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Territories claimed by the Philippines

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The Philippines has claimed many lands throughout its history. These include the Spratly
Islands, Sabah, Scarborough Shoal, Palmias or Miangas Island, the Sangir Islands, Orchid Island,
Marianas Islands and Caroline Islands.

Contents
 1 Main territories claimed
o 1.1 Spratly Islands
o 1.2 Sabah
o 1.3 Scarborough Shoal
o 1.4 Palmas or Miangas Island
 2 References
 3 Further reading

Main territories claimed

Spratly Islands

Main articles: Spratly Islands, Spratly Islands dispute, and Philippines and the Spratly Islands

The Philippines claims 52 features in the Spratly Island group. Among these, the Philippines was
only able to occupy 7 islands and 2 reefs. These include (Pagasa) (2nd largest), West York
(Likas) island (3rd largest), Northeast (Parola) cay (5th largest), Nanshan (Lawak) island, Loaita
(Kota) island, Flat (Spratly) (Patag) island, Lankiam (Panata) cay, Commodore (Rizal) reef,
Irving (Balagtas) reef and Second Thomas (Ayungin) reef. Other features claimed by the
Philippines are either occupied by Vietnam, China, Taiwan or Malaysia or unoccupied by any
other countries. Parts of the Spratly Islands group that are not claimed by the Philippines are
those that are near to Vietnam. The farthest feature that it claims is Ladd Reef which is nearer to
and occupied by Vietnam.

The Philippines established a municipality named Kalayaan under the province of Palawan for
all the features that it occupies Pag-asa island
Sabah

Main article: North Borneo dispute

(Left) The first concession treaty was signed by Sultan Abdul Momin of Brunei on 29 December 1877,
appointing Baron de Overbeck as the Maharaja Sabah, Rajah Gaya and Sandakan.[1]
(Right) The second concession treaty was signed by Sultan Jamal ul-Azam of Sulu on 22 January 1878,
also appointing Baron de Overbeck as Dato Bendahara and Raja Sandakan, approximately three weeks
after signature of the first treaty.[2]
Note: The Philippine government consider concession as "lease".

Map of the British North Borneo with the yellow area covered the Philippine claim to eastern Sabah,
presented by the Philippine Government to ICJ on June 25, 2001.[3]

Between 1658 and 1700s, the Sultanate of Sulu acquiring the eastern part of the territory of
northern Borneo after helping the Bruneian forces in settling a civil war. The Sulu Archipelago
then came under the control of Spanish, while the area in northern Borneo was administered by
the British. Under a series of agreements between the Sultanate of Brunei and Sulu, both the
sultans agreed to cede their control on western and eastern part of northern Borneo to the British
in which it became known as North Borneo.[1][2]

In a process of decolonisation since 1946, Great Britain included Sabah in the newly formed
Federation of Malaysia. The Philippines (who already achieved its independence from the United
States) under the administration of President Diosdado Macapagal however protested the
formation of Malaysia and filed claims to the whole territory of northern Borneo. Meanwhile,
during a meeting of Maphilindo, the Philippine government said that they had no objection to the
formation of Malaysia but said the Sultan of Sulu wanted the payment of 5,000 although the
British government never paid any compensation to the Sultanate.[4] The first Malaysian Prime
Minister at the time, Tunku Abdul Rahman said he would go back to Kuala Lumpur and get back
to them on the claim.[4]

The situation became worse under the administration of the then Philippine President Ferdinand
Marcos who then revive the claim and train a numbers of Moro fighters to reclaim the territory
under a secret mission called "Operation Merdeka". But upon the recruits realising their true
mission, most of them demanded to be return home as they did not want to kill their fellow
Muslim brothers in Sabah. But Marcos soldiers did not sent them back instead execute most of
the fighters in an event known as Jabidah massacre.[5] The tragedy has caused the South
Philippines insurgency to emerged and the claim have been escalate by other new claimants from
the defunct Sultanate of Sulu, mostly self-proclaim themselves as a new Sultan of Sulu with a
support from politicians in the Philippine central government to take Sabah as part of the
Philippines territory. Most new claimants and several Philippine politicians today using the
Malaysian lease payment of 5,000 as their main excuse to overtake the territory as well using it
as a reason on the International Court of Justice (ICJ).[4]

Scarborough Shoal

The Scarborough Shoal, more correctly described as a group of islands, atolls, and reefs than a
shoal, is located in the South China Sea. The nearest landmass is Palauig town, Zambales
province, Luzon Island, at 221 kilometers. It is about 123 miles west of but the Subic Bay.

Both the Philippines and the People's Republic of China claim it.

In April 2012, the Philippines accused Chinese boats of fishing illegally. The boats were asked to
leave, but China also claims the Scarborough Shoal.

The Philippines is asserting jurisdiction over the shoal based on the juridical criteria established
by public international law on the lawful methods for the acquisition of sovereignty. Among the
criteria (effective occupation, cession, prescription,conquest, and accretion), the Philippines said
that the country "exercised both effective occupation and effective jurisdiction over Bajo de
Masinloc since its independence." Thus, it claims to have erected flags in some islands and a
lighthouse which it reported to the International Maritime Organization. It also asserts that the
Philippine and US Naval Forces have used it as impact range and that its Department of
Environment and Natural Resources has conducted scientific, topographic and marine studies in
the shoal, while Filipino fishermen regularly use it as fishing ground and have always considered
it their own. Likewise, multiple engagements and arrests of Chinese fishermen were already
(Google archived news articles) made at the shoal by the Philippine Navy for using illegal
fishing methods and catching of endangered sea species.

The legal basis of the Philippine assertion is based on the international law on acquisition of
sovereignty. Thus, the Philippine government explains that its Exclusive Economic Zone (EEZ)
claim on the waters around Scarborough Shoal is different from the sovereignty exercised by the
Philippines in the shoal itself.
The Chinese basis for claim is that the shoal would have been first discovered by Chinese in the
13th century and historically used by Chinese fishermen. Although a claim to sovereignty would
require a deeper understanding then discovery and resource use.

Palmas or Miangas Island

Main article: Island of Palmas Case

It involved 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.

This case is one of the most highly influential precedents dealing with island territorial conflicts.

Palmas, also referred to as 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 when
the decision of the arbitrator was handed down. The island is located between Mindanao,
Philippines and the northernmost island, known as Nanusa, of what was the former Netherlands
East Indies. In 1898, Spain ceded the Philippines to the United States and Palmas sat 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 to resolve the dispute on January 23, 1925. The arbitrator in the case was Max Huber,
a Swiss national.

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

The arbitrator ruled in favor of the Netherlands' position and stated that the Netherlands held
actual title to Palmas:

For these reasons The Arbitrator in conformity with Article I of the Special Agreement of
January 23, 1925 DECIDES that : THE ISLAND OF PALMAS (or MIANGAS) forms in its
entirety a part of the Netherlands territory done at The Hague, this fourth day of April 1928 Max
Huber, Arbitrator Michiels van Verduynen, Secretary-General

In the first of the United States' two arguments, the United States argued that it held the island
because it had received actual title through legitimate treaties from the original "discoverer" of
the island, Spain. The United States argued that Spain acquired title to Palmas when Spain
discovered the island and the island was terra nullius. Spain's title to the island, because it was a
part of the Philippines, was then ceded to the United States in the Treaty of Paris (1898) after
Spain's defeat in the Spanish–American War. The arbitrator noted that no new international law
invalidated the legal transfer of territory via cession.

However, the arbitrator noted that Spain could not legally grant what it did not hold and the
Treaty of Paris could not grant to the United States Palmas if Spain had no actual title to it. The
arbitrator concluded that Spain held an inchoate title when Spain “discovered” Palmas. However,
for a sovereign to maintain its initial title via discovery, the arbitrator said that the discoverer had
to actually exercise authority, even if it were a simple an act as planting a flag on the beach. In
this case, Spain did not exercise authority over the island after making an initial claim after
discovery and so the United States' claim was based on relatively weak grounds.

The United States also argued that Palmas was United States territory because the island was
closer to the Philippines than to Indonesia, which was then held by the Netherlands East Indies.
The arbitrator said there was no positive international law which favored the United States'
approach of terra firma, where the nearest continent or island of considerable size gives title to
the land in dispute. The arbitrator held that mere proximity was not an adequate claim to land
noted that if the international community followed the proposed United States approach, it would
lead to arbitrary results.

The Netherlands' primary contention was that it held actual title because the Netherlands had
exercised authority on the island since 1677. The arbitrator noted that the United States had
failed to show documentation proving Spanish sovereignty on the island except those documents
that specifically mentioned the island's discovery. Additionally, there was no evidence that
Palmas was a part of the judicial or administrative organization of the Spanish government of the
Philippines. However, the Netherlands showed that the East India Company had negotiated
treaties with the local princes of the island since the 17th century and had exercised sovereignty,
including a requirement of Protestantism and the denial of other nationals on the island. The
arbitrator pointed out that if Spain had actually exercised authority, than there would have been
conflicts between the two countries but none are provided in the evidence.

Under the Palmas decision, three important rules for resolving island territorial disputes were
decided:

Firstly, title based on contiguity has no standing in international law. Secondly, title by discovery
is only an inchoate title. 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 is greater than a title based on mere discovery.

However, up to this day, several Philippine legislators claim that the island cannot be part of
Indonesia today because the ethnic group living in this island is far more related by language to
the Sarangani people of Mindanao than any ethnic group in Indonesia (e.g., Minahasa).[citation
needed]
However this is not entirely true,[according to whom?] since languages spoken in Miangas such as
Sangir and Talaud are spoken also in North Sulawesi province with significant numbers.[citation
needed]

Currently, the Philippine Government has no desire to contest the sovereignty of Indonesian
Government over Miangas Island and respect the Indonesian administration over the
Island.[vague][citation needed]

References
1.
 Rozan Yunos (21 September 2008). "How Brunei lost its northern province". The Brunei Times.
Retrieved 28 October 2013.
  Rozan Yunos (7 March 2013). "Sabah and the Sulu claims". The Brunei Times. Retrieved 20
September 2013.

  Mohamad, Kadir (2009). "Malaysia's territorial disputes – two cases at the ICJ : Batu Puteh, Middle
Rocks and South Ledge (Malaysia/Singapore), Ligitan and Sipadan [and the Sabah claim]
(Malaysia/Indonesia/Philippines)" (PDF). Institute of Diplomacy and Foreign Relations (IDFR) Ministry of
Foreign Affairs, Malaysia: 46. Retrieved May 16, 2014. Map of British North Borneo, highlighting in
yellow colour the area covered by the Philippine claim, presented to the Court by the Philippines during
the Oral Hearings at the ICJ on 25 June 2001

  "Why 'Sultan' is dreaming". Daily Express. 27 March 2013. Retrieved 27 March 2013.

