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ASSIGNME NT

Politics and Governance with Philippine Constitution (POSC 1013) Jefferson Reyes
Student

Jose David Lapuz


Commissioner Professor

THE SPRATLY ISLANDS


Political Divisions:
Peoples Republic of China (Mainland China) Philippines Vietnam Malaysia Brunei Republic of China (Taiwan)

PART 1

INTRODUCTIO N

GEOGRAPHY:

Location:
Southeastern Asia, group of reefs and islands in the South China Sea, about two-thirds of the way from southern Vietnam to the southern Philippines

Geographic coordinates:
8 38 N, 111 55 E

Map references:
Southeast Asia

Area:
Total: less than 5 sq km Land: less than 5 sq km Water: 0 sq km Note: includes 100 or so islets, coral reefs, and sea mounts scattered over an area of nearly 410,000 sq km of the central South China Sea

Coastline:
926 km

Climate:
Tropical

Terrain:
Flat

Elevation extremes:
Lowest point: South China Sea 0 m highest point: unnamed location on Southwest Cay 4 m

Natural resources:
Fish, guano, undetermined oil and natural gas potential

Natural hazards:
Typhoons; serious maritime hazard because of numerous reefs and shoals

Geography - note:
Strategically located near several primary shipping lanes in the central South China Sea; includes numerous small islands, atolls, shoals, and coral reef

Source: http://www.travelblog.org/World/pg-geog.html

Basis of Claims:
Though long ignored internationally, claims to sovereignty over territory in the South China Sea are based on acts of discovery, Guide Question: occupation, and, more recently, on certain inferred rights over continental shelf What is the basis of Claim delimitation. Legal facets of the claims became between claimnants and the more salient for governments when the Spratly Islands? prospects for petroleum exploration became real during the 1970s and the 1982 LOS Convention emerged as the standard for demarcating offshore jurisdictional limits for resource exploitation.

Peoples Republic of China (Mainland China)


Chinas assertions of sovereignty in the South China Sea rest on historical claims of discovery and occupation. The Chinese case is well documented, going back to references made in Chou Ch'u-fei's Ling-Wai- tai-ta (Information on What Lies Beyond the Passes) during the Sung dynasty (12th century) and in the records of Chinese navigators during the Qing dynasty (18th century). Notable problems of authenticity and accuracy exist, however, in describing coastal points as implied references for the Spratly Islands. These problems are compounded by the fundamental question of whether proof of historical title today carries sufficient legal weight to validate acquisition of territory. Modern international law clearly recognizes that mere discovery of some territory is not sufficient to vest in the discoverer valid title of ownership to territory. Rather, discovery only creates inchoate title, which must be perfected by subsequent continuous and effective acts of occupation, generally construed to mean permanent settlement. Evidence of such permanent settlement is not compelling in the case of China's claim to the Spratlys. In 1992 China passed a special territorial sea and contiguous zone act to legalize its claims to the Spratlys. Article 2 of this legislation specifically identifies both the Paracels and Spratly archipelagoes as Chinese territory.

To uphold this claim to title, since 1988 China has deployed some 260 marines in garrisons on seven of the Spratly islets.

Philippines
The Philippines justifies its claims to the Spratlys principally on discovery of certain islands by Thomas Cloma in 1947. In 1956 Cloma proclaimed the creation of a new island state, Kalayaan (Freedomland), with himself as chairman of its Supreme Council. While no government ever recognized the lawfulness of this state, Cloma persisted with his claim until 1974, when ownership was officially transferred under a Deed of Assignment and Waiver of Rights to the Philippine government. The first official claim by the Philippine government came in 1971, mainly in response to a Philippine fishing vessel being fired upon by Taiwanese forces stationed on Itu Aba Island. The Philippine government reacted by protesting the incident and then asserted legal title by annexing islands in the Spratly group based on Cloma's claim. In 1978 the Marcos government formally annexed the archipelago to the Philippines and placed it under the administration of Palawan province. Interestingly enough, the official Philippine position contends that the Kalayaan Islands group are separate and distinct from the Spratlys and Paracels. This Philippine claim is predicated on a geological assertion that the continental shelf of the so called Kalayaan Island group is juxtaposed to the Palawan Province and extends some 300 miles westward, into the heart of the Philippines EEZ. To defend its claims, the Philippines currently has 595 marines stationed on eight islands. These bases are fortified with heavy artillery and are equipped with radar facilities, a weather station, and ammunition depots.

Vietnam

Vietnam also bases its claims to sovereignty over the Spratlys by right of cession from a French claim to the islands first made in the 1933. The French, however, made no subsequent efforts to perfect title to the Spratlys by occupation. Nor did the French act by returning after Japans departure following World War II, or by acting after Japan formally relinquished all title and future claims to the islands at the San Francisco Conference of 1951. Consequently, France possessed no lawful title to the Spratly group to which Vietnam could succeed. In any event, Vietnam moved in 1975 to secure its claim to possession of the Spratlys when it occupied thirteen islands of the group. In September 1989 Vietnam occupied three more islets, and has since taken at least nine additional atolls. By 1999, Vietnam had stationed 600 troops on at least twenty-seven Spratly land formations.

