You are on page 1of 9

NAOMI M.

DAGOY PUBLIC INTERNATIONAL LAW



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