 Paul F. Whitman (2002). "The Corregidor Massacre - 1968". Corregidor Historic Society. Archived from
the original on September 13, 2015. Retrieved 13 September 2015.

http://bsot1b.blogspot.com/2015/06/the-philippine-claim-over-spratly-group.html

Saturday, June 20, 2015

The Philippine Claim Over the Spratly Group of Islands: An Application of
Article 76 of the UNCLOS by Chimney M. Llanos
The Philippine Claim Over the Spratly Group of Islands: An Application of Article 76 of the UNCLOS*

“Now the earth was formless and empty, darkness was over the surface of the deep, and the Spirit of God was hovering over the
waters… And God said, ‘Let there be an expanse between the waters to separate water from water.’ So God made the expanse and
separated the water under the expanse from the water above it. And it was so.”
- Genesis 1:2-7

The Spratly group of islands (hereafter referred to as Spratly) of the South China Sea is a ‘tinder box’of international conflict in the
Asian region. An estimated 44 of the 51 small islands and reefs are claimed or occupied by the littoral states of Brunei, China,
Cambodia, Indonesia, Malaysia, Philippines, Taiwan, Thailand, and Vietnam. The vast natural resources contained in the area
consist primarily of oil, natural gas, and seafood. The dispute is further fuelled by the growing attempts of incursion by China in the
region, which is motivated by its expanding need to meet its energy demands. The overlapping sovereignty claims in Spratly have
resulted in several military incidents since 1974 and in several countries awarding foreign companies exploration rights in the same
area of the South China Sea. The foreboding diplomatic crisis is further emphasized by the diplomatic protest filed by the Philippines
against China in 1999 when the latter established military fortifications in Mischief Reef. In 1992, sovereignty and exploration
disputes were thought to be resolved with the drafting of the ASEAN declaration, which committed members to resolve disputes
peacefully and to consider joint exploration of the territory. Military aggression and exploration endeavors conducted by China since
1992, however, have brought into question the validity of the 1992 joint declaration and raises the question of what long-term,
peaceful solution could prevent the region from erupting into a continuum of military incidents over sovereignty rights to the natural
resource-rich Spratly Islands.

The problem that the Philippine government faces is establishing within the international community of States its rightful claim over
the islands of Spratly. While diplomatic attempts to assert Philippine sovereignty have been initiated as early as the 1970’s, it is only
recently upon ratification of the Philippines of the United Nations Convention on the Law of the Sea (hereinafter referred to as
“UNCLOS”) that an internationally recognized legal framework for resolving the competing claims has buoyed the Philippines claim
to new heights.

With the force of customary law, Article 76 of UNCLOS has shifted the basis of the Philippine claim on Spratly from historical
evidence to empirical scientific foundations. As the islands in Spratly are small in size and cannot support economic life of their own,
and worse, many are reefs and other features that are not above water all the time, they are unlikely to be conferred continental
shelf or Exclusive Economic Zone status.

The Philippine’s claim is based mainly on Article 76 of the UNCLOS as it provides the framework for establishing the rights granted
in Article 77 to littoral states affected by the controversy. UNCLOS compartmentalized the ‘common heritage of man’ into various
maritime zones consisting of the territorial sea, contiguous zone, exclusive economic zone, and the high seas.

Due to the highly technical nature of the provisions of UNCLOS, the paper will focus on the legal regime of the extended continental
shelf and will briefly discuss the other maritime zone regimes to the extent necessary in understanding the application of Article 76
of UNCLOS. Furthermore, while most literature on the subject matter of the Spratly conflict advocates diplomatic solutions to be
adopted by the littoral states, the paper will limit its discussions to the legality of the Philippines claim. While a diplomatic approach
to a geopolitical conflict may ultimately be resorted to, the interests of the Philippines will be best served by making its legal position
the bedrock for any diplomatic solution or future international arbitration.

While there have been several scientific research and political papers written on the Philippine claim on Spratly, there has been a
dearth of research work on the legal aspect of the claim; the least of which is the availability of legal opinions on the application of
Article 76 as the basis of the claim.

The paper will also discuss the other bases for the claim of the Philippines namely: discovery, proximity, and national security. The
merits and weaknesses of these other bases for the Philippine claim will be discussed in order to provide a contrast with Article 76.

Finally, the paper will make recommendations in the area of legislation and executive actions required to establish the Philippine
claim on Spratly based on Article 76.

It is said that the history of the sea has been dominated by a central and persistent theme: the competition between the exercise of
governmental authority over the sea and the idea of the freedom of the seas. This is the balance that UNCLOS is envisioned to
maintain. Having been in effect for more than two decades, the UNCLOS now encompasses the normative law that governs
maritime disputes between States. Among its ground breaking features is its compartmentalization of the various maritime zones
into cohesive legal regimes. As it applies to the Spratly, the legal regime of the continental shelf embodied in Articles 76 to 84
provides the answer in resolving the contending sovereignty claims over it.

In order to facilitate the resolution of the conflicting claims, the UNCLOS has established the Commission on the Limits of the
Continental Shelf (CLCS). As a pre-requisite to the granting of the claim, each coastal state must submit to the CLCS the necessary
scientific information gathered according to the guidelines set by Article 76 and its annexes. The deadline for the submission has
been set to May 2009. However, the Philippines is lagging behind with the other littoral claimants in finalizing, solidifying, and
articulating its legal claim to the Spratly.
At least 6 countries have set up military installations in the various islands of the Spratly. The escalating tension in the region is
brought about by the absence of any formal or internationally recognized adjudication of the claims. As such, claims were based on
various pseudo norms and principles such as discovery, proximity, and national security.

While most of the claimants have relied on historical precedents to bolster their claims, Article 76, which covers the definition of the
outer limits of the continental shelf of a coastal state, provides the Philippines with the strongest scientific and legal basis for its
claim and Article 77 provides it patent rights over the Spratly. The problem before us is how to use Article 76 of the UNCLOS in
winning the claim over the Spratly.

United Nations Convention On The Law Of The Sea

Public international law regulates the relations among the States, through treaties and customary norms. The international law of the
sea is one of the key areas of public international law and the UNCLOS is its cornerstone.

After 14 years of negotiations to which more than 150 countries representing all regions of the world participated, UNCLOS was
finally concluded on 10 December 1982 in Montego Bay, Jamaica. It is commonly referred to as a “Constitution for the Oceans,” as
it addresses every aspect of the uses and resources of the sea. It represents one of the most complex and innovative efforts to
codify international law since World War II. UNCLOS comprises 320 articles with 9 highly complex annexes and a number of
Conference Resolutions. It entered into force only in 16 November 1994, since the United States and other industrialized countries
expressed objections on Part XI of the UNCLOS, relating to the deep seabed mining regime. In order to resolve that impasse, in the
1990’s, the United Nations Secretary General sponsored a series of consultations that led to the adoption of the 1994 “Agreement
relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea” where State parties undertook to
implement Part XI of the Convention in accordance with the provisions of the agreement. The adoption of the agreement made
possible the entry into force of the Convention.

UNCLOS represents a commitment of the international community to the rule of law in the conduct of maritime affairs. It is a
response to the need expressed by many States to elaborate a new and comprehensive regime for the law of the sea as well as an
effort to achieve a “just and equitable international economic order”. Having been ratified by 152 States (as of December 1,
2006), its universality is supposed to greatly increase order and predictability, narrow the scopes of disputes to more manageable
proportions and provide the legal means to resolve them. It is supposed to bring considerable stability to State relations with respect
to ocean affairs and the law of the sea. In short, the universality of UNCLOS should help foster a stable regime required for effective
ocean governance to promote peace and security, equity, and sustainable development.

The drafters of UNCLOS recognized that all problems concerning oceans are closely related and should be dealt with in a cohesive
and holistic manner. UNCLOS, therefore, deals with (i) limits and legal regimes of the various maritime zones (including the
continental shelf); (ii) rights of navigation; (iii) peace and security; (iv) conservation and management of living and marine resources;
(v) protection and preservation of the marine environment; (vi) scientific research; (vii) activities on the seabed beyond the limits of
national jurisdiction; and (viii) the settlement of disputes. In addition, UNCLOS established three bodies: the Commission on the
Limits of the Continental Shelf (hereinafter referred to as “CLCS”), the International Seabed Authority (hereinafter referred to as
“ISA”), and the International Tribunal for the Law of the Sea (hereinafter referred to as “ITLOS”).

UNCLOS is one of the most important and most widely ratified multilateral treaties. As a treaty, UNCLOS has often been referred to
as a “package deal” because of the circumstances in which it was negotiated, including the many different issues covered, as well
as the conflicting interests cutting across traditional political and regional alignments that it sought to balance in light of the great
number of States that participated. These participating States are bound by the rights and obligations enunciated in the UNCLOS,
and must be performed by them in good faith. Article 300, Part XVI of the UNCLOS provides:

States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and
freedoms recognized in this Convention in a manner, which would not constitute an abuse of right.

Moreover, UNCLOS, with the exception of Part XI, is generally considered to represent a codification of customary international
law and its progressive development. Since the negotiations proceeded on the basis of consensus, it was much easier during the
twelve years before UNCLOS entered into force for most of its provisions to become accepted as representing customary law.

Customary international law, as described by the Statute of the International Court of Justice is “a general practice accepted as
law.” The existence of a rule of customary international law requires the presence of two elements, namely State practice (usus)
and a belief that such practice is required, prohibited, or allowed, depending on the nature of the rule, as a matter of law (opinio juris
sive necessitates). Customary international law is therefore obligatory, and is binding on all States.[35] As most provisions of
UNCLOS, specially the most important provisions, are codifications of customary international law they should be binding on all
States, including the non-parties to it.

The Potential Of Spratly

The South China Sea is defined by the International Hydrographic Bureau as the body of water stretching in a Southwest to
Northeast direction, whose southern border is 3 degrees South latitude between South Sumatra and Kalimantan (Karimata Straits),
and whose northern border is the Strait of Taiwan from the northern tip of Taiwan to the Fukien coast of China. It encompasses a
portion of the Pacific Ocean stretching roughly from Singapore and the Strait of Malacca in the southwest, to the Strait of Taiwan
(between Taiwan and China) in the northeast. The area includes more than 200 small islands, rocks, and reefs, with the majority
located in the Paracel and Spratly Island chains. The Spratlys links the Pacific Ocean and the Indian Ocean. Despite the fact that
the archipelago is spread over 160,000 to 180,000 square kilometers of sea zone, the total landmass of the Spratly Islands total
land area of 10 square kilometers only. All its islands are coral, low and small, about 5 to 6 meters above water.

The land is not arable, does not support permanent crops, and has no meadows, pastures or forests. Many of these islands are
partially submerged islets, rocks, and reefs that are little more than shipping hazards not suitable for habitation. The Spratly Islands
have not been occupied by humans until recently. Countries with territorial claims use military means –airstrips and armed forces —
to reinforce their claims. The islands are important, however, for strategic and political reasons, because ownership claims to them
are used to bolster claims to the surrounding sea and its resources.

The South China Sea is rich in natural resources such as oil and natural gas. One study conducted by China estimated oil reserves
in the South China Sea to be larger than Kuwait’s present reserves. Oil and natural gas reserves in the Spratly region are estimated
at 17.7 billion tons; Kuwait’s reserves amount to 13 billion tons. The Spratly reserves place it as the fourth largest reserve bed
worldwide. These resources have garnered attention throughout the Asia-Pacific region. East Asia’s economic growth rates had
been among the highest in the world and this economic growth will be accompanied by an increasing demand for energy. Over the
next 20 years, oil consumption among developing Asian countries is expected to rise by 3.0% annually on average, with more than
one-third of this increase coming from China alone. If this growth rate is maintained, oil demand for these nations will reach 33.6
million barrels per day by 2025.