Malaysia
Malaysia has claimed sovereignty over twelve islands in the Spratly group, but those claims appear ill-founded. Serious doubt remains about the legal propriety of Malaysias assertions, which arises from Malaysias basing its claims to certain islands on ocean law principles associated with prolongation of a continental shelf seaward, rather than the accepted legal means of validating claim to title over territory through permanent occupation. The clear inference fromMalaysias claims is that a state possessing a continental shelf also possesses sovereign rights over land formations arising seaward from that shelf. That inference is misguided and flawed under contemporary international law. The 1982 LOS Convention neither stipulates nor invites such an interpretation. The Convention does set out a regime for an island, which is defined as a naturally formed area of land, surrounded by water, which is above water at high tide. The Convention also gives to a state with established sovereignty over an island the right to exploit living and non-living resources in the water column and on the seabed within that islands territorial sea, contiguous zone, and exclusive economic zone. The critical legal consideration for acquisition of sovereign title over an island formation, however, is not the geological affinity of a coastal state to island formations arising from continental shelves offshore. Rather, ownership derives from occupation, demonstrated by a continuous and effective

display of sovereignty through permanent settlement. As generally construed, establishing a few military outposts may be considered vestiges of occupation. Even so, for that military presence to meet the test of effective occupation through permanent settlement will depend on the longevity of the presence, and whether settlers can be permanently attracted to inhabit the region. Such occupation has yet to be effected by Malaysia. Moreover, while Malaysia may use the continental shelf provisions in the 1982 Convention to support its claims to seabed resources, those provisions do not legally uphold assertions to sovereignty over land formations that are permanently above sea level.

Brunei
Brunei has only one claim to the Spratly group, that being to a naturally submerged formation known as Louisa Reef. Similar to Malaysia, the legal premise for substantiating Bruneis claim flows from continental shelf provisions in the 1982 LOS Convention. Unlike Malaysias claims to island formations, however, Louisa Reef is a submarine feature and part of the seabed. Hence, it may be regarded legally as an extension of a continental shelf. The critical point here, of course, is Bruneis ability to demonstrate that Louisa Reef is indeed part of the extension of its continental shelf. Settlement here is neither necessary nor possible; the key criterion to be satisfied for ownership is whether the continental shelf can be substantiated as a natural prolongation seaward from the coastal territory of Brunei. Granting that, Brunei would enjoy the exclusive right to exploit resources of the reef. Brunei remains the only claimant without a military presence in the Spratly Islands. Even so, Louisa Reef is also claimed by Malaysia, which took possession of it in 1984. In sum, the Spratlys situation remains complicated by competing claims and the possibility of military clashes. Taiwan remains in control of Itu Aba Island; the PRC has occupied seven reefs and rocks since January 1988; Vietnam now occupies at least twenty-seven islands, reefs and cays. The Philippines controls at least eight principal islands and claims some fifty other islets, reefs, and shoals. Malaysia has troops on three atolls and asserts claims to nine other geological formations in the area. In addition, Brunei claims Louisa Reef. Consequently, the South China Sea has become a patchwork of conflicting

national claims, most recently driven by geopolitical considerations overdevelopment of potential hydrocarbon resources.

Republic of China (Taiwan)


Claims by Taiwan today mirror those of the PRC and evidence suggests that both governments have made efforts to coordinate positions on Chinese claims in international discussions of the Spratly issue. The legal bases for Taiwan's claims are its longstanding historic ties to the islands. Consequently, Taiwans claims suffer from deficiencies like those of the PRC, namely, that discovery of, and intermittent contact with, scattered island formations are insufficient cause to establish legal title to sovereignty. Taiwan was the first government to establish a physical presence on one of the Spratlys following the Japanese departure after World War II. Taiwan announced its claim to the atoll in 1947 and has occupied the largest island of the Spratlys, Itu Aba, constantly since 1956. Interestingly enough, this unchallenged exercise of control over Itu Aba for more than four decades may qualify as a display of continuous and peaceful sovereignty, a condition necessary for supporting a legal claim to the island. From the mid-1950s through the late 1980s, Taiwan maintained a force of some 500 soldiers on Itu Aba, although by 1999 the number of troops had been reduced to about 110.

PART 2 Philippines Claim on Spratlys

History of Spratly-Philippines:
The Philippines as the closest and archipelagic country of the Spratly island with another Five Asian countries claim the Spratly Islands including -- China, Taiwan, Vietnam, Malaysia and Brunei. Disputes among these six parties have led to various minor military skirmishes, the detention of fisherfolk and diplomatic rows in the past three decades. Control of the Spratlys is important since the region is supposed to contain large deposits of oil, gas, hydrocarbon and mineral resources. The islands are also strategically located in the sea lanes for commerce and transport in the South China Sea which is very close to the Palawan Province of the Philippines with a distant less than 200 nautical miles; a bases that Philippines has a legal ground that those islands are part of the Philippines. The Spratlys consist of about 26 islands and islets and 7 groups of rocks in the South China Sea found approximately between the latitude of 4 degrees to 11 degrees 30'N. and longitude 109 degrees 30'E. They have a maritime area of 160,000 square kilometers and an insular area of about 170 hectares. The Spratlys are popular among fishermen. However, they are considered dangerous for commercial navigation. Maps from the early part of the last century have advised seamen to avoid passing through them. Japan explored the Spratlys for military reasons during World War II. The British Admiralty and U.S. Navy have also ordered some top secret missions there. But the U.S. Navy never released the new charts of the Spratlys to civilian authorities. Writer Francois-Xavier Bonnet wonders about the role of the Spratlys during the Vietnam War. In 1933 a Philippine senator protested the French annexation of the Spratlys. A parliamentary committee studied the issue but the U.S. government, which controlled the Philippines at that time, did not take an interest in the matter. In 1946 Vice President Elpidio Quirino claimed the Spratlys on behalf of the Philippine government. A year later, the Philippine Secretary of Foreign Affairs declared that the "New Southern Islands" previously occupied by Japan during World War II were part of Philippine territory.

