Retracing The South China Sea Dispute

by Joseph G. Lariosa

CHICAGO (JGL) – After Spain ceded the Philippines to the United States for $20-million more than a hundred years ago, there was not much visible island that dotted the Philippine Western Sea (South China Sea) map, according to a 1904 Philippine map obtained by the Journal GlobaLinks (JGL) from Newberry Library in Chicago, Illinois.

As more and more sophisticated modern satellites became available, it now appears that there are nearly 200 reefs, banks, shoals and islands that are now visible in the Philippines Western Sea (South China Sea).

This can be gleaned from the map from the United States Central Intelligence Agency (CIA), which has identified nearly 200 reefs, banks, shoals and islands in the Philippines Western Sea (South China Sea) that are being claimed by the Philippines, China, Malaysia, Taiwan, Vietnam and Brunei.

But it could also be suggested that due to climate change, the vast ocean must be receding by a few feet over time that some invisible reefs during the signing the of 1898 Treaty of Paris when Spain ceded the Philippines to the United States following the Spanish-American War and the Philippine Revolution have now started to appear above the waters.

Some 24 reefs are visible at high tide. About 158 of these are located at Spratly Islands while 37 are at Paracel Islands.

The post-civil-war founded U.S. Board on Geographic Names (BGN), a Federal body created in 1890, has assigned names for all these islands and islets, as do the Chinese. Under the map nomenclature, for instance, some of them have names in English, “Chinese Official,” “Other Chinese,” Vietnamese, Malaysian, Filipino, French and Vietnamese.

For instance, Reed Tablemount (BGN) plateau/bank is Recto Bank (English), Liyue Tan (Chinese Official), Li-yueh T’anT’an/Lile Tan (Other Chinese), bai Co Rong (Vietnamese), Recto (Filipino) and Banc Reed (French).

PALMAS CASE TRIGGERED CHINA TO RECLAIM SCS ISLANDS?

But what might have triggered the Chinese to suddenly reclaim these islands and reefs was the pre-World War II ruling handed down by the pre-United Nations Permanent Court of Arbitration in The Hague, where the United States lost one of the islands just below or at the “paw” of Mindanao to Indonesia after the Philippines was occupied by the U.S. Indonesia was a former colony of the Netherlands.

The seminal case of the Island of Palmas Case, (Scott, Hague Court Reports 2d 83 (1932), (Perm. Ct. Arb. 1928), 2 U.N. Rep. Intl. Arb. Awards 829), was a case involving a territorial dispute over the Island of Palmas (or Miangas) between the Netherlands and the United States, which was heard by the Permanent Court of Arbitration in The Hague. The Palmas (Indonesian: Pulau Miangas) was declared to be a part of the Netherlands East Indies, which is now part of Indonesia.

Palmas (Miangas) is an island of little economic value or strategic location. It is two miles in length, three-quarters of a mile in width, and had a population of about 750 in 1932, when the case was decided. Palmas lies between Mindanao, the southernmost part of the Philippines, and the Nanusa Islands, the northernmost part of Indonesia other than Palmas.

In 1898, Spain ceded the Philippines to the United States in the Treaty of Paris (1898) and Palmas lay within the boundaries of that cession to the U.S. In 1906, the United States discovered that the Netherlands also claimed sovereignty over the island, and the two parties agreed to submit to binding arbitration by the Permanent Court of Arbitration. On Jan. 23, 1925, the two governments signed an agreement to that effect. Ratifications were exchanged in Washington on April 1, 1925. The agreement was registered in League of Nations Treaty Series on May 19, 1925. The arbitrator in the case was Max Huber, a Swiss lawyer.

The question before the arbitrator was whether the Island of Palmas (Miangas), in its entirety, was a part of the territory of the United States or the Netherlands.

The legal issue presented was whether a territory belongs to the first discoverer, even if they do not exercise authority over the territory, or whether it belongs to the state, which actually exercises sovereignty over it.

It is interesting to note that the ruling of the Permanent Court of Arbitration against the United States on April 4, 1928 was decided by a sole arbitrator, Max Huber, a Swiss lawyer and diplomat who represented Switzerland at a series of international conferences and institutions.

3 RESOLUTIONS OF DISPUTE

In that landmark ruling, three important rules for resolving island territorial disputes were decided:

Firstly, title based on contiguity has no standing in international law. This means that just because an island abuts near the coastline of a certain nation, that nation does not necessarily owned that land, which is against the Roman law.

Secondly, title by discovery is only an inchoate title. This means that the first to discover the island does not necessarily mean that he has a perfect the title of the land. For instance, if Magellan first discovered the Philippines in 1521, he could not have laid claim to the archipelago if Magellan’s sponsors of his travel – the Spanish Crown – did not return to the Philippines to occupy and settle in the islands.