Almost all of this additional Asian oil demand, as well as Japan’s oil needs, will need to be imported from the Middle East and Africa,
and to pass through the strategic Strait of Malacca into the South China Sea. Countries in the Asia-Pacific region depend on
seaborne trade to fuel their economic growth, and this has led to the sea’s transformation into one of the world’s busiest shipping
lanes. In addition, the South China Sea region contains oil and gas resources strategically located near large energy-consuming
countries.

Over half of the world’s merchant fleet sails through the South China Sea every year. The economic potential and geopolitical
importance of the South China Sea region has resulted in jockeying between the surrounding nations to claim this sea and its
resources for themselves.

The History Of The Philippine Territory And Philippine Claim to The Spratly

Article III of the Treaty of Paris entered into by Spain and the United States on December 10, 1898 principally defined the territorial
limits of the Philippines. The treaty sets forth in exact metes and bounds the territory of the Philippines taking into consideration the
unity of land and water that inheres in the concept of an archipelago. The subsequent Constitutions of the Philippines have adapted
the historical and political boundaries of the Philippines as set in the Treaty of Paris. As shown in Figure 1.0, Spratly is not included
within the political boundaries of the Philippines set forth in the Treaty of Paris.

Evolving Boundaries of the Philippine Territory

During World War II, Japan occupied both the Paracels and Spratlys Islands in 1939, shortly after they controlled Hainan Island. The
Japanese used Itu Aba, the largest island in the Spratly, as a submarine base and a springboard for its invasion of the
Philippines. In 1947, a year after gaining independence, the Philippine Secretary of Foreign Affairs called for the territory occupied
by Japan during the World War II to be awarded to the Philippines. On 7 April 1949, the Chinese Republican Legation in Manila
informed the Philippine government that the Chinese were garrisoning Itu Aba in an effort to block the traffic of arms through Hainan
to Communist forces. However, the Philippine government continued to express concern and discussed inducing Filipinos to settle
in the Spratly islands. In the same month, the Philippines sent its navy to explore the Spratlys. An article published in Manila Bulletin
on 15 May 1950 said that the Philippine government should occupy the Spratly Islands together with the United States because it
was closer to Palawan compared to China and Vietnam. On May 17, President Quirino of the Philippines said that if the Chinese
Kuomingtang (Nationalist Party) troops really occupied the Spratlys, then the Philippines did not need to occupy them. However, if
the islands fell into the communist enemy’s hands, Philippine security is threatened. It was then said that the Spratlys should belong
to the nearest country according to international law – which is the Philippines. The Philippines did not make a claim to the islands
during the 1951 Treaty of San Francisco. However, the Philippines interpreted the Japanese renunciation of the Spratly islands in
the resulting treaty as to transforming the area into res nullius and making it open to acquisition.

In 1956, Tomas Cloma together with his brothers and 40 crewmen explored the Spratly and claimed to have “discovered” and
occupied 53 islands and reefs of the Spratly. They proclaimed “formal ownership” over them and renamed these islands and reefs
the Kalayaan (Freedomland) Island Group. In October 1956 Cloma traveled to New York to plead his case before the United
Nations and the Philippines had troops posted on three islands by 1968 on the premise of protecting Kalayaan citizens.

In early July 1971, the Philippine government alleged that the Taiwanese troops on the Itu Aba Island “fired on a boat carrying a
Philippine congressman”. After this the Philippine government announced on 10 July 1971 that “it had sent a diplomatic note to
Taipei asking that the Chinese garrison be withdrawn from Itu Aba”. The diplomatic note states: (1) The Philippines has legal title to
the 53 islands and reefs once occupied by Tomas Cloma because the area was terra nullius at the time of its occupation and was
“acquired according to the modes of acquisition recognized under international law, among which are occupation and effective
administration”; (2) the presence of the Chinese forces in Itu Aba constituted a threat to the security of the Philippines; (3) Chinese
occupation of some islands in Spratly group constituted a de facto trusteeship on behalf of the World War II allies which precluded
the garrisoning of the islands without the allies’ consent; and (4) the Spratly group is within the archipelagic territory of the
Philippines. Meanwhile, the Philippines sent its navy to occupy Thitu Island and Nanshan Island.

In April 1972, the Philippine government incorporated the “Kalayaan” group into Palawan Province as a municipality and was
administered as a single “poblacion” (township), with Tomas Cloma as the town council Chairman.

In February 1974, the Philippine government stated that the Philippine forces had occupied five islets in the Spratlys. It justified its
occupation of the Spratly Islands as “the strategic importance of the Kalayaan area to the Philippine security”.

By 1978, the Philippines occupied two more islands; later, it further occupied Siling Jiao (Commodore Reef); in 1980, it occupied
Liyue Tan (Reed Bank). On June 11, 1978, Filipino president Marcos signed Presidential Decree 1596 which claimed the Kalayaan
group. The 1978 decree omitted Spratly Island and included Amboyna Cay which was not claimed by Cloma. It also said that “some
countries claimed some parts of this area but they had given up and thus the claims are not valid anymore…” On 17 July 1978,
Presidential Decree (PD) 1599 was issued, proclaiming that the Kalayaan Group was within the Philippine EEZ (Exclusive Economic
Zone). More recently in 2005, a cellular phone base station owned by Smart Communications was erected on Pag-asa Island.

The Overlapping Sovereignty Claims

Centuries-old evidence of discovery are used as basis to lay claim to title to the Spratly islands. Claims are also based on
occupation, and rights over continental shelf delimitation as defined under the UNCLOS. However, sovereignty over the Spratlys
has been fiercely contested only since World War II, with the withdrawal of Japanese and French forces that had occupied some
islands. Only China, Taiwan, and Vietnam claim all of the Spratly islands.

Conflicting Claims Over Spratly Islands

China’s assertions of sovereignty in the South China Sea rest on historical claims of discovery and occupation. The Chinese case is
well documented, going back to references made in Chou Ch’u-fei’s Ling-Wai- tai-ta during the Sung dynasty (12th century) and in
the records of Chinese navigators during the Qing dynasty (18th century). In 1992, China passed a special territorial sea and
contiguous zone act to legalize its claims to the Spratlys. Article 2 of this legislation specifically identifies both the Paracels and
Spratly archipelagos as Chinese territory. To uphold this claim to title, since 1988 China has deployed some 260 marines in
garrisons on seven of the Spratly islets.

On the other hand, Taiwan’s claims, which mirror that of China’s, are based on its longstanding historic ties to the islands. Taiwan
was the first government to establish a physical presence in Spratly following the Japanese departure after World War II. Taiwan
announced its claim to the atoll in 1947 and has occupied the largest island of the Spratlys, Itu Aba, constantly since 1956. From the
mid-1950s through the late 1980s, Taiwan maintained a force of some 500 soldiers on Itu Aba, although by 1999 the number of
troops had been reduced to about 110.

The legal grounds for Vietnam’s claims to the South China Sea islands flow from historic activities during the Nguyen dynasty (17th–
19th centuries). Maps and other supporting historical evidence for Vietnam’s claims were compiled and set out by the government in
two white papers, Vietnam’s Sovereignty Over the Hoang Sa and Trung Sa Archipelagoes, issued in 1979 and 1982,
respectively. Vietnam asserts that “it has maintained effective occupation of the two archipelagos (Paracel and Spratly islands) at
least since the 17thcentury when they were not under the sovereignty of any country and the Vietnamese State has exercised
effectively, continuously and peacefully its sovereignity over the two archipelagos until the time when they were invaded by the
Chinese armed forces.”
Vietnam also bases its claims to sovereignty over the Spratlys by right of cession from a French claim to the islands first made in
1933. In any event, Vietnam moved in 1975 to secure its claim to possession of the Spratlys when it occupied thirteen islands of the
group. In September 1989, Vietnam occupied three more islets, and has since taken at least nine additional atolls. By 1999,
Vietnam had stationed 600 troops on at least twenty-seven Spratly land formations.

Malaysia has claimed sovereignty over twelve islands in the Spratly group, basing its claims to certain islands on ocean law
principles associated with prolongation of a continental shelf seaward based on UNCLOS. Malaysia is the most recent claimant to
occupy part of the Spratlys militarily. In late 1977, Malay troops landed on Swallow Reef. Since then, about seventy soldiers have
been stationed on three of the twelve islets claimed by Malaysia.

Brunei has only one claim to the Spratly group – the naturally submerged formation known as Louisa Reef. The legal premise for
substantiating Brunei’s claim flows from continental shelf provisions in the UNCLOS. Brunei remains the only claimant without a
military presence in the Spratly Islands. Even so, Louisa Reef is also claimed by Malaysia, which took possession of it in 1984.

Indonesia is not a claimant to any of the islands or rocks in the Spratlys. However, the Chinese and Taiwanese claims, depending
on their nature and interpretation, could also intrude upon the Indonesian EEZ and continental shelf as defined under UNCLOS and
as demarcated in the Indonesian-Malaysian Agreement of 1969.

In sum, the Spratlys situation remains complicated by competing claims and military clashes. In March 2005, a memorandum of
understanding was signed by China, the Philippines, and Vietnam to resolve the energy exploration issues among the three
countries in the South China Sea. The country agreed to do seismic surveys in the area which includes the Spratly Islands, without
giving up their respective territorial claims. The Philippine National Oil Company, China National Offshore Oil Corporation, and
PetroVietnam agreed to design seismic oil exploration for a three-year program covering a 55,000 square mile area. The three
companies are sharing the $15 Million project cost. The Chinese seismic vessel Nanhal is gathering the data. The seismic data is
sent to Vietnam for processing. Then the data is analyzed by experts in the Philippines.

Article 76 as Basis for the Philippine Claim on Spratly

As man’s technology enabled him to exploit the historically inaccessible seabed and subsoil lying beyond the territorial sea, so did
the interests of States to appropriate for themselves these areas rich with minerals and other resources. The need to regulate this
once invisible realm of humanity can be traced back to the “continental shelf” doctrine proclaimed by U.S. President Harry Truman in
1945, where he pronounced the US government’s claim of sovereignty to the natural resources and sea bed of the continental shelf
beneath the high sea but contiguous to the coast of the United Sates.

Truman’s proclamation started the flow of customary international law on the continental shelf that was officially recognized by the
international community in the 1958 Convention on the continental shelf and in the 1969 North Sea Continental Shelf Cases as well
as the 1978 Aegean Sea Continental Shelf Cases all decided by the International Court of Justice (ICJ). In fact, the ICJ had the
occasion to assert the customary nature of the doctrines governing the continental shelf. The ICJ stated:

For to become binding, a rule or principle of international law need not pass the test of universal acceptance. This is reflected in
several statements of the Court, e.g.: ‘generally … adopted in the practice of States’ (Fisheries, Judgment, I.C.J. Reports 1951, p.
128). Not all States have, as I indicated earlier in a different context, an opportunity or possibility of applying a given rule. The
evidence should be sought in the behavior of a great number of States, possibly the majority of States, in any case the great
majority of the interested States.
Hence, Articles 76 to 84 of UNCLOS embodied the customary international law pertinent to the determination of the validity of
States claims over its continental shelf. The pertinent provisions of UNCLOS now prevail over the 1958 Convention on the
Continental Shelf.