In 1955 the Philippine military reported that the Spratly island group was of "vital proximity" to the country. The following year, Filipino navigator and businessman Tomas Cloma issued a "proclamation to the whole world" claiming ownership and occupation of the Spratlys. Cloma sent six letters to the government about the need to settle the question of ownership of the islands. The vice president of the Philippines replied in 1957, assuring Cloma that the government "does not regard with indifference the economic exploitation and settlement of these uninhabited and unoccupied islands by Philippine nationals." According to Filipino law professor Haydee Yorac, the Cloma Proclamation was the first assertion of title to the Spratlys after Japan renounced its ownership of the islands in 1951 and 1952. In 1978 President Ferdinand Marcos issued a proclamation declaring ownership of most of the islands in the Spratlys. The area was renamed the Kalayaan (Freedom) Island Group. The proclamation laid the following basis for the Philippine claim: "By virtue of their proximity and as part of the continental margin of the Philippine archipelago"; that "they do not legally belong to any state or nation, but by reason of history; indispensable need, and effective occupation and control established in accordance with international law"; and while other states have laid claims to some of these areas, their claims have lapsed by abandonment and cannot prevail over that of the Philippines on legal, historical, and equitable ground." In 1995 President Fidel Ramos articulated the Philippine position regarding the Spratlys issue. He said "I would like to clarify that the Philippines does not only claim eight islands in the Spratlys but owns all islands and waters in the Spratlys as defined in the presidential decree issued by former President Marcos." Militarization of the Spratlys started in the 1970s. The Philippines sent a military contingent to occupy some of the islands in 1971. After four years, the Philippines had already established a military presence in six islands. Today, the Philippines occupies eight islands in the area. The Philippine military insists it is ready to protect and assert Philippine sovereignty in the Spratlys at all costs. However, in the mid-1980s the Philippine defense secretary publicly recommended that the Philippines should give up its claim to the islands, since it had limited capacity to defend them but the Philippine Government rejected the recommendation of the Philippine Defense Secretary.

Prospects are dim for international bodies like the International Court of Justice, International Tribunal on the Law and the U.N. Charter to resolve the issue of ownership in the Spratlys. A military solution should be avoided since it would threaten the stability of the region and the world. The best approach should be the forging of bilateral and multilateral agreements among claimants. Retired Philippine Ambassador Rodolfo A. Arizala has proposed the following options to peacefully settle the Spratlys dispute: Antarctic type of treaty, joint administration and co-imperium or condominium. The Antarctic Treaty was signed in 1959 by 12 countries which agreed to "freeze" their claims on the Antarctic Territories for the duration of the treaty. In the meantime, the claimants vowed to work for the development of new international legal arrangements to settle the dispute and the launching of scientific and cooperative activities in the region. Co-imperium or condominium refers to joint rights of administration. Condominium, in particular, covers the right to dispose of a territory. In 2004 the Philippines, Vietnam and China signed the controversial "Joint Marine Seismic Undertaking in Certain Areas in the South China Sea." The agreement excluded other claimants in the region. The agreement also covered many islands in the Spratlys which are claimed only by the Philippines. Opposition politicians are accusing the Philippine president of having committed treason. Is the "Joint Undertaking" the proper way to resolve the issue of ownership in the Spratlys? Dialogue among all parties should be continued. Cooperative activities should be pursued. But these approaches should all be done in a transparent manner.

Geographical Claims:
The Philippines began to lay its claim over the Spratly Islands in 1970s. The Philippines claims the western section of the Spratlys, or the "Kalayaan Island Group" as called by the Philippines. That encompasses 53 islands, reefs, shoals cays, rocks and atolls with an area of 64,976 square miles. It is about 450 nautical miles from Manila and 230 nautical miles from Palawan. The Thitu Island (renamed as Pag-asa/Pagasa by the Philippines) is the biggest island and the Philippines occupied this island in the 1970s. Along with Thitu Island, other islands in the Spratlys occupied by the Philippines include Flat Island (Feixin Dao in Chinese, Patag as the Philippines renamed it), Nansha Island (Mahuan Dao, Lawak), West York Island (Xiyue Dao, Likas), Lankiam Cay (Shuanghuan Shazhou, Panata), Loita Island (Nanyue Dao, Kota), and Commodore Reef (Siling Jiao, Rizal Reef).

Claims according to the Laws and Constitution:


GUIDE QUESTION:
Accordingly, since its first opportunity to officially define its national territory, the Philippines has consistently claimed boundaries that cover expanses of water greater than those traditionally recognized by international law in favor of nonarchipelagic states.

Is it Lawful or is it in the constitution that the Philippines is the claimnant of The Spratly Islands?

Thus, Article I of the Philippine Constitution of 1935 provided: The Philippines comprises all the territory ceded to the United States by the Treaty of Paris concluded between the United States and Spain on the tenth day of December, eighteen hundred and ninety eight, the limits of which are set forth in Article III of said treaty, together with all the islands embraced in the treaty concluded at Washington, between the United States and Spain on the seventh day of November, nineteen hundred, and in the treaty concluded between the United States and Great Britain on the second day of January, nineteen hundred and thirty, aD. All territory over which the present Government of the Philippine Islands exercises jurisdiction.

