[lxvi]

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.

Vietnam assails China for its repeated refusal to accede to France's suggestion to resolve the Paracel and Spratly issues thru the international court.^[lxviii] On August 24, 1951 China attacked French and Philippine claims on the Spratlys which China considered as "outposts of Chinese territories."^[lxix]The same daily on Feb. 4, 1974 contained a statement on Chinese "threats of force."

On June 8, 1956 Taiwan^[lxx]sent troops to occupy Thai Binh Island (Itu Aba). It is the largest island in the Spratlys.^[lxxi]Vietnam claims that "as late as December 1973, the Far Eastern Economic Review of Hongkong reported that a marker still stood there with the inscription: 'France - Ile Itu Aba et Dependences - 10 Aout 1933."^[lxxii]

Vietnam claims that since 1956 it has publicly reiterated thru public announcements and press statements worldwide its sovereignty over the Spratlys.^[lxxiii] It argues that during the negotiation for the 1951 San Francisco Peace Conference, its Foreign Minister Vu Van Mau of the Republic of Vietnam reaffirmed Vietnam's rights over the Spratlys which China and the Philippines did not challenge.^[lxxiv]

It claims that on June 28, 1974 during the conference on the United Nations Law of the Sea (UNCLOS) in Caracas it reaffirmed its sovereignty over the Paracels and the Spratlys.^[lxxv]

It reminds the Philippines that on July 13, 1971 during the Asia Pacific (ASPAC) Conference in Manila, the Republic of Vietnam, thru its Foreign Minister Tran Van Lam, "reaffirmed Vietnamese sovereignty" over the Paracels and the Spratlys.^[lxxvi]

Vietnam believes that the Spratlys issue "must be settled in accordance with international law and the Charter of the United Nations."^[lxxvii] See also VS, 55: On Dec. 30, 1978 the Vietnamese Ministry of Foreign Affairs issued a statement a) reasserting Vietnamese sovereignty on the Spratlys versus China; and 2) reaffirming "the settlement of all disputes...thru peaceful means." This was reiterated in another statement issued on Aug. 8, 1979 addressed to China.

The most aggressive claimant in the region is China.^[lxxviii]In 1909 it seized some islands in Xisha (the Paracels). In 1946 it seized Itu Aba (in the Spratlys) and Phu Lan Island (in the Paracels). In 1950's it seized additional Hoang Sa (Paracels) islands, which it forcibly repeated in 1974. Vietnam claims that these acts were unlawful^[lxxix]and that the United States in 1974 conspired with China for the take-over of the Paracels.^[lxxx]

Assailing China for its allegedly ulterior goal of converting the whole of the South China Sea into a huge "communist Chinese lake", Vietnam stated in its White Paper, thus:^[lxxxi]

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 Vietnam was "ready to settle the difference of opinion with the Philippines in a peaceful way and in a conciliatory spirit." (see Dossier II, 43).claims title to the Kalayaan Group of Islands^[lxxxiii].

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 Freedom Land. Cloma ceded his rights to the Philippine Government, which created a municipality out of it as part of Palawan province. Kalayaan is located 400 kilometers west of Palawan and is made up of 53 islands, reefs cays, and shoals.^[lxxxv]

The Philippines bases its claim to the Spratlys on the legal principles of "discovery" and "occupation" (exercise of sovereignty and jurisdiction).^[lxxxvi] It claims that the Kalayaan was res nullius when "discovered" by Cloma.

The first ever attempt of the Philippines to claim ownership of the Spratly Islands was in 1947 when, shortly after independence in 1946, it demanded that the "New Southern Islands" which were occupied by Japan during the Second World War be given to the Philippines.^[lxxxvii]

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 Taipei demanding that the Chinese garrison on Itu Aba, the largest island in the group, be immediately withdrawn. The Note argued that the garrison constituted a threat to the security of the Philippines, which had a legal claim to the island through discovery and occupation, and which island group was within the archipelagic territory of the Philippines. It further argued that the garrison was not called for, because Chinese occupation (of) some of the islands represented only de facto trusteeship of said islands on behalf of the World War II allies.

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 have settled there, even with a local government established in one of the islands. The Philippine has possession of seven islands. These have been integrated as a municipality of the province of Palawan. Another Presidential Decree was issued on the same date as PD 1596, PD 1599, proclaiming a 200-mile exclusive economic zone for the Philippines x x x.