The Legal Regimes Of UNCLOS

One of the unique features of UNCLOS is the introduction of several legal regimes corresponding to each maritime zone that
determine the jurisdictional and sovereignty rights of a coastal state. These legal regimes are (i) internal waters (article 8); (ii)
territorial sea (articles 2-32); (iii) contiguous zone (articles 33 and 303); (iv) exclusive economic zone (EEZ) (articles 55-75); and (v)
continental shelf (articles 76- 84). Beyond the maritime zones are the (i) high seas (articles 86-120) and (ii) international seabed
area (articles 133-191).

The Maritime Regimes of UNCLOS

Defining The Baseline

The baseline is a line drawn by joining a set of points called basepoints which represent areas exposed during low-low tide
conditions. It is a prescribed line where all maritime zones will be measured seaward of the coastal state. UNCLOS defines three
principal types of baselines from which the coastal state can use to define its coastal limits to its maximum advantage, whether
using only one type or combination of the following: Normal baseline (Article 5), Straight baselines (Article 7) and Archipelagic
baseline (Article 47). After defining the baseline, other maritime zones can now be defined as follows: territorial sea (12nautical
miles or “nm”) (Article 3), contiguous zone (24nm) (Article 33), exclusive economic zone (200nm) (Article 57), mandatory continental
shelf (200nm) (Article 76), and the extended continental shelf (beyond 200nm) (Article 76).

C. The Continental Shelf Regime

Article 76(1) of UNCLOS defines the continental shelf of a coastal state as comprised of the seabed and subsoil of the submarine
areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental
margin or a distance of 200 nautical miles from the archipelagic base lines. All maritime zones are defined by breadth criteria as
shown in Figure 4.0. The continental shelf regime is defined and contained in Part VI (Articles 76 to 84) and Annex II of UNCLOS
and it prevails over the 1958 Convention on the Continental Shelf.

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 government’s intention to protect its interest, which would naturally include Spratly by virtue of its
geology.

Rights Conferred By UNCLOS To Coastal States

There is a difference between claims based on sovereignty and claims based on Article 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 in this Part consist of the mineral and other non-living resources of the sea-bed and subsoil
together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are
immobile on or under the sea-bed or are unable to move except in constant physical contact with the sea-bed or the subsoil.

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.

E. The Determination Of The Extended Continental Shelf

As discussed above, Article 76 deals with the operational aspects of the delineation of the continental shelf’s outer limits beyond the
200 nautical miles from the baseline from which the breadth of the territorial sea is measured. The continental shelf of a coastal
State contains the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural
prolongation of its land territory to the outer edge of the continental margin or to a distance of 200 nautical miles from the baselines
from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that
distance. After determining the delineation of the Philippine’s continental shelf, the outer limits of the extended continental shelf must
be ascertained. UNCLOS provided for the means to approximate the outer limits of the extended shelf by using the following
formula:

(a) For the purposes of this Convention, the coastal State shall establish the outer edge of the continental margin wherever the
margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either:

(i) a line delineated in accordance with paragraph 7 by reference to the outermost fixed points at each of which the thickness of
sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or

(ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of
the continental slope.

(b) In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum
change in the gradient at its base.

The concept of the extended continental shelf was brought about by the differences in topologies of various continental shelves.
Figure 5.0 below shows the difference between the mandatory continental shelf and the extended continental shelf.

Types of Continental Shelves

The outer limits of the extended shelf established above are subject to the following conditions:

The fixed points comprising the line of the outer limits of the continental shelf on the sea-bed, drawn in accordance with paragraph 4
(a)(i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured
or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres.

The outer limits of the extended shelf are further limited by:
Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350
nautical miles from the baselines from which the breadth of the territorial sea is measured.

In sum, to locate 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(4, 5) but
only up to 350 nautical miles from the baseline as stated in Article 76(6). Essentially, the extended continental shelf may be found
between the EEZ and 350 nautical miles from the baseline of the coastal state.

Application To The Philippine Claim On Spratly

Spratly is outside the 200 nautical mile EEZ of the Philippines but is within the 350 nautical mile limit set by Article 76 (6). 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. The bathymetric map, infra shows exactly where the Spratly is and how it straddles the
continental shelf of the Philippines as depicted by the light blue color on the map.

The Extended Continental Shelf

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
microcontinental block.

Figure 7.0 infra, shows the evolution of the continental shelf of the South China Sea and how the shelf was formed. At “d3” is where
the current geological formation of Spratly can be found on top of the Philippine continental shelf.

Several well data (Figure 8.0) indicate that Spratly (KIG) is underlain by similar lithologic formations, therefore, it can be argued that
Spratly is the submerged natural extension of the Palawan landmass.

Procedure For Filing The Philippine Claim With UNCLOS

The Philippines must submit to the Secretary General of the United Nations the charts and otherrelevant information, including
geodetic data, permanently describing the outer limits of its continental shelf. The Philippines is also required to provide to the
Commission on the Limits of the Continental Shelf (CLCS) all information on the limits of the continental shelf beyond the 200
nautical miles from the baseline from which the breadth of the territorial sea is measured and theCLS will make recommendations to
the coastal States on matters related to the establishment of the outer limits of the continental shelf. Where a coastal State intends
to establish the outer limits of its continental shelf beyond 200 nautical miles from the baselines from which the breadth of the
territorial sea is measured, it shall submit particulars of such limits to the Commission on the Limits of the Continental Shelf (CLCS)
along with supporting scientific and technical data as soon as possible.
source: http://plj.upd.edu.ph/the-philippine-claim-over-the-spratly-group-of-islands-an-applications-of-article-76-of-the-unclos/

http://www.e-ir.info/2015/07/19/the-spratly-islands-dispute-a-discourse-analysis/

The Spratly Islands Dispute – A Discourse

Analysis
Lin Alexandra Mortensgaard, Jul 19 2015, 15220 views

This content was written by a student and assessed as part of a university degree. E-IR publishes student
essays & dissertations to allow our readers to broaden their understanding of what is possible when
answering similar questions in their own studies.

The Spratly Islands are located in the so-called South China Sea and consist of a number of small
islands, reefs, atolls and rocks. These islands have been disputed with varying degrees of
intensity for more than 50 years. They continue to be a point of dispute between six different
states to this day. The Spratly Islands are claimed in whole or part by The People’s Republic of
China (PRC), The Republic of China (ROC/Taiwan), The Philippines, Vietnam, Malaysia and
Brunei.

This essay proceeds in a number of sections. Firstly, the dispute is introduced in detail and in
combination with this, the existing research is reviewed and evaluated. This will expose the
limited theoretical approaches that have so far been taken in analyzing the dispute. As is shown,
the Spratly Islands dispute has been viewed through mostly realist and structural realist lenses
and to a lesser extent through liberal ones. This essay argues that taking a constructivist approach
through discourse analysis as described by Lene Hansen[1] will highlight essential and
previously neglected dynamics of the dispute. The second section of the essay therefore applies
discourse analysis to the dispute. This section first introduces Lene Hansen’s methodology and
then goes on to apply it to the specific case. Due to the relative brevity of the essay, the analysis
will focus on the discourses of two of the claimant states, namely the PRC and the Philippines.
The analysis looks at the discourses of the two states towards the dispute in general, but also at
the discourses used specifically towards the other state. This will highlight major Chinese and
Filipino attitudes and identities in the dispute and will thus examine how these discourses
construct and reproduce the dispute. Finally, the conclusion sums up the findings of the essay by
explaining how the two states’ conflicting perceptions and identities serve to reproduce the
conflict in irreconcilable terms. Note that the Spratly Islands issue is generally conceptualized as
a dispute rather than a conflict due to the overall absence of violent confrontation and the low-
intensity character of the dispute.

Background and Literature Review

The South China Sea, where the Spratly Islands are found, borders many states and is very
tellingly also known as the West Philippine Sea and the East Sea in Vietnam[2]. There is some
confusion as to the number of islands, reefs, rocks and atolls that the Spratly Islands consist of.
Some academics claim up to 230[3] while others speak of 150 “named landforms”[4] and some
only include 40-50 islands and reefs[5]. Even the CIA seems uncertain in its estimate when
writing that the Spratlys consist of “100 or so islets”[6].

Three of the claimant states, Vietnam, the ROC and the PRC, base their claims on historical
‘facts’ while the three other states, the Philippines, Brunei and Malaysia, refer mainly to
international law and conventions when justifying their claims. This essay focuses on the PRC
and the Philippines and the bases of their claims are therefore examined in detail below.[7]

The PRC bases its claims on historical evidence of Chinese presence on some of the islands.
These claims go back to the Xia Dynasty (21st-16th centuries B.C.). The PRC claims that they
were the first to “name, map, study, use and patrol the South China Sea and the islands
therein”.[8] The PRC refers to different types of evidence of occupancy such as old maps
depicting the Spratly Islands, the discovery of old Chinese coins on the islands and the referral to
the islands in ancient Chinese history books.[9] Thus according to the PRC argument, the
Spratlys have not been terra nullius[10] for about 2000 years at least. The PRC today occupies 9
reefs, however, claim all of the Spratly Islands.

In contrast to this, the Philippines bases its claims mainly on international law through the United
Nations Convention on the Law of the Sea (UNCLOS). The initial claim of the Philippines stems
from the ‘discovery’ of some of the islands by a Filipino citizen named Thomas Cloma in 1956.
The 1978 formal Filipino claim, which today comprises 7 islands and 3 reefs, is thus based on
two main principals. First, the Philippines asserts that the islands that it claims (also known as
the Kalayaan Group) were terra nullius prior to Cloma’s discovery and that his discovery
therefore put them under Filipino sovereignty. Secondly, and more importantly, the Philippines
refers to UNCLOS’ concept of a 200 nautical mile Exclusive Economic Zone (EEZ) when
justifying its claims. Most of the Filipino-claimed islands and reefs thus fall within the
Philippines’ EEZ.[11]

One major definitional issue impacts the dispute; what constitutes and island? According to
UNCLOS, an island has an EEZ of its own, while rocks or reefs do not. UNCLOS’ Article 121
defines an island as “a naturally formed area of land, surrounded by water, which is above water
at high tide. (…)Rocks which cannot sustain human habitation or economic life of their own
shall have no exclusive economic zone or continental shelf.”[12] The PRC claims that all of its
occupied features are islands with individual EEZs, despite not all of them being naturally above
sea-level at high tide.[13]

But why are a number a tiny reefs and islands disputed by six different nations? The existing
literature tends to focus on two main reasons for the dispute: resources and strategic concerns.
Most existing explanations apply realism to describe and explain the dispute. Realism assumes
that the world is anarchic and made up of sovereign states that have national interests that they
must protect through mechanisms of self-help.[14]
One such national interest that much of the literature focuses on is possible oil or gas reserves
underneath the Spratlys.[15] The U.S. Energy Information Administration (EIA) estimates that
the South China Sea as a whole contains 11 billion barrels of oil and 190 trillion cubic feet of
natural gas. However, the EIA also claims that the Spratly Islands in particular have “virtually no
proved or probable oil reserves.”[16] Nonetheless, many claimant states have already been in
contact with major oil exploration companies. In addition to this, the global decrease in fishing
stocks and growing populations mean that the fishing rights and stocks that the Spratlys hold are
very attractive to the claimant states.[17]

Some scholars such as Min Gyo Koo have also focused on the strategic importance of the
Spratlys. The South China Sea is the second busiest sea lane in the world and much of the
world’s trade passes through it. Further to this, the South China Sea is a militarily important
passage; countries controlling the Spratlys could potentially prevent enemy navies from passing
and the Spratly Islands themselves represent important observation posts.[18]

Other scholars focus on more structural realist explanations such as arms build-ups and power
balances. De Castro has thus focused on the PRC’s use of what he calls “power politics
tactics”[19] such as pressing for a bilateral approach to the dispute in order to avoid a PRC vs.
ASEAN (Association of Southeast Asian Nations) dynamic and utilizing its naval capabilities to
obtain its interests. De Castro also gives a long account of the PRC’s naval arms build-up and
focuses on the balance of power in the area. Along the same lines, Marlay[20] describes both the
Philippines’ and the PRC’s military capabilities and Stanley Meyer focuses on issues such as the
possibility of a regional arms race[21].