The pertinent provision of the Treaty of Paris relied upon as the original source of the claim to national boundaries reads as follows: A line running from west to east along or near the twentieth parallel of north latitude, and through the middle of the navigable channel of Bachi, from the one hundred and eighteenth (118th) to the one hundred and twenty seventh (127th) degree meridian' of longitude east of Greenwich, thence along the one hundred and twenty seventh (127th) degree meridian of longitude east of Greenwich to the parallel of four degrees and forty five minutes (445') north latitude, thence along the parallel' of four degrees and forty five minutes (4 45') north latitude to its intersection with the meridian of longitude one hundred and ineteen degrees and thirty five minutes (11935') east of, Greenwich, thence along the meridian of longitude one hundred and nineteen degrees and thirty five minutes (11935') t\8st of Greenwich to the parallel of latitude seven degrees and forty minutes (740') north thence along the parallel of latitude of seven degrees and forty minutes (740') north to its intersection with the one hundred and sixteenth (116th) degree meridian of longitude east of Greenwich, thence by a direct line to the intersection of the tenth (lOth) degree parallel of north latitude with the one hundred and eighteenth (l18th) degree meridian of longitude east of Greenwich, and thence along the one hundred and eighteenth (118th) degree meridian of longitude east of Greenwich to the point of the beginning. It is asserted that the above-mentioned treaty and subseqllent related treaties recognized and confirmed the same limits of Philippine territory, and the Philippines has always acted conformably to this claim. Thus all official maps issued by the Government and its agencies and instrumentalities have reflected such claim.In 1955, the Philippine Government, through its Secretary of Foreign Affairs, sent a note to the Secretary-General of the United Nations and diplomatic notes to other states notifying them that all waters embracedin the imaginary line described by the Treaty of Paris and other treaties mentioned in Article I of the Philippine Constitution were territorial waters of the Philippines, subject to the exercise of the right of innocent passage by vessels of friendly nations. In 1961, the Philippine Congress passed Republic Act No. 3046. By this law the Philippines adopted the straight baseline method to enclose its territorial wates, using the outermost islands and drying reefs of the archipelago in drawing the baselines but at the same time affirming the treaty limits set in the Constitution and the diplomatic note. In January 1973, President Marcos proclaimed the ratification of a new Philippine Constitution by citizens' allsemblies all over the country.

The new Constitution, like the one it purported to replace, contains a provision defining Philippine territory. The provision is an amplified version of the 1935 one. It reads:

The national territory comprises the Philippine archipelago with all the islands and waters embraced therein, and all other territories. belonging to the Philippines by historic right or legal title, including the territorial sea, the airspace, the subsoil, the sea-bed, the insular shelves, and other submarine areas over which the Philippines has sovereignty or jurisdiction. The waters around, between and connecting the islands of the archipelago, irrespective of their breath and dimensions, form part of the internal waters of the Philippines. Notably, no express reference is made in the new provision onto the treaties on which the original claim to maritime boundaries was based. It can be assumed that the .territories mentioned in these treaties are now subsumed by the phrase "territories belonging to the Philippines by historic right or legal title." By using broad and comprehensive terms in the definition of its national territory, the Philippines confirmed activeassertion of ownership over some islands in the Spratly group.

The West Philippine Sea:


The Philippine government has apparently made it settled doctrine to use "West Philippine Sea" to refer to the waters west of the country where the Philippines has overlapping territorial claims with five other nations, instead of the all-embracing tag of "South China Sea".

GUIDE QUESTION: What is the Governments justification of the West Philippine Sea?

Tellingly, Malacanang (the presidential palace) Friday (June 10) used West Philippine Sea for the first time in a statement reacting to Chinas warning on Thursday (June 9), issued through Ambassador Liu Jianchao, to rival claimants to the disputed Spratlys island group to stop searching for oil in the contested region without permission from China. The Republic of the Philippines has stated its position on the various territorial issues in the West Philippine Sea. We are committed to hold dialogue

with other claimants, presidential spokesperson Edwin Lacierda told a news briefing Friday. We call on all parties to refrain from inflammatory statements that would make it more difficult to reach a mutually agreeable solution, he said. In the past two weeks, the Philippines has publicly accused Chinese forces of being behind seven confrontations with Filipinos in the Spratlys in less than four months. However, Liu said the reported incidents were mere rumours or exaggeration, even as he asserted Chinas claim to the reputedly oil-rich Spratlys island chain. The islands are claimed in whole or in part by Brunei, China, Malaysia, the Philippines, Taiwan and Vietnam.

Based on history
Lacierda said the Palace was taking its cue from the Department of Foreign Affairs (DFA) which has been using West Philippine Sea in the series of letters and notes verbales protesting Chinas incursions into areas that the DFA claims were well within Philippine territory. The DFA earlier explained that using West Philippine Sea to refer to the waters where the disputed territories lie was in keeping with our tradition and history as well as reflective of its proper geographic location. The same waters have long been called Dagat Luzon, or Luzon Sea by our fisherfolk and the rest of our people, and referred to as such in published maps since time immemorial after the major Philippine island of Luzon", DFA spokesperson Eduardo Malaya explained earlier. On the other hand, South China Sea in Chinese is simply South Sea, while for the Vietnamese it is East Sea, he said. Akbayan party-list member Walden Bello has filed House Resolution No 1350 proposing to officially name the region the West Philippine Sea to strengthen [the Philippines] claim to these controversial waters and the natural resources found within.

