CHINA VS PHILIPPINES WHO HAS A VALID CLAIM ON THE SPRATLYS THE ISLAND The Spratly Islands (Chinese name: Nansha islands, Vietnamese Name: Qun o Trng Sa, Filipino Name: Kapuluan ng Kalayaan) are a disputed group of more than 750 reefs, islets, atolls, cays, and islands in the South China Sea. The archipelago lies off the coasts of the Philippines, Malaysia (Sabah), and southern Vietnam. Named after the British explorer, Richard Spratly (c.e. 1806-1866) who sighted them in 1843, they contain less than 4 square kilometers (1.5 square miles) of land area spread over more than 425,000 square kilometers (164,000 square miles) of sea. The Spratlys are one of 3 archipelagos of the South China Sea which comprise more than 30,000 islands and reefs and which complicate governance and economics in that region of Southeast Asia. Such small and remote islands have little economic value in themselves but are important in establishing international boundaries. No native islanders inhabit the islands which offer rich fishing grounds and may contain significant oil and natural gas reserves. The seas around the Spratlys are known to mariners as the Dangerous Ground and are characterized by many low islands, sunken reefs, and atolls awash, with reefs often rising abruptly from ocean depths, all of which makes the area dangerous for navigation. About 45 islands are occupied by relatively small numbers of military forces from the People's Republic of China, Republic of China (Taiwan),Vietnam, the Philippines, and Malaysia. Brunei has also claimed an exclusive economic zone in the southeastern part of the Spratlys encompassing just one area of small islands on Louisa Reef. This has led to escalating tensions between numerous countries over the disputed status of the islands.
THE NINE DOTTED LINE CLAIM OF CHINA The nine-dotted line, U-shape line, or nine-dash refers to the demarcation line used by the governments of both the People's Republic of China (PRC) and the Republic of China (Taiwan) for their claims of part of the South China Sea. The nine-dotted line was originally an eleven-dotted-line first shown on a map published by the Kuomintang government of the Republic of China (19121949) in December 1947 to justify its claims in the South China Sea.
After the Communist Party of China took over mainland China and formed the People's Republic of China in 1949, the line was adopted and revised to nine as endorsed by Zhou Enlai. After evacuating to Taiwan, the Republic of China has continued its claims, and the nine-dotted line remains as the rationale for Taiwan's claims to the Spratly and Paracel Islands. The nine-dotted line has been used by China to show the maximum extent of its claim without indicating how the dots would be joined if it was continuous and how that would effect the extent of the area claimed by China. The Philippines, Vietnam, Malaysia, Brunei and Indonesia have all officially protested over the use of such a line. Immediately after China submitted a map to the UN including the 9-dotted lines territorial claim in the South China Sea on May 7, 2009, the Philippines lodged a diplomatic protest against China for claiming the whole of South China Sea illegally. Vietnam and Malaysia filed their joint protest a day after China submitted its 9-dash line map to the UN. Indonesia also registered its protest, even though it did not have a claim on the South China Sea.