Along the same vein, David Scott has focused on the power vacuum left in Southeast Asia after
the fall of the Soviet Union and the possibility of states like the US, Japan or Australia becoming
involved as stabilizing powers. Scott explains that the Philippines could balance against the PRC
by allying with the US in order to maintain status quo and he concludes that “The benefits of
such balancing may become apparent because balancing is itself a stabilizing process.”[22] This
statement is as if taken out of structural realist Kenneth Waltz’ ‘Man, the State, and War’ from
1959.

Much of the scholarship on the Spratly Islands dispute, explains the dispute in realist terms, but
suggests solutions of a liberal or liberal institutionalist character. Liberalism focuses on the
possibility of abolishing war and conflict through trade and diplomatic ties and through
intergovernmental organizations.[23] Meyer states that “The Spratly Islands issue is most likely
to be resolved in a regional forum”[24] such as ASEAN or the ASEAN Regional Forum (ARF).
Likewise, Michael Gallagher, in a more classical liberal way, advocates for increased trade
relations and diplomatic ties in order to prevent a possible conflict over the South China Sea.[25]
Others focus more on international law and the UN. Xavier Furtado for example examines
UNCLOS’ limitations with regards to the dispute, but also suggests improvements to the use of
UNCLOS.[26]

Some scholars have taken a more constructivist approach to the dispute by looking at how
identities are developed and transformed through interaction.[27] Chen Jie has gone some way
by focusing on the role of history, perception and emotion in the PRC’s approach to the dispute
by analyzing for example the effect of ‘the long century of humiliation’-thinking in the PRC,
which means that “China regards itself as a victim of regional countries’ aggression and
encroachment.”[28] Jie, however, only take this approach in her first section and then turns to
describing the PRC’s Spratly policy in structural realist terms.

Chun Leung Jacky Li takes a more consistent approach when looking at Filipino internet
discourse regarding the dispute. She identifies internet discourses portraying the Philippines as
the “Small Brave Kid vs. the Big Bully”[29] Li, however, seems to mix in official discourse
from figures such as Filipino presidents. The article thus adds valuably information to existing
debates, however remains slightly inconsistent.

Evidently there are large gaps in the existing literature, which has mostly focused on the dispute
through realist and liberalist lenses. This essay moves along the same lines as Chen Jie and Jacky
Li’s research, however, takes a purely constructivist approach by looking at the identities and
perceptions as portrayed in PRC and Filipino official discourses on the dispute. This is done in
an attempt to discover previously ignored dynamics that construct and reproduce the conflict in
certain terms. This essay thus seeks to add to the existing research, rather than discard it. This is
done through poststructuralist discourse analysis as explained in the next section.

Discourse Analysis

Poststructuralist discourse analysis focuses on the link between foreign policy and identity. It
assumes that “policies are dependent upon representations of the threat, country, security
problem or crisis it seeks to address. Foreign policies need to ascribe meaning to the situation
and to construct the objects within it”[30]. This meaning and these objects are constructed by
drawing on specific identities and representations articulated through language. As Hansen notes,
language is political, meaning that it is a “site for the production and reproduction of particular
subjectivities and identities while others are simultaneously excluded.”[31] But identities and
policies do not exist in simple causal relationships, rather they are mutually constitutive and
reproductive thus it is “through the discursive enactment of foreign policy (…) that identity
comes into being, but this identity is at the same time constructed as the legitimization for the
policy proposed.”[32] This is why discourse analysis makes language its ontological focus and
the articulation of identities and policies its epistemological focus.[33] Thus in this analysis the
discourse (i.e. the language) is analyzed in order to reveal how identities construct policies and
vice versa.

More specifically, the analysis includes two so-called ‘selves’ (the PRC and the Philippines) in
order to examine to what extent these selves differ in their construction of identities in the
dispute and in their perception of it. Hansen identifies three intertextual models that a discourse
analysis can base itself on. Due to the brevity of this essay only the first intertextual model,
namely official discourse, will be analyzed here. The sources that are analyzed therefore come
directly from the PRC or Filipino governments. The aim is to show how PRC and Filipino
officially-articulated identities constitute and are constituted by the dispute. One specific ‘event’
is analyzed (the 2012 Scarborough Shoal standoff) as well as the general official PRC discourse
between 2007 and 2014 and general official Filipino discourse between 2010 and 2014. The
difference in time scale is due to the lack of Filipino sources from the years prior to 2010. The
analysis therefore assumes that the Filipino discourse did not change substantially from 2007-
2010. The criteria for choosing these sources are as follows 1) the source includes clear
articulations of identities and policies; 2) is widely read and attended to; 3)comes from a formal
authority that defines the political position.[34]

The discourse analysis included 26 items from the Ministry of Foreign Affairs of the PRC and 4
items from the Ministry of National Defense of the PRC and on the Filipino side, 12 items from
the Department of Foreign Affairs (DFA) of the Philippines and 2 items from the Department of
National Defense of the Philippines. The items include speeches, communiques, press
conference transcripts and official notifications. The unequal number of Chinese and Filipino
items is due to the large amount of PRC sources available online. Despite the smaller number of
Filipino items, these were actually more concentrated on the Spratly Islands than the Chinese
ones – this is probably due to the fact that the Chinese items focused on multiple of its South
China Sea disputes. Naturally, only those statements pertaining to the Spratly Islands or the
South China Sea in general were analyzed.

The PRC Discourse: the Peace-Loving PRC and History as a Way of Knowing

Much of the Chinese discourse focuses on the cooperation and stability of the region. Among the
most used words in the Chinese discourse are ‘peace’, ‘stability’ and ‘prosperity’. This is visible
in sentences such as “we should (…) enhance unity and cooperation among us, overcome
difficulties and meet challenges and promote peace, stability and prosperity of the region”[35]
These words and phrases are present both in documents relating to regional events such as
ASEAN, ARF or East Asian summits, but are also present to a lesser extent in documents
specifically regarding Sino-Filipino relations such as joint statements regarding the dispute and
in quotes from the Minister of Defense. Alongside its pressing for peaceful cooperation and
development, the PRC discourse often refers to specific policies such as its ‘Good Neighbour
Policy’ and the famous ‘Win-win cooperation’. Moreover, this ‘peace, stability and prosperity’
discourse leads the PRC to urge the other claimant states to settle disputes “peacefully through
bilateral friendly consultations”[36]. The PRC thus sees the dispute as a potential obstacle to
regional peace, stability and prosperity and presses for peaceful negotiations and solutions. The
PRC speaks in ‘we’ terms rather than ‘us and them’ terms. In this way the PRC is portraying
itself as a force for regional peace, but also conveying the notion that China cannot be peaceful
on its own.

This self-image induces the PRC to portray any aggression by other states as a disturbance to
regional stability. During the Scarborough Shoal Standoff in 2012 where a Filipino navy ship
was sent to the Scarborough Shoal due to a Filipino surveillance plane having spotted Chinese
fishing vessels in the area, the PRC called the Filipino ships “warships”[37]. Furthermore, the
PRC portrayed the Philippines’ actions as “harassment of Chinese fishing boats”[38] and as
going “against the two countries’ consensus to maintain peace and stability of the South China
Sea.”[39] Underlining its peaceful nature, the PRC stated that “[c]ompetent Chinese authorities
have sent public service ships rather than warships to waters of the Island with the aim of
protecting the safety of the Chinese fishermen”.[40] The PRC later stated that “some Philippine
senior officials misled public opinion”[41] regarding the standoff. Thus the PRC portrays itself
as a peaceful state, whereas the Philippines is portrayed as an aggressive warship-sending state
that goes against the consensus for peace and purposely misleads public opinion. Clearly in this
image the PRC is acting morally correct, whereas the Philippines is acting unacceptably.

Another type of discourse is, however, also discernible. It is best described as realist discourse
grounded in a history-focused narrative. This is visible in the following statement, recounting a
Chinese explorer’s travels 600 years ago:

“The Chinese brought with them tea, ceramics, silk and craftsmanship. They did not occupy a
single inch of land. As long-time victims of foreign aggression and humiliation, the Chinese
people are keenly aware of the meaning of national independence, sovereignty, security and
world peace. We will never inflict such sufferings upon other nations.”[42] [the author’s
emphasis added]

This shows how important concepts such as sovereignty and territory are to the PRC, which only
sees itself as upholding its “territorial sovereignty and maritime rights and interests”[43] in the
South China Sea. The PRC called the 2012 Scarborough Shoal standoff a “violation of China’s
sovereignty”[44] and reiterated that “the Huangyan Island [Scarborough Shoal] is an integral part
of China. China has indisputable sovereignty over the Island.”[45] The discourse surrounding the
Scarborough Shoal standoff also shows the use of realist terms in reference to history:

“[T]he Huangyan Island is China’s inherent territory (…). China has ample jurisprudential
evidence supporting its sovereign rights over the Island. China was the first to discover and name
the Huangyan Island and also the first to include it into China’s territory and exercise sovereign
jurisdiction over it. The waters surrounding the Huangyan Island has been a traditional fishing
ground for Chinese fishermen. Since ancient times, Chinese fishermen have been fishing in
waters surrounding the Island.”[46]

Thus the PRC is using very modern-day realist language, but justifying its claim in historical
terms. The past is extremely important to the PRC and to its conception of itself. To some extent
the PRC views history as a way of determining what is true and regards it as outweighing all
other arguments. This high regard of history might be linked to its fear of forgetting history and
repeating past mistakes. The PRC’s resolve not to forget history is visible in statements such as
“The Chinese people, after suffering tremendously from foreign aggression and colonialism in
modern times, and having eventually regained independence and liberation, would by no means
bring the same suffering to people of other countries.”[47]

Moreover, the PRC discourse not only uses history to justify its claims, it also uses history to
support the abovementioned ‘peace, stability and prosperity’ discourse. A combination of the
two discourses is thus visible in sentences such as “China’s historical and cultural tradition
determines that the Chinese are a peace-loving nation”[48] and “China knows deeply from
history and its own experience that peaceful development is the right and successful path, a path
that serves best China’s fundamental interests and the interests of the people in the world.”[49]
This discourse conveys the idea that it is possible to ‘know from history’ and that ‘historical and
cultural tradition’ can ‘determine’ something. History is thus a way of knowing for the PRC and
ignoring it “would be going against history and not being responsible to mankind.”[50] History
is seen as an instrument for improving the world we live in by learning from it, but it is also a
way of knowing in itself. This is why the PRC knows that the Spratly Islands belong to them.
History provides all the proof that is needed.