The present claimants to the Spratlys are the following countries: the People's Republic of China, Republic of China (Taiwan), both claiming historic rights since the Yuan Dynasty before the 1400s; Malaysia which in 1980 claimed that is continental shelf extends as far as the Spratlys and even part of the Palawan islands; Brunei; and the Philippines whose claim to sovereignty appears on Tomas Cloma's occupation proclamation in 1956. The Philippine has claimed that the Spratlys are a case of territorium nullius, a territory over which there is no effective sovereignty and is thus open to occupation and ownership.

xxx (A)lthough the Philippines is the latest of all active claimants, it may be the first to make an assertion of title and to take actions to support its claims for ownership and sovereignty.

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 Philippines in relation to its claim to the Spratlys, thus:^[lxxxix]

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 Philippines should show that it has legal and valid title and it exercises effective acts of sovereignty recognized by international law.^[xciii]

(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

CHINA, ASEAN, AND EUROPE ON THE SPRATLYS ISSUE

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 Philippines and China during the Ramos administration centered on rival claims on the Spratlys islands west of Palawan. Purported Chinese fishermen kept coming to the islets, as installations have been already built on some of the Kalayaan island group claimed by the Philippines. This occurred even after an agreement was signed during President Ramos' state visit to the P.R.C.

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.

China, Taiwan and Vietnam claim all the islands in the Spratlys. The Philippines essentially claims only the western section of the Spratlys, or the Kalayaan Island Group, an assortment of about 51 islands, islets, reef,

shoals, cays, and rocks, depending whether it is high or low tide, the group is nearest to Palawan but which also contains most of the larger islands in the archipelago. Malaysia claims only three islands it presently occupies, as well as Amboyna Cay which is held by Vietnam. Brunei has staked its claim to Louisa Reef, one of the Southern Shoals of the Spratlys which is underwater. Vietnam occupies 25 islands with its main base on Spratly Island (Truong Sa). The Philippine holds eight islands with its base on Thi'tu Island (Pag-Asa). China holds eight islands. Malaysia has three and has opened Shallow Reef (Torumbu Layang-Layang). Taiwan holds Itu Aba, the largest of the islands. x x x The issue of ownership was raised with the P.R.C. when Senator Salvador Laurel visited China in March 1972.^[xcvi] x x x.

Indonesia, a non-claimant state, believes that it is possible to bring the claimant states together to resolve their conflicts peacefully and renounce the use of force to settle their claims. Indonesia has hosted several conferences to discuss the problems and find peaceful solutions. ASEAN also adopted the Manila Declaration of 1992 by which the claimants agreed to settle conflicts peacefully.^[xcvii]

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 Philippines has been engaged in political dialogue with the European Union most actively under the Ramos government. The structures available for political dialogue include the ASEAN-E.U. Ministerial Meetings where regional issues such as the Spratly islands conflict have been addressed, at one time resulting in the issuance by the E.U. of a declaration in support of a peaceful resolution of the problem. Regional issues are also discussed within the framework of the ASEAN Regional Forum where the E.U. ministers participate in the discussion of security issues along with other ASEAN dialogue partners such as

the United States, Russia and China. x x x. ^[xcix]

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 United States. This is a correct approach which coincides with Asian values.

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.

Vietnam, like the Philippines, is ready to settle the issue peacefully in accordance with international law and the Charter of the United Nations. Other claimants assume the same attitude. What is needed, though, is a series of confidence-building measures among them to inspire them to negotiate and resolve the issue amicably, with one goal in mind: regional stability, peace and prosperity.

(End)

---

Endnotes:

^[i] Henceforth, the term "Vietnam" (as a state) will be used by the author. The Socialist Republic of Vietnam replaced the Saigon-based and pro-American Republic of Vietnam after the victory of North Vietnam (Viet Cong forces) under Ho Chi Minh when the American troops pulled out from Vietnam in 1975.

^[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 Vietnam.

^[iii] The legal position of the People's Republic of China and Taiwan (formerly Republic of China) will be discussed in passing.

^[iv] The Vietnamese homepage for history, culture and information are: a) Vietnam Latest News: (http://www.vnnews.com); b) History and Culture of Vietnam: (http://www.vnnews.com/coci); and c) More Information: (http://www.mofa.gov.vn/).

^[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 554 Vito Cruz St., Malate, Manila. Tels. 5252837, 5240364; Fax 5260472.