THE WEIGHT OF CHINAS NINE DOTTED CLAIM It has been established that ancient relics of pottery, coins and sunken ships do not constitute ownership. There is no merit over the claim of China that they have been in possession and occupation of the island. While it can be proven that the relics belonged to ancient China, the owners can be disputed. As those relics were considered to be precious commodity for trade. They may also be loots from pirates whose ship sunk on the areas. South China Sea was never a territory under the Mongol Empire and any Chinese Dynasty. The Chinese claims that since the Yuan Dynasty of China several islands that may be labelled as Spratlys have been considered as Chinese territory. It was followed by the Ming dynasty and the Chinese voyage nine dotted map. Kublai Khans conquest eventually developed the silk route which greatly established the development of the succeeding dynasties. China claims that they discovered the Spratly islands as early as 200 B.C .However, their imperial references only show general descriptions and references of the islands. There was also mentioned of earlier maps but China does not hold any map indicating that the islands were their territories. This can be contributed to China as being a land based power. Spratlys, Paracels and Scarborough werent in Chinas Maps until much recently. The Cartographic records that the Chinese to be claiming that shows trading routes were navigational records and not maps. The official imperial maps of China showed that Hainan island as its outermost part of the territory. It was only in 1947 that the Spratlys, Paracel and Scarborough was pubished in Chinese textbooks. Nevertheless, earlier maps compiled from different countries indicated the islands as territory of the Las Islas Pilipinas known today as the Islands of the Philippines. The Chinas 9 dash claim is a Chinese Historical Revision. In 1947, China produce a map with 11 undefined dash lines which is the predecessor of todays 9 dash lines without any coordinates and claimed territory over all islands within the lines. The lines extended to the exclusive economic zones of different countries including the Philippines. It was declared illegal under UNCLOS [United Nations Convention on the Law of the Sea], as it extends beyond the 12 nautical mile territorial waters of China , a non archipelagic state. China justified its exaggerated claims based on ancient Chinese writings that allegedly mentioned the islands and thus arguing that they were there first. However, based on historical facts, the ancient Malayo-Polonesians, the descendant of the Philippinos, Malaysians, Bormeans and Indonesians discovered and fished in the islands first several millennia before the Chinese reached these waters. Therefore, Chinas claim over the Spratly islands does not hold water on the international plane. The evidences they presented were insufficient to substantiate their claim of territory. Also, the latter could be contradicted by other evidences like documents and official records of different countries, including the Philippines.
United Nations Convention on the Law of the Sea The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III), which took place between 1973 and 1982. The Law of the Sea Convention defines 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. The Convention, concluded in 1982, replaced four 1958 treaties. UNCLOS came into force in 1994, a year after Guyana became the 60th nation to sign the treaty. [1] As of August 2013, 165 countries and the European Union have joined in the Convention. However, it is uncertain as to what extent the Convention codifies customary international law. The convention set the limit of various areas, measured from a carefully defined baseline. (Normally, a sea baseline follows the low-water line, but when the coastline is deeply indented, has fringing islands or is highly unstable, straight baselines may be used.) The areas are as follows: Internal waters Covers all water and waterways on the landward side of the baseline. The coastal state is free to set laws, regulate use, and use any resource. Foreign vessels have no right of passage within internal waters. Territorial waters Out to 12 nautical miles (22 kilometres; 14 miles) from the baseline, the coastal state is free to set laws, regulate use, and use any resource. Vessels were given the right of innocent passage through any territorial waters, with strategic straits allowing the passage of military craft as transit passage, in that naval vessels are allowed to maintain postures that would be illegal in territorial waters. "Innocent passage" is defined by the convention as passing through waters in an expeditious and continuous manner, which is not "prejudicial to the peace, good order or the security" of the coastal state. Fishing, polluting, weapons practice, and spying are not "innocent", and submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Nations can also temporarily suspend innocent passage in specific areas of their territorial seas, if doing so is essential for the protection of its security. Archipelagic waters The convention set the definition of Archipelagic States in Part IV, which also defines how the state can draw its territorial borders. A baseline is drawn between the outermost points of the outermost islands, subject to these points being sufficiently close to one another. All waters inside this baseline are designated Archipelagic Waters. The state has full sovereignty over these waters (like internal waters), but foreign vessels have right of innocent passage through archipelagic waters (like territorial waters). Contiguous zone Beyond the 12-nautical-mile (22 km) limit, there is a further 12 nautical miles (22 km) from the territorial sea baseline limit, the 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. [5] This makes the contiguous zone a hot pursuit area. Exclusive economic zones (EEZs) These extend from the edge of the territorial sea out to 200 nautical miles (370 kilometres; 230 miles) from the baseline. Within this area, the coastal nation has sole exploitation rights over all natural resources. In casual use, 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. 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 4000 metres deep. Foreign nations have the freedom of navigation and overflight, subject to the regulation of the coastal states. Foreign states may also lay submarine pipes and cables. Continental shelf The continental shelf is defined as the natural prolongation of the land territory to the continental margins outer edge, or 200 nautical miles (370 km) from the coastal state's baseline, whichever is greater. A state's continental shelf may exceed 200 nautical miles (370 km) until the natural prolongation ends. However, it may never exceed 350 nautical miles (650 kilometres; 400 miles) from the baseline; or it may never exceed 100 nautical miles (190 kilometres; 120 miles) beyond the 2,500 meter isobath (the line connecting the depth of 2,500 meters). Coastal states have the right to harvest mineral and non-living material in the subsoil of its continental shelf, to the exclusion of others. Coastal states also have exclusive control over living resources "attached" to the continental shelf, but not to creatures living in the water column beyond the exclusive economic zone. Aside from its provisions defining ocean boundaries, the convention establishes general obligations for safeguarding the marine environment and protecting freedom of scientific research on the high seas, and also creates an innovative legal regime for controlling mineral resource exploitation in deep seabed areas beyond national jurisdiction, through an International Seabed Authority and the Common heritage of mankind principle.