The War over Spratly Islands:

MANILA, Philippines -- In an official meeting with Philippine Foreign Affairs Secretary Albert Del Rosario on 23 June 2011, US Secretary of State Hillary Clinton assured that the US is committed to defend the Philippines amidst rising security tensions in the South China Sea, which the Philippine GUIDE QUESTION: government now calls as West Philippine Sea. To operationalize this commitment, Secretary Clinton stressed that the US would provide the Philippines affordable and reliable military equipment in order to enhance the external defense capabilities of the Armed Forces of the Philippines (AFP), particularly in defending its territories in West Philippines Sea. The AFP is now preparing a shopping list of military hardware it wants from the US. So far, these words of Secretary Clinton are the most reassuring statements ever expressed by a top US official on the state of Philippines-American security relations. Since 1951, the Philippines and the US have been military allies through the Mutual Defense Treaty (MDT). This placed the Philippines on the side of the US in the cold war against the former Soviet Union. But their strong military relations became practically moribund with the termination in 1991 of the 1947 Military Bases Agreement (MBA). The termination of MBA coincided with end of the cold war between the US and the former Soviet Union. When the US withdrew its last remaining troops from Clark and Subic in 1992, their military relations reached its lowest moment leading to the rapid deterioration not only of Philippines-American alliance but also of Philippine military capabilities. China took advantage of this moment when it passed a law in 1992 declaring the whole of South China Sea as part of its internal waters. US reaction was ambiguous and underscored that it would remain neutral on the Spratly issue. However, Chinese occupation of the Panganiban (Mischief) Reef in 1995 prompted the US and the Philippines to fashion a new type of military relationship in order to respond to a China challenge in the Spratlys. In 1999, the Philippine Senate ratified the Philippines-American Visiting Forces Agreement (VFA) to justify the presence of American troops conducting joint and combined

Is the tension of Philippines and other claimnant, accelerating? Is it already a war?

military exercises with the AFP in Philippine territories. The VFA is said to have provided operational substance to the MDT, which serves as the cornerstone of Philippines-American security alliance. Despite the signing of the VFA, the US maintained its strategic ambiguities on the Spratly issue and declared its hands off position on the maritime disputes in the South China Sea. While the VFA renewed Philippines-American security relations, it failed to actually revive their military alliance. The China challenge in the Panganiban Reef at that time was not enough justification for US troops to become visibly involved in Philippine security. Things changed in 2001 when the US used the VFA to justify American presence in the Philippines as part of the global war on terrorism (GWOT). The GWOT reinvigorated the once dormant Philippines-American alliance. The GWOT even led to the signing of the Mutual Logistic Support Agreement (MLSA) in 2002 and the establishment of US Joint Special Operations Task Force Philippines (JSOTFP) Headquarters in Zamboanga City thereafter. The threat of terrorism, therefore, encouraged the Philippines and the US to work closely together. Chinas growing assertiveness in the South China Sea is now being viewed in the Philippines and the US not only as a security challenge, but more of a military threat. This is the context on why Secretary Clinton strongly expressed US commitment to defend the Philippines amidst tensions in the Spratlys. Secretary Clintons statement indicates the emerging cold war between the US and China in the Spratlys. A cold war is a situation where at least two major powers are involved in a security tension and subdued military hostility short of an actual military battle. Conflicts are expressed through proxy wars, military coalitions, propaganda, espionage, and even trade competitions. This situation is now emerging between the US and China in the contested Spratly group of islands.

Indications of an emerging cold war in the Spratly started to manifest in March 2009 when five Chinese ships harassed USS Impeccable, a US Navy minesweeper. The Chinese government claimed that the US ship was intruding in Chinas internal water, which was regarded by the US government as an international water where all ships can enjoy free or innocent passage.

The emerging cold war between the US and China on the Spratly issue is also manifested in the exchange of words between the two powers in various international forums like the Asia Pacific Economic Cooperation (APEC), the Shangrila Dialogue, and various meetings of the Association of Southeast Asian Nations (ASEAN) involving the two powers. The US exclaims that the US has a national security interest in the South China Sea. China, on the other hand, asserts that the South China Sea forms part of its core interests at par with Taiwan and Tibet. China, which says that it remains committed to the peaceful resolution of territorial conflicts, wants the US out of the South China Sea Disputes. But the US reiterates its willingness to get involved in the peaceful management of disputes in the Spratly while assuring its allies in the region of US military assistance. The Philippines is now inevitably involved in an emerging cold war between the US and China in the Spratly. As an American ally, the Philippines is apparently on the side of the US in this emerging situation. But will the Philippine government allows itself to get involved in a proxy war between the US and China when the cold war in the Spratly reaches its peak? This situation is something that all sovereign states have to prevent to happen.

A Diplomatic Solution to the Spratly Dispute:

The Philippines first took claim of the then called Kalayaan Group of Islands in 1956. Two decades later, it was discovered that the place was rich in oil and natural gases. Ever since then, disputes over what we now know as GUIDE QUESTION: Spratlys Islands heated. Among all the Nations vying over the potentially wealthy Islands, China and Vietnam had contested over it on several occasions resulting in sunken ships and countless deaths. Both claim historical rights over Spratlys dating who knows when.

