My Spratlys ABC

TV broadcaster Loren Legarda (now a senator) and I were the first journalists to set foot on one of the islands of the disputed Spratlys in the West Philippine Sea, then considered a “flashpoint” because a number of countries, the Philippines among them, were claiming one, several, or all of the islands. That was in 1991. We flew aboard a Nomad plane of the Philippine Air Force with then PAF chief Loven Abadia and several officers. We landed on Kalayaan, an island with an airstrip, claimed by the Philippines. It seemed so far away at that time.

Since then, the disputes regarding ownership of the 53-island group would flare up again and again, but not as seriously as now, with China (which has long claimed all of the islands) building structures where it pleases. It has even seized the Philippines’ Scarborough or Ayungin Shoal.

I fly back to what I learned then, from research and interviews with an expert on the Law of the Sea and even with representatives of claimant-countries. One interesting interview was with “The Admiral,” Tomas Cloma, a Filipino adventurer who claimed the Spratlys. More on him next week.

The late law professor Haydee Yorac, elections commissioner at that time, was an expert on the Spratlys and the Law of the Sea. She had done much research and written on the subject. She said that it was not a question of who possessed the perfect title but who among the claimants had the better title. In international law, she said, that is how conflicting claims to territory are resolved. She could argue it out legally, she said. As Commission on Elections chair, she pushed for elections in Kalayaan, which became the 21st municipality of Palawan with a mayor of its own.

The Philippines, Yorac said, had always been sensitive to what constituted its island waters and maritime boundaries, the reasons being economic, fiscal, political and security. Because of its archipelagic nature and having islands lying more than 12 nautical miles from each other, the Philippines consistently advances its territory as both land and water formed into a composite and integral unity. The legal bases for this are: recognition by treaty, devolution by treaty rights and historic title.

The 1935 Constitution defined Philippine territory as “all the territory ceded to the United States by the Treaty of Paris and Spain (on Dec. 10, 1898) the limits of which were set forth in Article III of the treaty, together with all the islands embraced in the treaty concluded at Washington, between the United States and Spain on (Nov. 7, 1900) and the treaty concluded between the United States and Great Britain on (Jan. 2, 1930) and all territory over which the present Government of the Philippine Islands exercises jurisdiction.”

In 1955 the Philippines notified the United Nations and other states that all waters within the line described by the Treaty of Paris and the Constitution were Philippine territory subject to the exercise of the right of innocent passage by friendly nations.

In 1961, through Republic Act No. 3046, the Philippines adopted a straight baseline method around its territorial waters with outermost island and drying reefs as baselines while also affirming the provisions in the 1935 Constitution.

The later constitutions do not explicitly mention the treaties on which maritime boundaries were based but, Yorac said, these had been subsumed in the phrase “territories belonging to the Philippines by historic right and legal title” (1973) and “all the islands and waters over which the Philippines has sovereignty and jurisdiction” (1987). With these sweeping definitions, the Philippines can assert ownership over islands in the Spratlys.

In 1956 Filipino adventurer and fishing boat owner Tomas Cloma made a “Proclamation to the Whole World” asserting ownership over the Spratlys. China and Vietnam protested.

Cloma’s claim came after a first attempt by the Philippine government in 1947 to declare ownership over what it then called “New Southern Islands.” With the 1947 claim and Cloma’s consolidated, the Philippine government, through a diplomatic note, asked Taiwan in 1971 to withdraw its troops from Itu Aba, the biggest in the island group. This was after troops there fired at then Sen. Ramon Mitra of Palawan who was visiting the islands. (Itu Aba is still occupied by Taiwan.)

A few years later, the Philippines garrisoned eight islands; in 1978 President Ferdinand Marcos issued Presidential Decree No. 1596 declaring the islands part of Philippine territory and Filipinized the name Freedomland into Kalayaan Island Group. Marcos also declared a 200-mile exclusive economic zone for the Philippines (PD 1599). Kalayaan was included in the new map of the Philippines.

PD 1596 gave reasons for claiming the islands: 1) The area is part of the continental margin of the Philippine archipelago; 2) the islands do not belong to any state, but by reason of history, indispensable need, and effective occupation and control established in accordance with international law, should now be deemed subject to the sovereignty of the Philippines; and 3) claims by other states over the area had lapsed by reason of abandonment and cannot prevail over that of the Philippines on legal, historical and equitable grounds.

Yorac argued that there were no records showing that claims made before the 1900s had been accompanied by positive assertions of effective sovereignty and control for a continuous and substantial length of time. During World War II, Japan used the islands as naval outposts for only six years. With Japan’s surrender and the war over, none of the claimants except Taiwan made a move to assert sovereignty, although Yorac said the effect of those acts was legally debatable.

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