The Filipino Discourse: International Law as the Only Way Forward

The most dominant Filipino discourse focuses on international law and in particular UNCLOS.
The Philippines convey a strong belief that international law can solve the dispute. President
Aquino III stated that “rules and norms anchored on international law are fundamental in
promoting trust and confidence among nations, and in ensuring stability and peace in the
international community.”[51] The Philippines, like the PRC, seem intent on regional peace and
stability. The Philippines, however, underline that making use of international law is the only
way to ensure this peace – this was underlined when the Philippines initiated arbitral proceedings
under Article 287 of UNCLOS against the PRC, challenging its claims in the South China
Sea.[52] The Philippines argues that “the clarification of maritime entitlements under UNCLOS
would assure peace, security, stability and freedom of navigation in the South China Sea. We
truly believe that the arbitral proceedings would bring this dispute to a durable solution.”[53]
According to the Philippines a durable and just solution is possible through international law
because it sees international law as “objective, impartial and non-discriminatory”[54] and states
that it “ought to be respected by all”[55]. This is also why the Philippines do not perceive the
arbitration as a threat to the PRC; “Arbitration is as peaceful and amicable process to settle a
dispute between and among friends.”[56]

The Philippines believes that what ultimately counts is international law and that it overrules
other approaches to the dispute. This is visible in its discourse regarding the Scarborough Shoal
standoff, which continuously justifies the Filipino claim of the Shoal through different UNCLOS
articles whilst also delegitimizing the PRC’s historic claim by subjecting it to international law;
“[U]nder public international law, for a historic claim to mature into a historical title, a mere
showing of long usage is not enough.”[57] This is how the Philippines has come to view the
PRC’s actions regarding the Shoal as a “serious violation of the Philippines’ sovereignty and
maritime jurisdiction”[58] whilst its own occupation of the Scarborough Shoal is legal and
justified under UNCLOS. In this way the Filipino discourse engages with the PRC’s historic
claim, however, evaluates it according to ‘objective and impartial’ international law rather than
as historical ‘facts’. Consequently, the PRC’s historic claim must adhere to the specifics of
international law to be legitimate in the eyes of the Philippines. To some extent then, the Filipino
way of knowing in relation to the dispute is through international law. The Philippines believes
that international law points to what constitutes right from wrong. Much like the PRC, the
Philippines also think that we can learn from the past. However, the Philippines, rather than
believing in the lessons of history, believes that we can learn from past cases in international law.
The Filipino discourse for example refers to the Palmas Island Case as a precedent to the Spratly
one.[59] Hence, it is through international law rather than history that the Philippines knows that
the Spratly Islands (i.e. the Kalayaan Group) belong to them. International law provides all the
proof that is needed.

The Filipino self-perception might be what led it to see the dispute through legal terms. To some
extent, the Philippines views itself as the less powerful actor, however, believes that the law is
the way to challenge the PRC. This thinking is visible in statements such as the Department of
Foreign Affairs’ call for Filipinos to “unite to support the President’s constitutional mandate [i.e.
the arbitration initiation] to protect Philippine territory and national interest”[60]. This exhibits a
certain sense of the Philippines being the underdog, who can nevertheless overcome the bigger
powers by uniting in playing the game that we are all equal in; the law. The Philippines thus
remind us that “[t]he law must apply both to the mighty and to the weak, to the rich and to the
poor alike.”[61]

The perception of the PRC as the physically stronger part is also visible from the Filipino
discourse. The PRC is viewed as a rigid hardliner who make the continuation of negotiations
impossible – this according to the Philippines is the main reason for the initiation of the
arbitration.[62] Moreover, the PRC is seen as the aggressor projecting “an overwhelming naval
and maritime presence far beyond its maritime shores thereby raising regional tensions”.[63] The
PRC is also seen as ‘harassing’ Filipino ships – the exact same word was used by the PRC about
the Philippine actions. Moreover, it comes as no surprise that the Philippines, much like PRC,
sees itself as a calm and rational, peace-loving nation, exhausting “almost all political and
diplomatic avenues for a peaceful negotiated settlement of its maritime dispute with China. Our
last resort (…) was to utilize the legal track”.[64] The PRC, not the Philippines, has made
progress via dialogue impossible according to the Philippines.

Conclusion

This essay has sought to identify and explain the major dynamics of the Spratly Islands dispute.
It has done so by first recounting the background of the dispute and reviewing the existing
literature on the dispute. As shown, most of the literature identifies the major dynamics of the
dispute through realist lenses whilst suggesting solutions to the dispute in liberalist terms. A
limited amount of constructivist approaches exist, none of these, however, undertake a thorough
analysis of the underlying identities and perceptions of the dispute. The essay therefore
attempted to fill a gap in the existing research by taking a constructivist approach to the dispute
through Hansen’s poststructural discourse analysis. The analysis focused on the official
discourse of the People’s Republic of China and the Philippines towards the dispute and each
other by analyzing the official general discourse and the discourse surrounding one specific
event, the Scarborough Shoal standoff.

The analysis revealed that the two states’ perceptions of themselves, the other and the dispute in
general, differ extensively. The PRC identifies itself as a peace-loving state, working for regional
stability whilst perceiving the Philippines as an aggressor, who works against the PRC’s peaceful
efforts. Moreover, the PRC discourse revealed a certain type of epistemology used by the PRC;
utilizing history as a way of knowing and thus as a way of telling right from wrong. The PRC
thus emphasizes the importance of learning from the past in order to improve the world we live
in. Contrastingly, the Philippines perceives itself as a peaceful state, acting within the boundaries
prescribed by international law. It identifies itself as less powerful than the PRC, however,
understands international law as a way to stand up to the PRC. The PRC is, perceived as an
aggressive hardliner who has made dialogue impossible. The Filipino discourse shows that it has
come to view international law, and particularly UNCLOS, as the only way to objectively tell
right from wrong in the dispute. For the Philippines international law is thus the only way to
know who the Spratly Islands belong to.
At the heart of the dispute therefore, lie two fundamentally different epistemological foci. One
state believes in the power of history to determine who has sovereignty over what, whereas the
other state believes that applying the law is the only way to determine this. It is as if the PRC and
the Philippines are speaking two different languages with very different grammatical rules,
therefore not understanding each other. Furthermore, each state perceives itself as the good guy
and the other as the aggressor. This, combined with the two incompatible understandings of how
to determine what the right solution is, serves to reproduce the dispute in irreconcilable terms
and drives it into a deadlock of conflicting identities and perceptions.

http://plj.upd.edu.ph/the-philippine-claim-over-the-spratly-group-of-islands-an-applications-of-article-
76-of-the-unclos/

The Philippine Claim Over the Spratly

Group of Islands: An Application of Article
76 of the UNCLOS
The Philippine Claim Over the Spratly Group of Islands: An Application of Article 76 of the
UNCLOS*

Henry Rhoel R. Aguda**

Jesusa Loreto A. Arellano-Aguda***

Download: pdf

“Now the earth was formless and empty, darkness was over the surface of the deep, and the
Spirit of God was hovering over the waters… And God said, ‘Let there be an expanse between
the waters to separate water from water.’ So God made the expanse and separated the water
under the expanse from the water above it. And it was so.”

- Genesis 1:2-7

I. Abstract

The Spratly group of islands (hereafter referred to as Spratly) of the South China Sea is a ‘tinder
box’[1] of international conflict in the Asian region. An estimated 44 of the 51 small islands and
reefs are claimed or occupied by the littoral states of Brunei, China, Cambodia, Indonesia,
Malaysia, Philippines, Taiwan, Thailand, and Vietnam.[2] The vast natural resources contained
in the area consist primarily of oil, natural gas, and seafood.[3] The dispute is further fuelled by
the growing attempts of incursion by China in the region, which is motivated by its expanding
need to meet its energy demands.[4] The overlapping sovereignty claims in Spratly have resulted
in several military incidents since 1974[5] and in several countries awarding foreign companies
exploration rights in the same area of the South China Sea.[6] The foreboding diplomatic crisis is
further emphasized by the diplomatic protest filed by the Philippines against China in 1999 when
the latter established military fortifications in Mischief Reef.[7] In 1992, sovereignty and
exploration disputes were thought to be resolved with the drafting of the ASEAN declaration,
which committed members to resolve disputes peacefully and to consider joint exploration of the
territory.[8] Military aggression and exploration endeavors conducted by China since 1992,
however, have brought into question the validity of the 1992 joint declaration and raises the
question of what long-term, peaceful solution could prevent the region from erupting into a
continuum of military incidents over sovereignty rights to the natural resource-rich Spratly
Islands.

The problem that the Philippine government faces is establishing within the international
community of States its rightful claim over the islands of Spratly. While diplomatic attempts to
assert Philippine sovereignty have been initiated as early as the 1970’s, it is only recently upon
ratification of the Philippines of the United Nations Convention on the Law of the Sea
(hereinafter referred to as “UNCLOS”) that an internationally recognized legal framework for
resolving the competing claims has buoyed the Philippines claim to new heights.

With the force of customary law, Article 76 of UNCLOS has shifted the basis of the Philippine
claim on Spratly from historical evidence to empirical scientific foundations. As the islands in
Spratly are small in size and cannot support economic life of their own, and worse, many are
reefs and other features that are not above water all the time, they are unlikely to be conferred
continental shelf or Exclusive Economic Zone status.

The Philippine’s claim is based mainly on Article 76 of the UNCLOS as it provides the
framework for establishing the rights granted in Article 77 to littoral states affected by the
controversy. UNCLOS compartmentalized the ‘common heritage of man’[9] into various
maritime zones consisting of the territorial sea, contiguous zone, exclusive economic zone, and
the high seas.[10]

Due to the highly technical nature of the provisions of UNCLOS, the paper will focus on the
legal regime of the extended continental shelf and will briefly discuss the other maritime zone
regimes to the extent necessary in understanding the application of Article 76 of
UNCLOS. Furthermore, while most literature on the subject matter of the Spratly conflict
advocates diplomatic solutions to be adopted by the littoral states, the paper will limit its
discussions to the legality of the Philippines claim. While a diplomatic approach to a
geopolitical conflict may ultimately be resorted to, the interests of the Philippines will be best
served by making its legal position the bedrock for any diplomatic solution or future
international arbitration.

While there have been several scientific research and political papers written on the Philippine
claim on Spratly, there has been a dearth of research work on the legal aspect of the claim; the
least of which is the availability of legal opinions on the application of Article 76 as the basis of
the claim.

The paper will also discuss the other bases for the claim of the Philippines namely: discovery,
proximity, and national security. The merits and weaknesses of these other bases for the
Philippine claim will be discussed in order to provide a contrast with Article 76.

Finally, the paper will make recommendations in the area of legislation and executive actions
required to establish the Philippine claim on Spratly based on Article 76.

