Spratly’s Shifting Significance

by Manuel B. Quintal, Esq.

The value of anything to anyone is never permanent. This is true to individuals, as it is to countries. As the often cited quote attributed by some to Disraeli states, “there are no permanent friends, only permanent interests.” For one reason or another, the attention given and significance attributed to the Spratly have changed through the years.

As a college student of Political Science at the onset of the 1970’s, I was assigned a term paper about those little islands in South China Sea, collectively known internationally as Spratly Islands, that were not even shown in many maps, or if shown, appeared like dots in the middle of a vast expanse of blue waters. Since then, I had developed some interest, if not fascination with the area. Before the 1950’s, those little islands were of equally little or no significance for any country to give attention to or spend financial resources for. That time, an adventurous Filipino seaman and owner of a maritime institute in Manila, Tomas Cloma, considered the specks of islands as ownerless and unoccupied pieces of real property and so he claimed them for himself. He named it Freedomland. Interested parties, notably then South Vietnam, China, and Taiwan protested but did nothing more. Except for transient fishermen who took rest on them during fishing trips, the little islands were inhabited by the birds of the sea that deposited their unwanted droppings thereat, and made guano a natural resource. Unable to get recognition for his claim, Cloma, in about 1974, turned it over, to the Philippines. And to show that it was seriously pursuing its claim, the Philippines started to encourage settlers there, particularly in the biggest island, and sent a contingent of soldiers to maintain permanent and effective presence. Today, the Municipality of Kalayaan, is administratively part of the Province of Palawan. Parts of the South China Sea where the Philippine-claimed islands situate are now referred to by Manila as West Philippine Sea.

“That time, an adventurous Filipino seaman and owner of a maritime institute in Manila, Tomas Cloma, considered the specks of islands as ownerless and unoccupied pieces of real property and so he claimed them for himself. He named it Freedomland.”

Cloma apparently did not know what limitless natural resources were in and around those little islands, some of which only appear during low time. Their economic value has been known to be much more than Cloma could have imagined. Advancement in science made it possible to know more. As the present United States Ambassador to the Philippines said, and I quote: “In its waters, scientists have discovered hundreds of species of fish, coral, seagrass, and other marine life existing in interdependent systems that teach us about the planet’s complexity, fragility, and resilience.” “These habitats not only provide the fish that fill Filipino fishing vessels (and Filipino plates), they also serve as spawning grounds for schools that populate seas throughout Southeast Asia”, he added.

No wonder the Spratly have acquired greater significance and determined claimants today. The ongoing dispute between China and the Philippines (as well as all other coastal countries in that area South China Sea), arises from the conflicting and overlapping claims of territorial boundaries, despite existing international law on the subject. It has always been recognized under international law that the delimitation of sea areas does not depend on the will of one state alone. The International Court of Justice in 1951, in the Fisheries Case involving the United Kingdom and Norway, stated: “The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law.”

“The ongoing dispute between China and the Philippines (as well as all other coastal countries in that area South China Sea), arises from the conflicting and overlapping claims of territorial boundaries, despite existing international law on the subject.”

Before 1958, the seas were divided into the high seas, which were either considered closed to many or open to all, depending on who was the dominant naval power of the time, and territorial seas, which were parts of the seas that were under the exclusive control of the coastal state. The extent of territorial sea that countries claimed as its own varied. When cannon shots could reach only as far as three miles, countries adopted the so-called three-mile rule. For hundreds of years, this was the prevailing rule. With improvements in naval warfare, some countries adopted ten-mile territorial limit rule. In 1945, the United States responding in part to the pressure from domestic oil businessmen, unilaterally and effectively extended its jurisdiction over all natural resources on its continental shelf.

In 1958 up to 1994, treaty law and customary international law divided the seas into three areas: high seas, territorial seas, and continental shelf.

Today, the international law governing the seas is the United Nations Convention on the Law of the Sea (UNCLOS, or as other refer to it, LOSC), signed on December 10, 1982 in Montego Bay, Jamaica, and became effective on November 16, 1994, when sixty (60) countries acceded it, although some with reservations. First the first time, international law recognized the archipelagic principle that the Philippines, Indonesia and other similarly-constituted states persistently advocated. Countries may no longer legally claim an expanse of the sea beyond what the UNCLOS determines. It is a fact, however, that the expanse of those limits can be overlapping., and therefore, the conflicts result. UNCLOS did not solve the conflicting claims. It was not, as one author at the time said, expected to solve boundary disputes. It serves as an avenue or tool to settle those conflicting issues.

“UNCLOS divided the waters, into, territorial waters, contiguous zone, and exclusive economic zone (EEZ). Territorial waters or territorial sea consists of the coastal waters extending 12 miles from the base line of the coast. It is a sovereign territory of the coastal state, but foreign military and civilian ships are allowed innocent passage.”