THE PHILIPPINES CLAIM The Philippines claim over the Spratly is primarily based on article 76 of the UNCLOS. The concept of Philippine sovereignty over its continental shelf existed and is incorporated as early as the 1935 Philippine Constitution (amplified in the 1973 Philippine Constitution) and perpetuated in the 1987 Philippine Constitution. The terms sub-soil,seabed and other submarine areas over which the Philippines have sovereignty refers to its continental shelf and is a strong indication of the Philippine governments intention to protect its interest which would naturally include Spratly by virtue of its geology.
Rights conferred by UNCLOS to Coastal Sates There is a difference between claims based on sovereignty and claims based on Article 76 and 77. The first would confer to successful claimants sovereignty over the resources as well as on the air, water and subsoil of the area claimed. It gives full jurisdiction and control over the area. On the other hand, Article 77 confers only rights as provided by the UNCLOS which are as follows: 1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. 2. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources. No one may undertake these activities without the express consent of the coastal State. 3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional or on any express proclamation. 4. The natural resources referred to consist of the mineral and other non-living resources of the sea-bed and subsoil together with all the living organisms belonging to sedentary species. The rights above stated will accrue to the features directly connected and contained in the continental shelf. The sovereign rights for the purpose of exploring and exploiting the natural resources of its continental shelf granted above is now considered customary international law. Thus, to determine the extended continental shelf, one must first determine the archipelagic baseline.The territorial sea begins from the baseline up to 12 nautical miles seaward. The contiguous zone, however, is between 12 and 24 nautical miles from the baseline.Then the EEZ is determined by measuring 200 nautical miles from the baseline. The mandatory continental shelf lies below the EEZ consisting of the seabed and its subsoil.The extended continental shelf is then measured using Article 76 but only up to 350 nautical miles from the baseline as stated in Article 76. Essentially, the extended continental shelf may be boundbetween the EEZ and 350 nautical miles from the baseline of the coastal state. Spratly is outside the 200 nautical mile EEZ of the Philippines but is within the 350 nautical mile limit set by Article 76. As such, the Philippine claim on Spratly may easily be established through determining the outer limits of its extended continental shelf. The claim of the Philippines is sufficiently supported by the necessary geological and topological surveys done through remote sensing imagery and sea based survey. OTHER BASES The basis of the Philipppine claim is effective occupation of a territory not subject to the sovereignty of another state. The Japanese forces occupied the Spratly islands group during the Second World War. However under the San Francisco peace treaty of 1951, Japan formally renounced all the right and claim to the Spratlys. The San Francisco treaty or any other international agreement, however, did not designate any beneficiary state following the Japanese renunciation of right. Subsequently, the Spratlys became terra nullius and was occupied by the Philippines in the title of sovereignty. Philippine sovereignty was displayed by open and public occupation of a number of islands by stationing military forces, by organizing a local government unit, and by awarding petroleum drillings rights, among other political and administrative acts. In 1978, it confirmed its sovereign title by the promulgation of presidential decree of 1596, which declared the Kalayaan island group part of Philippine territory
Conclusion Therefore, the Spratly is undisputedly within the extended continental shelf of the Philippines located between its established EEZ and 350 nautical miles from EEZ. Based on the voluminous scientific studies in the South China Sea incorporating bathymetric, paleontologic and geophysical information the geology of the "Dangerous Grounds" or Spratly is the same with Palawan micro continental block. Thus, the Philippines has a valid claim over the Spratly Islands.
REFERENCES: http://en.wikipedia.org/wiki/Spratly_Islands http://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea Philippine Law Journal Vol. 83