II. Introduction

It is said that the history of the sea has been dominated by a central and persistent theme: the
competition between the exercise of governmental authority over the sea and the idea of the
freedom of the seas.[11] This is the balance that UNCLOS is envisioned to maintain. Having
been in effect for more than two decades, the UNCLOS now encompasses the normative law that
governs maritime disputes between States. Among its ground breaking features is its
compartmentalization of the various maritime zones into cohesive legal regimes. As it applies to
the Spratly, the legal regime of the continental shelf embodied in Articles 76 to 84 provides the
answer in resolving the contending sovereignty claims over it.

In order to facilitate the resolution of the conflicting claims, the UNCLOS has established the
Commission on the Limits of the Continental Shelf (CLCS). As a pre-requisite to the granting of
the claim, each coastal state must submit to the CLCS the necessary scientific information
gathered according to the guidelines set by Article 76 and its annexes. The deadline for the
submission has been set to May 2009. However, the Philippines is lagging behind with the other
littoral claimants in finalizing, solidifying, and articulating its legal claim to the Spratly.

III. Statement of the problem

At least 6 countries have set up military installations in the various islands of the Spratly. The
escalating tension in the region is brought about by the absence of any formal or internationally
recognized adjudication of the claims. As such, claims were based on various pseudo norms and
principles such as discovery, proximity, and national security.

While most of the claimants have relied on historical precedents to bolster their claims, Article
76, which covers the definition of the outer limits of the continental shelf of a coastal state,
provides the Philippines with the strongest scientific and legal basis for its claim and Article 77
provides it patent rights over the Spratly. The problem before us is how to use Article 76 of the
UNCLOS in winning the claim over the Spratly.

IV. Statement of the issues

This paper will tackle the issue of whether or not the Philippines has a valid claim to the Spratly
Islands based on Article 76 of the UNCLOS. In the course of the discussion, the following
questions will have to be resolved:
1. What is the interpretation of the provision and annexes related to Article 76?

2. What is the procedure for the filing of the claim to the CLCS?

3. What are the relevant legal and historical antecedents in understanding the Philippine claim?

4. What are the actions required from the Philippine government to support its claim?

V. Background

A. United Nations Convention On The Law Of The Sea

Public international law regulates the relations among the States, through treaties and customary
norms.[12] The international law of the sea is one of the key areas of public international law and
the UNCLOS is its cornerstone.[13]

After 14 years of negotiations to which more than 150 countries representing all regions of the
world participated,[14] UNCLOS was finally concluded on 10 December 1982[15] in Montego
Bay, Jamaica. It is commonly referred to as a “Constitution for the Oceans,” as it addresses every
aspect of the uses and resources of the sea.[16] It represents one of the most complex and
innovative efforts to codify international law since World War II.[17] UNCLOS comprises 320
articles with 9 highly complex annexes and a number of Conference Resolutions. It entered into
force only in 16 November 1994, since the United States and other industrialized countries
expressed objections on Part XI of the UNCLOS, relating to the deep seabed mining regime. In
order to resolve that impasse, in the 1990’s, the United Nations Secretary General sponsored a
series of consultations that led to the adoption of the 1994 “Agreement relating to the
implementation of Part XI of the United Nations Convention on the Law of the Sea” where State
parties undertook to implement Part XI of the Convention in accordance with the provisions of
the agreement. The adoption of the agreement made possible the entry into force of the
Convention.[18]

UNCLOS represents a commitment of the international community to the rule of law in the
conduct of maritime affairs.[19] It is a response to the need expressed by many States to
elaborate a new and comprehensive regime for the law of the sea as well as an effort to achieve a
“just and equitable international economic order”.[20] Having been ratified by 152 States (as of
December 1, 2006),[21] its universality is supposed to greatly increase order and predictability,
narrow the scopes of disputes to more manageable proportions and provide the legal means to
resolve them.[22] It is supposed to bring considerable stability to State relations with respect to
ocean affairs and the law of the sea.[23] In short, the universality of UNCLOS should help foster
a stable regime required for effective ocean governance to promote peace and security, equity,
and sustainable development.[24]

The drafters of UNCLOS recognized that all problems concerning oceans are closely related and
should be dealt with in a cohesive and holistic manner.[25] UNCLOS, therefore, deals with (i)
limits and legal regimes of the various maritime zones (including the continental shelf); (ii)
rights of navigation; (iii) peace and security; (iv) conservation and management of living and
marine resources; (v) protection and preservation of the marine environment; (vi) scientific
research; (vii) activities on the seabed beyond the limits of national jurisdiction; and (viii) the
settlement of disputes. In addition, UNCLOS established three bodies: the Commission on the
Limits of the Continental Shelf (hereinafter referred to as “CLCS”), the International Seabed
Authority (hereinafter referred to as “ISA”), and the International Tribunal for the Law of the
Sea (hereinafter referred to as “ITLOS”).[26]

UNCLOS is one of the most important and most widely ratified multilateral treaties.[27] As a
treaty, UNCLOS has often been referred to as a “package deal” because of the circumstances in
which it was negotiated, including the many different issues covered, as well as the conflicting
interests cutting across traditional political and regional alignments that it sought to balance in
light of the great number of States that participated.[28] These participating States are bound by
the rights and obligations enunciated in the UNCLOS, and must be performed by them in good
faith.[29] Article 300, Part XVI of the UNCLOS provides:

States Parties shall fulfill in good faith the obligations assumed under this Convention and shall
exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner, which
would not constitute an abuse of right.

Moreover, UNCLOS, with the exception of Part XI, is generally considered to represent a
codification of customary international law[30] and its progressive development. [31] Since the
negotiations proceeded on the basis of consensus, it was much easier during the twelve years
before UNCLOS entered into force for most of its provisions to become accepted as representing
customary law.[32]

Customary international law, as described by the Statute of the International Court of Justice is
“a general practice accepted as law.”[33] The existence of a rule of customary international law
requires the presence of two elements, namely State practice (usus) and a belief that such
practice is required, prohibited, or allowed, depending on the nature of the rule, as a matter of
law (opinio juris sive necessitates).[34] Customary international law is therefore obligatory, and
is binding on all States.[35] As most provisions of UNCLOS, specially the most important
provisions, are codifications of customary international law they should be binding on all States,
including the non-parties to it.

B. The Potential Of Spratly

The South China Sea is defined by the International Hydrographic Bureau as the body of water
stretching in a Southwest to Northeast direction, whose southern border is 3 degrees South
latitude between South Sumatra and Kalimantan (Karimata Straits), and whose northern border is
the Strait of Taiwan from the northern tip of Taiwan to the Fukien coast of China.[36] It
encompasses a portion of the Pacific Ocean stretching roughly from Singapore and the Strait of
Malacca in the southwest, to the Strait of Taiwan (between Taiwan and China) in the northeast.
The area includes more than 200 small islands, rocks, and reefs, with the majority located in the
Paracel and Spratly Island chains.[37] The Spratlys links the Pacific Ocean and the Indian
Ocean.[38] Despite the fact that the archipelago is spread over 160,000 to 180,000 square
kilometers of sea zone, the total landmass of the Spratly Islands total land area of 10 square
kilometers only. All its islands are coral, low and small, about 5 to 6 meters above water.[39]

The land is not arable, does not support permanent crops, and has no meadows, pastures or
forests[40]. Many of these islands are partially submerged islets, rocks, and reefs that are little
more than shipping hazards not suitable for habitation.[41] The Spratly Islands have not been
occupied by humans until recently. Countries with territorial claims use military means –airstrips
and armed forces — to reinforce their claims. [42] The islands are important, however, for
strategic and political reasons, because ownership claims to them are used to bolster claims to the
surrounding sea and its resources.[43]

The South China Sea is rich in natural resources such as oil and natural gas. One study conducted
by China estimated oil reserves in the South China Sea to be larger than Kuwait’s present
reserves.[44] Oil and natural gas reserves in the Spratly region are estimated at 17.7 billion tons;
Kuwait’s reserves amount to 13 billion tons.[45] The Spratly reserves place it as the fourth
largest reserve bed worldwide.[46] These resources have garnered attention throughout the Asia-
Pacific region. East Asia’s economic growth rates had been among the highest in the world and
this economic growth will be accompanied by an increasing demand for energy. Over the next 20
years, oil consumption among developing Asian countries is expected to rise by 3.0% annually
on average, with more than one-third of this increase coming from China alone. If this growth
rate is maintained, oil demand for these nations will reach 33.6 million barrels per day by
2025.[47]

Almost all of this additional Asian oil demand, as well as Japan’s oil needs, will need to be
imported from the Middle East and Africa, and to pass through the strategic Strait of Malacca
into the South China Sea. Countries in the Asia-Pacific region depend on seaborne trade to fuel
their economic growth, and this has led to the sea’s transformation into one of the world’s
busiest shipping lanes. In addition, the South China Sea region contains oil and gas resources
strategically located near large energy-consuming countries.

Over half of the world’s merchant fleet sails through the South China Sea every year. The
economic potential and geopolitical importance of the South China Sea region has resulted in
jockeying between the surrounding nations to claim this sea and its resources for themselves.

C. The History Of The Philippine Territory And Philippine Claim to The Spratly

Article III of the Treaty of Paris entered into by Spain and the United States on December 10,
1898 principally defined the territorial limits of the Philippines.[48] The treaty sets forth in exact
metes and bounds the territory of the Philippines taking into consideration the unity of land and
water that inheres in the concept of an archipelago.[49] The subsequent Constitutions of the
Philippines have adapted the historical and political boundaries of the Philippines as set in the
Treaty of Paris. As shown in Figure 1.0, Spratly is not included within the political boundaries of
the Philippines set forth in the Treaty of Paris.