Is there be a peaceful way in claiming the Spratly Island? Does it help that the Island is nearer to the Philippines? What is the philippines

Now, the Philippines is taking a Position that we claim the stand. After all, based on the Islands? international convention on the laws of the sea, the country has rightful claim over Spratlys Islands. But what can a poor country with scarcely enough resources on its own take on a super power nation whose economy is closely linked to its own. The solution, a diplomatic talk between two the two countries the way the Greeks did in ancient times. In the Trojan war, the battle waged endlessly for several years. One day, Achilles stood up and challenged Hector to a battle which would ultimately change the course of the Trojan war. Fighting for the Philippines would be Sarangani Province Representative and pound for pound boxing king, Manny Pacman Pacquiao. For China, fighting would be Hong Kongs cheeky, lovable and best known film star, Jackie Chan. Jet Li whos a Wushu (a martial art) national champion in China several times would have been a better contender but he apparently gained Singaporean citizenship in 2009. And Singapore is apparently not part of China. The stage will be on neutral gounds, preferably on an Asian country that is not part of the dispute over Spratlys. Indonesia fits the criteria well. Although

they had a history concerning an incident race killing off some Chinese in the past, that can be easily overlooked. It will be broadcasted all over the world, in all the major channels. No advertisements are allowed though, people might grow to an even fiercer rage. Who knows what people might do during a commercial break. The fight will only last for 12 rounds with 3 mins each round and should not reach dawn. The Chinese have a reputation for fighting from dusk until dawn like in the movies. It would be unfair for Pacquiao since his scheduled is booked with Congressional meetings, tv shows and commercial shootings. Both fighters will be fighting in hand to hand combat only. Gloves and other protective gear are optional but they should not be made of any metal or plastic. Standard boxing rules apply except for the no hitting below the belt rule. This may be a disadvantage for Pacquiao but if he lands a solid blow below the belt, it could also be devastating. No acrobatics is allowed. Jumping no higher than shoulder height is allowed. Pacquiao does have killer footwork but what will it do if Jackie Chan is able to leap high up in the air and do an awesome acrobatic attack. Though the fight between Achilles and Hector was one sided (with Achilles being invincible and all) and it ended brutally, and it didnt really stop the trojan war, it made for great entertainment. Imagine the thrill of the soldiers of both sides who witnessed the epic face-off. Not that anyone wishes to see bloody ending. An even more epic fight between Manny Pacquiao and Jackie Chan would, in a way, decrease tension between the two partner nations especially after the fight when both fighters hold each others hand high up above the air regardless of the bloodshed to exemplify camaraderie and friendship.

U.S.A. on Spratlys:
United States lawmakers backed the Philippines position on the disputed Spratly Islands, calling for a peaceful resolution based on international law as conflicts heightened in recent months with the Philippines and Vietnam swapping allegations of intrusions against China.

GUIDE QUESTION: What is the stand of U.S.A. in claiming the Spratly Island?

Rep. Ileana Ros-Lehtinen, chairman of the US House Committee on Foreign Affairs, introduced on Friday Resolution 352 calling for a peaceful and collaborative resolution of maritime territorial disputes in the South China Sea and its environs and other maritime areas adjacent to the East Asian mainland. The motion adds an important voice to Manilas position that the Spratlys territorial disputes in the South China Sea should be resolved peacefully within a multilateral framework and in accordance to the United Nations Convention on the Law of the Sea (UNCLOS). Foreign Affairs Secretary Albert del Rosario welcomed the resolution cosponsored by Rep. Don Manzullo, chairman of the House Subcommitttee on Asia and the Pacific, and Rep. Eni Faleomavaega, ranking member of the House Subcommittee on Asia and the Pacific. It was issued at the heels of an Association of Southeast Asian Nations (Asean) ministerial meeting in Bali, Indonesia, where the disputes are expected to dominate the discussions that will include key dialog partners like the US and China. The Philipppines strongly believes that a rules-based approach provides the key to validating our claims and advancing the peaceful and fair settlement of the dispute, Del Rosario said. The resolution, which had 27 other co-sponsors 18 Republicans and nine Democrats, recognizes the commitment pledged by US Secretary of State Hillary Clinton during a meeting with Del Rosario early this month that Washington will provide affordable hardware to modernize the cash-strapped Philippine military. China claims the South China Sea in its entirety while the Philippines, Vietnam, Malaysia and Brunei, claim parts of the vast waters believed to be rich

in oil and natural gas. The South China Sea is also coveted for its rich fishing grounds and strategic location near shipping lanes. Manila refers to the waters as West Philippine Sea to stress its claim. With no immediate solution in sight and Chinese incursions on Manilaclaimed territories have continued, the Philippines announced that it will resort to arbitration to resolve the disputes peacefully. But Beijing rejected Manilas position to go to the International Tribunal for the Law of the Sea (ITLOS), where it aims to seek an interpretation of the UNCLOS and on how its rules would apply on the overlapping claims of both states. Del Rosario criticized Chinas reluctance to bring the disputes before the UN tribunal, saying it leads to the conclusion that Beijing may not be able to validate their stated positions in accordance with international laws. Philippine officials believe a ruling in favor of the Philippines would fortify the countrys legal claim in the Spratlys. Relatedly, Philippine lawmakers have asked the Aquino administration to solidify the countrys claim over the hotly contested Kalayaan group of islands (Spratlys) by building new structures that will not only increase local defensive capabilities but also promote Philippine tourism. In House Bill 4892, Representatives Rufus Rodriguez (Cagayan de Oro City) and Maximo Rodriguez (Abante Mindanao Party list) sought a P1-billion allocation for the improvement and fortification of existing structures and the construction of new facilities in the islands such as harbors and berthing facilities. The Cagayan de Oro lawmaker said the country must build more structures and fortify its defense of the Kalayaan islands in order to protect its sovereignty and strengthen its claim over these islands. These islands have been the subject of claims of different countries including Vietnam, Palau, Malaysia and China, Rodriguez said in a statement posted on the House of Representatives Web site. He added the Philippine government has contested the unilateral partial submission by Vietnam saying this overlaps with those of the Philippines.