And finally, if another sovereign begins to exercise continuous and actual sovereignty, (and the arbitrator required that the claim had to be open and public and with good title), and the discoverer does not contest this claim, the claim by the sovereign that exercises authority over the land had a clear title to the land.

Perhaps, China got wind of this ruling and suddenly switched to high gear in reclaiming some of the islands lately “to exercise actual sovereignty” per Palmas case.

But China did not realize that this arbitral rulings were superseded in 1982 by the U.N. Convention of the Law of the Sea (UNCLOS) that extended the territorial waters of the coastline of a country to 12 nautical miles (22 kilometers; 14 miles), in which the coastal state is free to set laws, regulate use, and use any resource. Vessels were given the right of innocent passage.

This was further stretched by another 12 nautical miles from territorial sea baseline limit as contiguous zone in which a state can continue to enforce laws in four specific areas: customs, taxation, immigration and pollution, if the infringement started within the state’s territory or territorial waters, or if this infringement is about to occur within the state’s territory or territorial waters. This makes the contiguous zone a hot pursuit area.

This was further extended to 200 nautical miles (370 kilometers; 230 miles) from the baseline called Exclusive economic zones (EEZs). Within this area, the coastal nation has sole exploitation rights over all natural resources. In common language, the term may include the territorial sea and even the continental shelf. The EEZs were introduced to halt the increasingly heated clashes over fishing rights, although oil was also becoming important.

SUCCESS IN GULF OF MEXICO

The success of an offshore oil platform in the Gulf of Mexico in 1947 was soon repeated elsewhere in the world, and by 1970 it was technically feasible to operate in waters 4,000 meters deep. Foreign nations have the freedom of navigation and over flight, subject to the regulation of the coastal states. Foreign states may also lay submarine pipes and cables.

And finally, this was further extended to 350 nautical miles (650 kilometers; 400 miles) from the baseline called Continental shelf, the natural prolongation of the land territory to the continental margin’s outer edge, or 200 nautical miles (370 km) from the coastal state’s baseline, whichever is greater.

The continental shelf cannot exceed 350 nautical miles (650 kilometers; 400 miles). The distance of Botolan, Zambales from Scarborough Shoal is 524 miles (455 nautical miles) while China’s Hainan province is 556 miles (483 nautical miles) from Scarborough Shoal, which is beyond China’s continental shelf. The Treaty of Paris of 1898 placed Scarborough Shoal near the border of Philippine map.

Further south are the bulk of the Spratly and Paracels Islands, which China claims to be part of its nine-dash-line.

On the other hand, the Permanent Court of Arbitration constituted under the Annex VII to the 1982 U.N. Convention of Law of the Sea between the Philippines and China is composed of arbitrators by Thomas A. Mensah (presiding) of Ghana with Jean-Pierre Cot of France, Rudiger Wolfrum of Germany, Alfred H. Soons of Netherlands and Stanislaw Pawlak of Poland as members.

They ruled last October 29 that China’s “non-appearance” (i.e., refusal to participate) did not preclude the Court’s jurisdiction, and that the Philippines was within its rights in filing the case. The decision means that the Permanent Court of Arbitration rules in the Philippines’ favor on the question of jurisdiction. With the jurisdiction resolved, the case can move forward to evaluating the merits of the Philippines’ legal assertions in the South China Sea.

International law may come to play a major role in determining where tensions in the South China Sea end up. The Court expects to issue a decision on the merits of this case in 2016.

The dispute has been affected by the fact that, after Japan renounced all claims to the Spratly Islands and other conquered islands and territories in the Treaty of San Francisco and Treaty of Peace with the Republic of China (Taiwan), it did not indicate successor states.

The Philippines bases its claim on its geographical proximity to the Spratly Islands. In 1956, the dispute escalated after Filipino national Tomas Cloma and his followers settled on the islands and declared the territory as “Freedomland”, now known as Kalayaan, in favor of occupation by the Philippines.

The People’s Republic of China claims it is entitled to the Paracel and Spratly Islands because they were seen as integral parts of the Ming dynasty. China and Taiwan have these same territorial claims. Taiwan took control of the largest island in the group, called Itu Aba.

Vietnam states that the islands have belonged to it since the 17th century, using historical documents of ownership as evidence. Hanoi began to occupy the westernmost islands during this period.

In the early 1970s, Malaysia joined the dispute by claiming the islands nearest to it.

Brunei also extended its exclusive economic zone, claiming Louisa Reef.

 

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