^[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 "South China Sea" is a Western term. The Vietnamese called it "Eastern Sea" or "Bien Dong."

^[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 Islands as part of the Philippine Territory. It contains a technical description thereof.

P.D. No. 1599 fixed the 200-mile exclusive economic zone of the Philippines. It made the Kalayaan Group of Islands as a reference point.

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, Vietnam locates the Spratlys as between 111 deg. 30 min. and 117 deg. 20 min. longitude, East of Greenwich, 6 deg. 50 min. and 12 deg. latitude North.

^[xvi] In Dossier I, 12, Vietnam uses "kilometers", not miles.

^[xvii] In Dossier, 12, Vietnam uses "kilometers", not miles.

^[xviii] VS, 7; White Paper, 69.

^[xix] White Paper, 69.

^[xx] In Dossier I, 12, Vietnam measures the distance between the Spratlys and Hainan Island (China) as 1,150 kilometers.

^[xxi] In Coquia, 342, the distance is stated as 400 kilometers.

^[xxii] In Dossier, 12, Vietnam measures the distance between the Spratlys and Taiwan as 1,780 kilometers.

^[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] Vietnam protested the Philippine occupation of Commodore Reef in Note No. 96/AC 3, Aug. 11, 1980. On July 27, 1980 Philippine troops occupied Commodore Reef and Vietnam demanded the withdrawal thereof. (see Dossier II, 47).

^[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 Philippines calls Mischief Reef as "Panganiban Reef." It is part of the Kalayaan Group of islands claimed

by the Philippines. It is located 187 kilometers from Puerto Princesa, Palawan. The Philippines is now trying to "internationalize" the Spratlys issue in protesting the presence of Chinese naval ships and the on-going construction of Chinese structures in Mischief Reef which the Philippines claims

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. Itu Aba Island, possession taken on April 10, 1933; "114 deg. 21 min. east of Greenwich";

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, Saigon "annexed the Truong Sa Archipelago to Phuong Hai village, Dat Dao, Phuoc Tuy province." See also HS, 16.

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, Saigon, 1934.

^[xlix] With International Code No. 48919 and listed under "French Indochina-Cochinchina." Id., 78.

^[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 Las Palmas Islands off the Philippine Coast, where Netherlands won. See: Reports of the International Arbitral Awards, United Nations, p. 829, re: the 1928 Las Palmas case.

^[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: Vietnam claims that the Declaration referred only to Manchuria, Formosa and Pescadores.

^[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, China was represented by the Republic of China (Taiwan). Id., 86.

^[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 Vietnam protested the statement of Pres. Ferdinand Marcos on the Philippine claim over the Spratlys. Vietnam protested on April 20, 1971 Malaysia's claim over some islands in the Spratlys.

^[lxxvii] White Paper, 76.

^[lxxviii] China invaded and bombed the following islands in Hoang Sa (Paracels) on Jan. 19-20, 1974: Cam Tuyen (Robert), Quang Hoa (Duncan), Duy Mong (Dresmond), Vinh Lac (Money), Hoang Sa (Pattle). Vietnam called an urgent meeting with all diplomats in Saigon on Jan. 21, 1974 to condemn the invasion of the Paracels by China.

^[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.

^[lxxxii] Issued June 11, 1978 by former Pres. Ferdinand E. Marcos.

^[lxxxiii] "Kalayaan", for short.

^[lxxxiv] Coquia, 342.

^[lxxxv] id.

^[lxxxvi] id. The Philippines has existing military stations in Kalayaan. It is a municipality of Palawan.

^[lxxxvii] Estrella D. Solidum, "Philippine External Relations with Southeast Asia," in Pablo-Baviera, et. al. (eds.), Philippine External Relations: A Centennial Vista (Manila: Foreign Service Institute, Department of Foreign Affairs), 91-200, citing Haydee B. Yorac, "The Philippine Claim to Spratly Island Group," Philippine Law Journal (Quezon City: College of Law, University of the Philippines), Vol. 58, March 1983, 44.

^[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: Mission to China [March 12-22, 1972, 185 pages].

^[xcvii] Solidum, 129-131.

^[xcviii] Alma Ocampo-Salvador, "Philippine-European Relations: Beyond 100 Years," in Pablo-Baviera, 455-538.

^[xcix] Ocampo-Salvador, 493-494.