UNCLOS divided the waters, into, territorial waters, contiguous zone, and exclusive economic zone (EEZ). Territorial waters or territorial sea consists of the coastal waters extending 12 miles from the base line of the coast. It is a sovereign territory of the coastal state, but foreign military and civilian ships are allowed innocent passage. Sovereignty of the coastal state extends to the airspace above it and the seabed below it. The contiguous zone consists of the outer edge of the territorial waters or territorial sea up to 24 nautical miles from the baseline. Within this part of the waters, the coastal state can enforce limited control for preventing and punishing infringements or violations of its customs, fiscal, immigration laws, and sanitation laws and regulations within its territory or territorial sea. The Exclusive Economic Zone (EEZ) is that area of the waters that extends to 200 nautical miles from the baseline. The coastal state has control over all economic resources therein, including fishing, mining, and all exploration.

Note that all the above areas of the waters are measured from the baselines. Although the UNCLOS defines the limits of the territorial waters and the rights and obligations of the countries, it requires the countries to adopt their own laws to conform to UNCLOS’ requirements.

Following the UNCLOS requirements, the Philippines on March 10, 2009, passed the Philippine Archipelagic Baseline Law (R.A. 9522), determining the baseline upon which the 12 nautical miles of its territorial sea will begin. Under this law, the Philippine territory includes the Kalayaan (Freedom) Group as described under Presidential Decree No. 1596 and Bajo de Masinloc (Scarborough Shoal), thereby extending the Philippines EEZ.

China, on its part, adopted its own law which in effect claims most of the South China Sea as its own under what it calls a “historic right” and nine-dash line rule. This necessarily conflicts with the Philippine claims.

From the time the Marcos administration, by decree, annexed the islands claimed by Cloma to the Philippines, nothing much were written or publicized about activities in that area. The Cory Aquino and Ramos administrations directed their attentions to more immediate concerns within the long-established parts of Philippine territory. The Arroyo administration, according to reports, negotiated for a partnership with China to exploit the resources in the Spratly. The Ninoy Aquino administration challenged the claims of China before the Permanent Court of Arbitration (PCA) and in 2016, got a favorable ruling: China had no historical rights to the resources in the areas under its self-proclaimed nine-dash line rule. This ruling was a moral and political victory. However, there is no way the Philippines can have it enforced or pursued further. It does not have the resources to do otherwise. China’s military and economic powers are too much for the Philippines to ignore.

“Many now, however, consider the policy as not independent but leaning more to China. To be fair, it is really too much to expect a country with resources like the Philippines to really adopt and pursue an “independent” policy.”

The Philippines under the Duterte administration, with pressing economic and insurgency problems, decided to adopt an independent, possibly a nonaligned, foreign policy, distancing from the United States. It was claimed that the change was necessary to promote the national interests of the Philippines and the Filipino people. Many now, however, consider the policy as not independent but leaning more to China. To be fair, it is really too much to expect a country with resources like the Philippines to really adopt and pursue an “independent” policy. Philippine government officials have been more ready to agree and favor Chinese activities in the Philippines. The significance of the ruling of the Permanent Court of Arbitration was underplayed. It was decided to suspend and terminate the Visiting Forces Agreement with the United States, but for some reason or another the intended suspension and termination was later reconsidered.

In all those times the Philippines was focused on solving more pressing problems, China was actively developing and enlarging the islands it claims, building communication and military facilities. The Philippines managed to reinforce its physical presence in the islands it claims. China did the same. It occupied Scarborough and repeatedly prevented Filipino fishermen from the areas it claims. The Philippines could only file diplomatic protests. It could not possibly do more. Military and economic powers, including the United States, only expressed, although repeatedly, their utmost concerns, encouraging the parties to go to the negotiating table. Nothing more effective and forceful was done. Their national interests were not sufficiently threatened.

“The Spratly, or rather more specifically the trade routes in the area, gained more attention from the United States and others affected by the Chinese activities there. The United States now demands that China conform to the decision of the PCA. The United States Defense Secretary declared that Chinese claims in South China Sea have no legal basis.”

With the outbreak of the coronavirus, the United States trade war with China, the peace and order troubles resulting from racism complaints, and the forthcoming presidential election, the United States have become more concerned and involved in the South China Sea. It has become more vocal in its support for the Philippines and the condemnation of Chinese activities in South China Sea. The Spratly, or rather more specifically the trade routes in the area, gained more attention from the United States and others affected by the Chinese activities there. The United States now demands that China conform to the decision of the PCA. The United States Defense Secretary declared that Chinese claims in South China Sea have no legal basis. Philippine government officials immediately praised the American declarations, with some even making statements that clearly contradicted what they have made before, all of which could only be seen as pandering with China. Opinions rapidly changed with the winds of power backing it up. These expressions of praise for the American statements do not, however, necessarily indicate a change in Philippine policy.

As to which direction the current situation concerning the islands in the area the Philippines now calls the West Philippine Sea will lead to will depend on how much each of the parties, including the United States and others supportive of the Philippine claim, give significance to the islands involved. How much they are willing to spend and how far they are able to advance what they seek to achieve will depend on how much they are willing to risk. Our leaders determine how significant those islands are to us. That significance will shift as our leaders see fit.

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Manuel B. Quintal, ESQ., practices law in New York since 1989. He is active in the community as a member, an officer or a legal adviser of several professional, business, and not-for-profit organizations. He was a columnist of  NewstarPhilippines, an English language weekly newspaper published in New York, from 2006-2009. He was Executive Editor of International Tribune, an English language weekly newspaper for the Asian community, based in New York, from 2010 to 2012.

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