The Philippines also contested the submission by the Republic of Palau, establishing the outer limits of its continental shelf that lie beyond 200 nautical miles, saying the baselines from which the breadth of the territorial sea of Palau is measured overlaps with the maritime jurisdiction of the Philippines, Rodriguez added. The different claimants, particularly China, have built strong fortifications and military structures in the islands surrounding the Kalayaan islands. On several instances, Chinese gunboats even confiscated fishing nets of Filipino fishermen, Rodriguez said. These increasing Chinese intrusions and their illegal occupation of Mischief (Panganiban) Reef are already alarming to the countrys security, Rodriguez stressed. According to Rodriguez, in order to strengthen our claim and protect our sovereignty, we need to build more structures and fortify our defense of these islands, particularly the construction of a safe harbor as well as the repair of the Rancudo airfield on Pag-Asa Island. Aside from solidifying our claim, the construction of structures in the Kalayaan Islands would also improve the tourism industry in the islands, Rodriguez said. Kalayaan island is a 5th class municipality in the province of Palawan, Philippines with a population of about 300 to 400 people. It has one barangay, Pag-Asa, and a 1.3-kilometer airstrip that is used by both the military and civilians.

PART 3 Conclusions and evidences

The EEZ
The Exclusive Economic Zone or EEZ, is defined as an area beyond and adjacent to the territorial sea, subject to the specific legal regime, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention. The UNCLOS has the rights and responsibilities of nations in their use of the world's oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources. Interpreting the definition of the EEZ may result of a peaceful way in exploring the other Islands such as the Spratly Islands. When the EEZ is used as the basis of claim, the Philippines is ranking the first making the country to claim the Spratly Islands. But the consequence is greater. Although the EEZ is there, the EEZ does not touches all the Islands of Spratly. the scope of the EEZ is only 8 Islands. Fortunately, Chinas EEZ does not touches all the islands of Spratly. Same to the other claimnant. Article 58 of Law of the Sea states that: In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention. Therefore, China has not the right to send warships and barricade to the certain Islands. All the Islands has not issued law of claimnant and the states has the right to have an equal diplomacy as stated at the article 59 of LOS(Law of the Sea): In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.

THE PHILIPPINES AND THE ARCHIPELAGIC DOCTRINE


Archipelago is defined as a sea or part of a sea studded with islands, often synonymous with island groups, or as a large group of islands in an extensive body of water, such as sea. (De Leon, 1991) In various conferences of the United Nations on the Law of the Sea, the Philippines and other archipelago states proposed that an archipelagic state composed of groups of islands forming a state is a single unit, with the islands and the waters within the baselines as internal waters.By this concept (archipelagic doctrine), an archipelago shall be regarded as a single unit, so that the waters around, between, and connecting the islands of the archipelago, irrespective of their breadth and dimensions, form part of the internal waters of the state, subject to its exclusive sovereignty. Despite the opposition of maritime powers, the Philippines and four other states (Indonesia, Papua New Guinea, Fiji and Bahamas) got the approval in the UN Convention on the Law of the Sea held in Jamaica last December 10, 1982. They were qualified as archipelagic states. The archipelagic doctrine is now incorporated in Chapter IV of the said convention. It legalizes the unity of land, water and people into a single entity The Philippines bolstered the archipelagic principle in defining its territory when it included in Article 1 of the 1987 Constitution the following: "The national territory comprises the Philippine Archipelago, with all the islands and waters embraced therein xxx"; and "The waters around, between and connecting the islands of the archipelago, regardless of their dimensions, form part of the internal waters of the Philippines." On the strength of these assertions, the Philippines Archipelago is considered as one integrated unit instead of being divided into more than seven thousand islands. The outermost of our archipelago are connected with straight baselines and all waters inside the baselines are considered as internal waters. This makes the large bodies of waters connecting the islands of the archipelago like Mindanao Sea, Sulo Sea and the Sibuyan Sea part of the Philippines as its internal waters, similar to the rivers and lakes found within the islands themselves.

The archipelagic principle however is subject to the following limitations: a) respect for the right of the ship and other states to pass through the territorial as well as archipelagic waters b) respect to right of innocent passage c) respect for passage through archipelagic sea lanes subject to the promulgation by local authorities of pertinent rules and regulations.

Cartographs and geographical map of the Spratly Islands

What is the diplomatic rule of the Republic of the Philippines?


China's pledge in July, at the annual meeting of the Association of South East Asian Nations, that it would negotiate disputes over ownership of the Spratly Islands in the South China Sea according to international law, and discuss the issue with ASEAN as a group, has set the stage for a solution. The six claimants China, Taiwan, Vietnam, Malaysia, the Philippines and Brunei start fresh talks with Indonesian officials this Tuesday to try to ease renewed tension over the disputed area, a potentially rich zone for undersea oil and natural gas. What does international law say about possible solutions? The main guidance is provided by previous international agreements, rulings by the International Court of Justice, and the 1982 United Nations Convention on the Law of the Sea. Beijing has said it will use the convention as a basis for negotiations, although of the six claimants only the Philippines and Vietnam have actually ratified it. The precedents in international law suggest that all the claims to sovereignty over the Spratly Islands a group of tiny islets, sand cays and reefs scattered widely over the southern sector of the South China Sea are weak. The historic record supporting the claims of China, Taiwan and Vietnam is incomplete and intermittent, and would probably be unconvincing to the International Court of Justice. None of the claims to the Spratlys, including the more recent claims of Malaysia, the Philippines and Brunei, is supported by the requisite continuous and effective control, administration and governance. Even if some of the sovereignty claims were to prevail, these tiny outcrops in the sea do not appear to be legally qualified to generate surrounding exclusive economic zones out to 200 nautical miles, or the even more extensive continental shelves. According to the Law of the Sea Convention, rocks that cannot sustain human habitation or an economic life of their own cannot be the basis for such zones; nor can artificial islands. Only some 26 features in the Spratly chain are above water at high tide. The largest has a land area of less than half a square kilometer, and only six others are bigger than 0.1 square kilometer. None of them has ever sustained a

