Nations with or without a stake in the West Philippine Sea’s (South China Sea’s) Spratly islands, shoals, banks, cays, reefs and rich fishing grounds must be watching the Philippines’ power team argue at The Hague against China’s encroachments in the area.
Watch us fight, watch us claim what is ours, not through brute force and size but through legal and historical arguments.
China is claiming “indisputable sovereignty” over the Spratlys and its waters. It is hurriedly putting up structures on its newly created manmade islands in disputed areas that are claimed wholly (by China) or partly by several Southeast Asian nations plus Taiwan. It is even claiming shoals that are right smack inside Philippine territory.
The Philippines is the David to China’s Goliath. The Philippines is an upstart boldly going to an international court despite China’s refusal to participate and its preference for some sort of bilateral talks where it can stare us down. So to The Hague we have gone by our lonesome while the other Spratlys claimants (Brunei, Malaysia, Vietnam and Taiwan) have chosen to watch quietly. Our victory can be their victory against a bully. I’d like to think that they are not as passive as they seem.
We know we are not alone. While we are not spoiling for a fight, we are not the kind to cower in fear and let go of our claims just like that. We don’t grab territories, but we do not let anyone grab what we believe are ours. Might does not mean right. And we will give the mighty a fight.
In a magazine series on the Spratlys years ago and in a recent column, I quoted extensively the paper “The Philippine Claim to the Spratly Islands Group” written by the late law professor Haydee B. Yorac in the Philippine Law Journal. Yorac’s piece was part of a larger technical work which focused on claims to territory and problems of delimitation of maritime boundaries in international law which had to do with the Philippines’ claim to the Spratlys.
I had already written about the Philippines’ claim as Yorac explained in her paper. What about the claims of the other countries?
According to Yorac, Vietnam also claims historic title to the islands but its claims can only be traced to as far back as 1927, when the French government sent a ship on an expedition. Two more expeditions followed, after which a French flag was planted in the area. The French government incorporated six groups of islets in a Vietnamese province, which provoked protests from China and Japan.
In 1938, the Indo-China Meteorological Service built a weather station on one of the islands. But questions arose: So, were these the only basis for their present claim?
This much I learned when I interviewed Vietnamese embassy personnel years ago: Vietnam does not recognize the right of discovery and first occupancy. It asserts that occupation by private individuals will not entitle their country to sovereignty as only the state can be a title holder. This is perhaps Vietnam’s argument against Tomas “The Admiral” Cloma’s claim on behalf of the Philippines, about which I had also written.
Vietnam reasons that in the 17th century, the Spratlys (and the Paracels as well) were already under its effective and continuous occupation until China invaded the islands. The French colonizers later administered the islands and drove out the Chinese forces after World War II.
Vietnam, which was occupying the most number of islands in the Spratlys (Truong Sa) in the 1990s, had supported its claims by invoking the principle of effectivity—“effective occupations and effective, continuous and peaceful exercise of state authority.”
While Vietnam’s precolonial claim needs scrutiny, its invoking the French expedition could run aground. Yorac asked then: “Did the French expeditions in 1927 and 1930 redound to the benefit of Vietnam?”
China claims that people from its Hainan island have been in the Spratlys since ancient times. Vietnam disputes this, saying that China had never administered the islands effectively and continuously in the past, and that other peoples—Vietnamese, Malays, Persians and Arabs—had made voyages to the areas. Complicating the Chinese claim is the “two China” reality.
Taiwan occupies Itu Aba, the biggest island in the Spratlys. Will China seize this in the dead of night?
Malaysia bases its claim on the concept of exclusive control over the continental shelf. Its official map now covers part of the Spratlys. In 1988, 48 Filipinos fishing near the Commodore Reef claimed by Malaysia were detained by Malaysian authorities. The reef is where Malaysian and Philippine claims overlap.
The Filipino fishermen’s detention posed a diplomatic problem at that time, and President Corazon Aquino had to plead for their release. The men were later released but by then one had already died in prison.
In the early 1990s, Malaysia put up a resort hotel on Swallow Reef (Terumbu Layang Layang), which is in a contested area. I remember this. It was seen as Malaysia’s show of sovereignty and expansion of its continental shelf. However, I learned that reefs, on their own, cannot sustain human life and therefore cannot be taken as basis for measurement.
Oil-rich Brunei’s claim is similar to that of Malaysia. So far Brunei has not tried to occupy any reef or island.
Maybe the Philippines can learn a lesson or two from this: When Pugad island, the Philippines’ ninth island, was abandoned about two decades ago, the Vietnamese moved in with lightning speed.
May our power team at The Hague be a winning team.
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