To begin to understand the controversy over the South China Sea, a helpful backgrounder is a book by Rodolfo C. Severino, “Where in the World is the Philippines?” Chapter 5 of the book is about the South China Sea controversy. But if you are looking for a solution to the problem, you probably will not find it there. Nevertheless let us see the beginning of the story in brief.
During World War II Japan had occupied the Spratly Islands. From there Japan had launched its attacks against the countries in the region. If Japan had won the war, Japan would be a major actor in the contest over the South China Sea and would probably be lording it over the rest. But Japan lost.
The Treaty of Peace of 1951 ending the war was signed in San Francisco by 49 nations. By this treaty Japan renounced all claim over the Spratly Islands and the Paracel Islands. The Philippines and Vietnam were parties to the treaty, but neither Mainland China nor Taiwan was.
The Treaty, however, is no help to the settling of the current controversy. The Treaty does not say which country should have a legal claim over the island. A subsequent treaty between Tokyo and Taipei and a still later Treaty of Peace and Friendship between Tokyo and Beijing do not touch on the territorial issue either. Thus the squabbling remains until today.
How did the Philippines get involved? It started with Tomas Cloma, a Filipino educator and entrepreneur, who had planned to open an ice plant and cannery in one of the islands. But Cloma went beyond his interest in an ice plant and a cannery. In 1956 he sent a private training ship on an expedition to the islands. Subsequently he released a “Notice to the Whole World” claiming a vast area of the South China Sea which included the Kalayaan islands. He also sent a letter to the secretary of foreign affairs of the Philippines, Carlos P. Garcia, that with a crew of about 50 persons he was undertaking a survey and occupation of an area outside of Philippine territory and belonging to no one. Shortly thereafter he called the area “Freedomland.”
Cloma stressed that the claim had not been made by the Philippines but was being made by himself as a Filipino citizen. He followed this with what may be called a “constitution” for the area prescribing a form of government and incorporating the Universal Declaration of Human Rights and the Philippine Bill of Rights. By these acts he said that he hoped to deter other nations from claiming the territory.
Although the Philippine government under Ramon Magsaysay was taking all this as a “comic opera,” it was serious enough to provoke protests from Taiwan, Beijing and Vietnam. Beijing even took naval action against the Cloma activities. And when Cloma wrote a letter to the Philippine secretary of foreign affairs reporting Taiwanese activities in the area, the secretary in 1956 expressed the view that the islands were res nullius. He said that the Philippine government considered the islands to be under the de facto trusteeship of the Allied Powers since there had been no territorial settlement by those same Powers.
The winds of change in the Philippines began in 1971 under President Marcos. The government expressed concern about the security implications of what was happening in the area. Taiwanese forces were reported to have occupied some islands.
While maintaining that the area was res nullius and that no state could introduce troops into the area without the consent of the Allied forces, the Philippine government nevertheless maintained that such res nullius could be acquired by “occupation and effective administration.” Marcos in fact announced that the Philippine government was in “occupation and effective administration” of some islands. Naturally protests came from Taipei and Beijing.
Things became more complicated in 1971 when Secretary of Foreign Affairs Carlos P. Romulo recommended more development of the area and the augmentation of the military forces already deployed there. Moreover, the foreign affairs undersecretary had asserted in the Seabed Committee of the UN that the Philippines was in effective occupation of Kalayaan Islands.
Protest, however, came not just from China and Taipei but also from within. A former Philippine diplomat wrote to President Marcos claiming that what the government was doing contradicted a commitment made by Secretary Garcia in 1957 that the Philippines recognized the Free Territory of Freedomland.
This internal conflict, however, seemed to find a solution in a “Deed of Assignment and Waiver” of all rights won by Cloma over the islands through development and effective occupation. But biographers of Cloma claimed that the Deed had been executed under duress and in exchange for the release of the aging Cloma after 57 days in detention in Camp Crame during martial law. Thus, in the freer atmosphere after Edsa I, Tomas Cloma & Associates submitted a claim to President Cory Aquino asking for reimbursement of expenses incurred from 1947 to 1974 in the “exploration, occupation, development, administration, organization and settlement of Freedomland.” What this seems to mean is that Tomas Cloma & Associates have already affirmed that a transfer of rights had indeed been made to the Philippine government.
But what did Tomas Cloma & Associates transfer? China, Taiwan and Vietnam are asserting that Nemo dat quod non habet.
Only the UN can settle this controversy authoritatively; but no one wants to accompany the Philippines to the UN.