permanent population. Vietnam has already taken the position that these islets should not generate extended maritime zones, and other countries in the region seem to be moving toward this view. Even if the Spratlys were deemed to be the source of extended zones, they would not have equal weight to do so in relation to the larger land masses that surround the South China Sea. The International Court of Justice and other tribunals have consistently ruled that small islands do not play an equal role in determining maritime boundaries, and sometimes are ignored altogether. For example, Vietnam and Malaysia have continental shelf claims extending well into the Spratly area, and these claims would be considered superior to any claims based on the islets. If the court were asked to determine the maritime boundaries in the area, it would probably define the area in dispute, measure relevant coastlines and identify significant geographical features to be taken into account. It would develop provisional boundaries based roughly on median lines, check to see whether those lines violated "equitable principles," focusing in particular on the relative coastline lengths and relying on a rough sense of fairness to each claimant. It would then adjust the lines accordingly. In a maritime boundary settlement following such principles and ignoring the Spratlys and the Paracel Islands in the northern part of the South China Sea (which Chinese forces seized from Vietnam in 1974), China-Taiwan, Vietnam and the Philippines would gain roughly equal areas. Although most of the Macclesfield Bank southeast of the Paracels would go to China-Taiwan, it would not get any of the Spratly geologic block further to the south. The Philippines would get the northwestern portion of the Spratlys, including the Reed Bank. Malaysia would get two sizable sectors off its states of Sarawak and Sabah separated by Brunei's narrow corridor. Sovereignty over the Spratlys themselves might be allocated based on the sector in which they are situated, or might eventually fall to the present occupants. But in either case, sovereignty would be limited because the islets would generate only a 500-meter safety zone or perhaps a territorial sea out to 12 nautical miles. The Spratlys would be demilitarized and open to access for peaceful purposes by other claimants. If the claimants could not agree to an allocation scheme, the UN Law of the Sea Convention requires them to establish a provisional arrangement. The

convention also urges cooperation in semi-enclosed seas as well as sharing of the resources in areas beyond 200-nautical-mile exclusive economic zones. These principles taken together favor a dramatically different option multilateral joint development of an agreed area. One logical approach would be for China, Taiwan, Vietnam, Malaysia, the Philippines and Brunei to set aside their claims for now and establish a multilateral Spratly Management Authority. The authority would administer the contested area, which could be defined in several possible ways. Our preferred option would be to define it as the area beyond a line halfway between the coastline of the South China Sea and the disputed features in the Spratlys. The claimant states could be given weighted voting shares in a governing council and financial responsibility in the authority in rough relationship either to their coastline lengths or the original extent of their claims. In either case, China-Taiwan would have a substantial portion of shares, benefits and costs. Decisions would normally be made by consensus, but when voting became necessary, substantive decisions on matters affecting the entire area would be taken by a two-thirds vote of the assigned shares. Decisions affecting a particular location might require a majority of the votes in the governing council as well as a majority of the claimants to the affected area. Nonclaimant states in the region and perhaps concerned maritime nations outside the region might have a voice, but not a vote, in the operation of the Spratly Management Authority. The multilateral joint development solution to the Spratlys imbroglio should be attractive, since all claimants would be sharing in the proceeds from the exploitation of resources in and under the disputed waters. The continuing discord and threat of conflict now dominating the region are discouraging investors. If a cooperative solution could be developed, the claimants would be working together to explore and develop oil and gas, manage fisheries and maintain environmental quality. Such cooperation would greatly reduce the chances of miscalculation and dangerous confrontation.

Other powers not involved in the Spratlys dispute, including the United States and Japan, would be highly supportive because safety and freedom of navigation would be assured through the South China Sea, which is an important maritime highway for naval and commercial shipping of many nations. Mr. Valencia is a senior fellow in the program on international economics and politics at the East-West Center in Hawaii. Mr. Van Dyke and Mr. Ludwig are specialists on international law and resources at the University of Hawaii. They contributed this comment to the International Herald Tribune.

Is the tension of Philippines and China, Accelerating?


Tensions between China and the Philippines have also heightened in recent weeks over disputed South China Sea claims. The Philippines has recently complained about Chinese naval ships in disputed waters and sent military aircraft to an area known as Reed Bank in March after Chinese vessels harassed a Philippines survey ship. On Thursday Liu Jianchao, the Chinese ambassador to the Philippines, warned countries in the region to stop searching for undersea resources "in these areas where China has its claims," and denied any harassment of Philippine ships. He said that Chinese activities in the area were "part of our exercise of jurisdiction," the Associated Press reported. In 2002 the rival claimants agreed to resolve their disputes over the South China Sea peacefully. But little progress had been made since then. Last year Secretary of State Hillary Clinton said the U.S. would help mediate talks. That angered China, which wants to keep any discussions limited to the rival claimants. But Clinton's comments may have emboldened some states, particularly Vietnam, to stand up to China. During the Shangri-La summit outgoing U.S. Defense Secretary Robert Gates expressed concern about rising tension in the South China Se, and that without further agreements among regional claimants disputes were likely to continue. "I feel that without rules of the road and without agreed approaches to dealing with these problems there will be clashes," Gates said.