ISLES OF CONTENTION: The Spratlys Controversy

Three papers presented at the roundtable discussion on “the Philippines’ Claim to the Spratlys” held at the UP Asian Center in February 1995 were published in the Foreign Relations Occasional Papers of the UP Center for Integrative and Development Studies (CIDS) in 1996. This discussion was organized by the Asian Center, CIDS, the UP Law Center and the Department of Political Science of the College of Social Sciences and Philosophy to shed light on the country’s claim to the Spratlys at the height of the hysterical newspaper headlines on China’s intrusion in the South China Sea group of islands.

Benito Lim’s paper gives an overview on the Spratlys controversy. The Chinese nationalist government was the first in the 20th century to claim complete sovereignty over the entire Spratlys archipelago, basing its claim first on discovery and continuous benefaction dating back to the first century BC. The People’s Republic of China’s first postwar claim was made in August 1951 three weeks before the conclusion of the San Francisco Peace Conference.

Lim says that Vietnam traces its discovery of the South China Sea island (Vietnam’s sovereignty over the Huong Sa and Truong Sa Archipelago) to the 17th century. The Philippine claim to the Spratlys started in early 1947, when then Foreign Affairs Secretary Carlos P. Garcia asked the allied forces to place the “New Southern Islands” under the Philippine jurisdiction for reasons of security as Japan used Itu Aba as a staging area to occupy the Philippines.

Lim notes that other disputes over the South China Sea concern Singapore and Malaysia which are both claiming sovereignty over Pisang Island and Pulau Batu Putih (“White Rock”) which are in Malacca and Singapore straits. Brunei is a Johnny-come lately claimant, although the island it is claiming is underwater most of the time.

As Lim observes, the Spratlys dispute became a common ASEAN issue when the Cambodian civil war subsided by 1988. Leaders of the Association of Southeast Asian Nations (ASEAN) have moved to internationalize the dispute to generate sympathy for the smaller claimant countries.

The claimants have used the following principles and international statutes as the bases of their claims: historic titles, discovery and subsequent occupation, and international agreements, including UNCLOS’s exclusive economic zone (EEZ).

China and Taiwan rely heavily on historic documents and international agreements, although lately China has aggressively occupied some of the unoccupied islands. Vietnam uses historic titles, international agreements and has also occupied 25 islands. The Philippines uses discovery and occupation although it has some problems using the EEZ. Malaysia and Brunei base their claims mainly on international agreements, particularly the UNCLOS’s EEZ.

Despite all the shrill noises emanating from the major claimants, Lim remarks that all of them have agreed to settle their disputes by peaceful means. Due to difficulties both bilateral and multilateral means of settlement appear impractical and unrealizable for now.

According to Lim some parties have suggested a third solution. First, all parties should set aside the issue of sovereignty, and second, the use of an alternative framework to resolve the problem. However, some political analysts have warned that this suggestion may have the effect of inviting other nations outside the region who might use alternative frameworks as bases for their claim.

The Chinese government has suggested that the sovereignty issue be shelved for now. Instead China has enjoined all the claimants to jointly develop and share the oceanic resources in order to promote economic development and social progress of those countries around the rim of the South China Sea. But the Chinese have yet to answer the nature, extent and manner of joint development. Lim argues that there is hardly any evidence of an approaching consensus among the other claimants to agree with the Chinese proposal.

Lim concludes that the Chinese proposal is a good beginning for confidence - building. Once the claimants come to the conclusion that cooperation and compromise are essential for a meaningful start, they may accept joint development ventures and much later, begin to talk about a just settlement.

The second paper by Armando Malay, Jr. presents the arguments for Vietnamese sovereignty over the Spratlys based on the official Vietnamese brief. These arguments include the Vietnamese people’s discovery of Truong Sa, which has for centuries been used by Vietnamese fishermen; state-organized protection and exploitation of maritime resources in the area as early as the 16th century; occupation of those islands starting in the 18th century; state-built temples and steles, and state-planted trees by the 19th century; the French colonial navy’s occupation of Truong Sa and other island chains in the early 1930s; the Bao Dai government’s declaration, at the 1951 San Francisco Conference, affirming Vietnam’s sovereignty over the Spratlys and Paracels; the replacement by the Saigon government of the departing French and its planting of landmarks on the disputed islands in 1956; the Saigon government’s integration of the Truong Sa archipelago into the province of Phuoc Thuy, also in 1956; and South Vietnamese authorities’ official protests between 1950 and 1975 over the countries’ “infringements on Vietnamese sovereignty” over Truong Sa.

Malay also mentioned that in May 1997 the Vietnamese government also published a seven-point statement defining the country’s territorial sea, contiguous zone, exclusive economic zone, and continental shelf. The statement made it clear that the Socialist Republic of Vietnam was laying claim on the island chains by stating that the official islands and archipelagos “forming an integral part of the Vietnamese territory.... have their own territorial seas, contiguous zones, exclusive economic zones, and continental shelves.”

Malay expected the impending admission of Vietnam to ASEAN to augur well for the Vietnamese claim. As part of the regional organization, Vietnam may, as a matter of principle, expect its neighbors’ moral and material support in any showdown with China over the islands. The ongoing Philippine-China dispute over the Mischief Reef can only be to Hanoi’s satisfaction, for it takes considerable politico-diplomatic pressure off the Vietnamese and makes possible a Philippine-Vietnamese united front within ASEAN.

The third paper by Edgardo E. Dagdag focuses on the Philippine national interest. It appears to him that there is a general consensus in the country’s national leadership to keep Kalayaan as part of Philippine territory because of its intrinsic strategic and economic value. Holding on to Kalayaan will allow the Philippines to have an advance monitoring outpost in the South China Sea that could help secure its western frontier from poachers, smugglers, and predatory countries. Leaving Kalayaan unmanned will render the Philippines vulnerable.

Dagdag identifies short-term options for the Philippines which include working for the withdrawal of Chinese troops and structures from Panganiban Reef (or Mischief Shoal) and for the return of pre-July 1992 status quo in the Spratlys through diplomatic means. If this does not yield the desired results the Philippines should take self-defense measures aimed at forcing the withdrawal of Chinese troops and structures at the Panganiban Reef and surrounding Kalayaan waters.

Dagdag describes five principal options for the Philippines, assuming that it could not influence China to return to the pre-July 1992 status. One option is to strengthen the capability of the Armed Forces of the Philippines, particularly the air and naval units, to monitor and protect the Kalayaan islets, reefs, and waters not held by foreign forces and ensure that these will not be occupied by other claimant forces. Another option is to submit the Panganiban Reef incidents and the entire Spratlys problem to the ASEAN for resolution in accordance with the spirit of the 1992 ASEAN Declaration on the South China Sea and the 1976 Treaty of Amity and Cooperation in Southeast Asia.

A third option is to submit the Panganiban incidents and the entire Spratlys problem to the United Nations and the International Court of Justice for resolution. The fourth option is to enter into a cooperative arrangement with China for the joint development and management of overlapping claims. Such formula could be adopted with other claimant counties. And the fifth option is for the Philippine government and other claimant countries to enter into a multilateral cooperative arrangement for joint development and management of the entire Spratlys.

Dagdag concludes that the status quo has not worked to the advantage of the Philippines insofar as protecting Kalayaan is concerned. It is necessary for the government to increase its military and politico-administrative presence in Kalayaan so that it could effectively monitor the area and institutionalize its presence. Similarly, it must endeavor to treat the Kalayaan issue more as a vital development imperative and as an opportunity for regional cooperation among claimant countries than as a flashpoint for regional instability.