The Figure 1.0 – Evolving Boundaries of the Philippine Territory[50]

During World War II, Japan occupied both the Paracels and Spratlys Islands in 1939, shortly
after they controlled Hainan Island. The Japanese used Itu Aba, the largest island in the Spratly,
as a submarine base and a springboard for its invasion of the Philippines. [51] In 1947, a year
after gaining independence, the Philippine Secretary of Foreign Affairs called for the territory
occupied by Japan during the World War II to be awarded to the Philippines.[52] On 7 April
1949, the Chinese Republican Legation in Manila informed the Philippine government that the
Chinese were garrisoning Itu Aba in an effort to block the traffic of arms through Hainan to
Communist forces. However, the Philippine government continued to express concern and
discussed inducing Filipinos to settle in the Spratly islands. In the same month, the Philippines
sent its navy to explore the Spratlys.[53] An article published in Manila Bulletin on 15 May 1950
said that the Philippine government should occupy the Spratly Islands together with the United
States because it was closer to Palawan compared to China and Vietnam.[54] On May 17,
President Quirino of the Philippines said that if the Chinese Kuomingtang (Nationalist Party)
troops really occupied the Spratlys, then the Philippines did not need to occupy them. However,
if the islands fell into the communist enemy’s hands, Philippine security is threatened. It was
then said that the Spratlys should belong to the nearest country according to international law –
which is the Philippines.[55] The Philippines did not make a claim to the islands during the 1951
Treaty of San Francisco. However, the Philippines interpreted the Japanese renunciation of the
Spratly islands in the resulting treaty as to transforming the area into res nullius and making it
open to acquisition.[56]

In 1956, Tomas Cloma together with his brothers and 40 crewmen explored the Spratly and
claimed to have “discovered” and occupied 53 islands and reefs of the Spratly. They proclaimed
“formal ownership” over them and renamed these islands and reefs the Kalayaan (Freedomland)
Island Group. In October 1956 Cloma traveled to New York to plead his case before the United
Nations and the Philippines had troops posted on three islands by 1968 on the premise of
protecting Kalayaan citizens.[57]

In early July 1971, the Philippine government alleged that the Taiwanese troops on the Itu Aba
Island “fired on a boat carrying a Philippine congressman”.[58] After this the Philippine
government announced on 10 July 1971 that “it had sent a diplomatic note to Taipei asking that
the Chinese garrison be withdrawn from Itu Aba”.[59] The diplomatic note states: (1) The
Philippines has legal title to the 53 islands and reefs once occupied by Tomas Cloma because the
area was terra nullius at the time of its occupation and was “acquired according to the modes of
acquisition recognized under international law, among which are occupation and effective
administration”[60]; (2) the presence of the Chinese forces in Itu Aba constituted a threat to the
security of the Philippines; (3) Chinese occupation of some islands in Spratly group constituted a
de facto trusteeship on behalf of the World War II allies which precluded the garrisoning of the
islands without the allies’ consent; and (4) the Spratly group is within the archipelagic territory
of the Philippines.[61] Meanwhile, the Philippines sent its navy to occupy Thitu Island and
Nanshan Island.[62]

In April 1972, the Philippine government incorporated the “Kalayaan” group into Palawan
Province as a municipality[63] and was administered as a single “poblacion” (township), with
Tomas Cloma as the town council Chairman.[64]
In February 1974, the Philippine government stated that the Philippine forces had occupied five
islets in the Spratlys. It justified its occupation of the Spratly Islands as “the strategic importance
of the Kalayaan area to the Philippine security”.[65]

By 1978, the Philippines occupied two more islands; later, it further occupied Siling Jiao
(Commodore Reef); in 1980, it occupied Liyue Tan (Reed Bank).[66] On June 11, 1978, Filipino
president Marcos signed Presidential Decree 1596 which claimed the Kalayaan group. The 1978
decree omitted Spratly Island and included Amboyna Cay which was not claimed by Cloma. It
also said that “some countries claimed some parts of this area but they had given up and thus the
claims are not valid anymore…”[67] On 17 July 1978, Presidential Decree (PD) 1599 was
issued, proclaiming that the Kalayaan Group was within the Philippine EEZ (Exclusive
Economic Zone). More recently in 2005, a cellular phone base station owned by Smart
Communications was erected on Pag-asa Island.[68]

D. The Overlapping Sovereignty Claims

Centuries-old evidence of discovery are used as basis to lay claim to title to the Spratly islands.
Claims are also based on occupation, and rights over continental shelf delimitation as defined
under the UNCLOS. However, sovereignty over the Spratlys has been fiercely contested only
since World War II, with the withdrawal of Japanese and French forces that had occupied some
islands.[69] Only China, Taiwan, and Vietnam claim all of the Spratly islands. (See Figure 2.0)

Figure 2.0 Conflicting Claims Over Spratly Islands[70]

China’s assertions of sovereignty in the South China Sea rest on historical claims of discovery
and occupation. The Chinese case is well documented, going back to references made in Chou
Ch’u-fei’s Ling-Wai- tai-ta during the Sung dynasty (12th century)[71] and in the records of
Chinese navigators during the Qing dynasty (18th century).[72] In 1992, China passed a special
territorial sea and contiguous zone act to legalize its claims to the Spratlys. Article 2 of this
legislation specifically identifies both the Paracels and Spratly archipelagos as Chinese
territory.[73] To uphold this claim to title, since 1988 China has deployed some 260 marines in
garrisons on seven of the Spratly islets.[74]

On the other hand, Taiwan’s claims, which mirror that of China’s,[75] are based on its
longstanding historic ties to the islands.[76] Taiwan was the first government to establish a
physical presence in Spratly following the Japanese departure after World War II. Taiwan
announced its claim to the atoll in 1947 and has occupied the largest island of the Spratlys, Itu
Aba, constantly since 1956. From the mid-1950s through the late 1980s, Taiwan maintained a
force of some 500 soldiers on Itu Aba, although by 1999 the number of troops had been reduced
to about 110.[77]

The legal grounds for Vietnam’s claims to the South China Sea islands flow from historic
activities during the Nguyen dynasty (17th–19th centuries).[78] Maps and other supporting
historical evidence for Vietnam’s claims were compiled and set out by the government in two
white papers, Vietnam’s Sovereignty Over the Hoang Sa and Trung Sa Archipelagoes, issued in
1979 and 1982, respectively.[79] Vietnam asserts that “it has maintained effective occupation of
the two archipelagos (Paracel and Spratly islands) at least since the 17th century when they were
not under the sovereignty of any country and the Vietnamese State has exercised effectively,
continuously and peacefully its sovereignity over the two archipelagos until the time when they
were invaded by the Chinese armed forces.”[80]

Vietnam also bases its claims to sovereignty over the Spratlys by right of cession from a French
claim to the islands first made in 1933. In any event, Vietnam moved in 1975 to secure its claim
to possession of the Spratlys when it occupied thirteen islands of the group. In September 1989,
Vietnam occupied three more islets, and has since taken at least nine additional atolls. By 1999,
Vietnam had stationed 600 troops on at least twenty-seven Spratly land formations.[81]

Malaysia has claimed sovereignty over twelve islands in the Spratly group, basing its claims to
certain islands on ocean law principles associated with prolongation of a continental shelf
seaward based on UNCLOS. Malaysia is the most recent claimant to occupy part of the Spratlys
militarily. In late 1977, Malay troops landed on Swallow Reef. Since then, about seventy soldiers
have been stationed on three of the twelve islets claimed by Malaysia.[82]

Brunei has only one claim to the Spratly group – the naturally submerged formation known as
Louisa Reef. The legal premise for substantiating Brunei’s claim flows from continental shelf
provisions in the UNCLOS. Brunei remains the only claimant without a military presence in the
Spratly Islands. Even so, Louisa Reef is also claimed by Malaysia, which took possession of it in
1984.[83]

Indonesia is not a claimant to any of the islands or rocks in the Spratlys. However, the Chinese
and Taiwanese claims, depending on their nature and interpretation, could also intrude upon the
Indonesian EEZ and continental shelf as defined under UNCLOS and as demarcated in the
Indonesian-Malaysian Agreement of 1969.[84]

In sum, the Spratlys situation remains complicated by competing claims and military clashes. In
March 2005, a memorandum of understanding was signed by China, the Philippines, and
Vietnam to resolve the energy exploration issues among the three countries in the South China
Sea. The country agreed to do seismic surveys in the area which includes the Spratly Islands,
without giving up their respective territorial claims. The Philippine National Oil Company,
China National Offshore Oil Corporation, and PetroVietnam agreed to design seismic oil
exploration for a three-year program covering a 55,000 square mile area. The three companies
are sharing the $15 Million project cost. The Chinese seismic vessel Nanhal is gathering the data.
The seismic data is sent to Vietnam for processing. Then the data is analyzed by experts in the
Philippines.[85]

Figure 3.0 Conflicting Oil Claims Over Spratly

VI. Article 76 as Basis for the Philippine Claim on Spratly

As man’s technology enabled him to exploit the historically inaccessible seabed and subsoil
lying beyond the territorial sea, so did the interests of States to appropriate for themselves these
areas rich with minerals and other resources. The need to regulate this once invisible realm of
humanity can be traced back to the “continental shelf” doctrine proclaimed by U.S. President
Harry Truman in 1945, where he pronounced the US government’s claim of sovereignty to the
natural resources and sea bed of the continental shelf beneath the high sea but contiguous to the
coast of the United Sates.[86]

Truman’s proclamation started the flow of customary international law on the continental shelf
that was officially recognized by the international community in the 1958 Convention on the
continental shelf and in the 1969 North Sea Continental Shelf Cases[87] as well as the 1978
Aegean Sea Continental Shelf Cases[88] all decided by the International Court of Justice (ICJ).
In fact, the ICJ had the occasion to assert the customary nature of the doctrines governing the
continental shelf. The ICJ stated:

For to become binding, a rule or principle of international law need not pass the test of universal
acceptance. This is reflected in several statements of the Court, e.g.: ‘generally … adopted in the
practice of States’ (Fisheries, Judgment, I.C.J. Reports 1951, p. 128). Not all States have, as I
indicated earlier in a different context, an opportunity or possibility of applying a given rule. The
evidence should be sought in the behavior of a great number of States, possibly the majority of
States, in any case the great majority of the interested States.[89]

Hence, Articles 76 to 84 of UNCLOS embodied the customary international law pertinent to the
determination of the validity of States claims over its continental shelf. The pertinent provisions
of UNCLOS now prevail over the 1958 Convention on the Continental Shelf.[90]

A. The Legal Regimes Of UNCLOS

One of the unique features of UNCLOS is the introduction of several legal regimes
corresponding to each maritime zone that determine the jurisdictional and sovereignty rights of a
coastal state. These legal regimes are (i) internal waters (article 8); (ii) territorial sea (articles 2-
32); (iii) contiguous zone (articles 33 and 303); (iv) exclusive economic zone (EEZ) (articles 55-
75); and (v) continental shelf (articles 76- 84).[91] Beyond the maritime zones are the (i) high
seas (articles 86-120) and (ii) international seabed area (articles 133-191). [92] These zones are
shown in Figure 4.0.

Figure 4.0

The Maritime Regimes of UNCLOS[93]

B. Defining The Baseline

The baseline is a line drawn by joining a set of points called basepoints which represent areas
exposed during low-low tide conditions. It is a prescribed line where all maritime zones will be
measured seaward of the coastal state. UNCLOS defines three principal types of baselines from
which the coastal state can use to define its coastal limits to its maximum advantage, whether
using only one type or combination of the following: Normal baseline (Article 5), Straight
baselines (Article 7) and Archipelagic baseline (Article 47). After defining the baseline, other
maritime zones can now be defined as follows: territorial sea (12nautical miles or “nm”) (Article
3), contiguous zone (24nm) (Article 33), exclusive economic zone (200nm) (Article 57),
mandatory continental shelf (200nm) (Article 76), and the extended continental shelf (beyond
200nm) (Article 76).

C. The Continental Shelf Regime

Article 76(1) of UNCLOS defines the continental shelf of a coastal state as comprised of the
seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the
natural prolongation of its land territory to the outer edge of the continental margin[94] or a
distance of 200 nautical miles from the archipelagic base lines[95]. All maritime zones are
defined by breadth criteria[96] as shown in Figure 4.0. The continental shelf regime is defined
and contained in Part VI (Articles 76 to 84) and Annex II of UNCLOS and it prevails over the
1958 Convention on the Continental Shelf.[97]

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.[98] 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 government’s intention to protect its interest,[99] which
would naturally include Spratly by virtue of its geology.

D. Rights Conferred By UNCLOS To Coastal States

There is a difference between claims based on sovereignty and claims based on Article 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 in this Part consist of the mineral and other non-living
resources of the sea-bed and subsoil together with living organisms belonging to sedentary
species, that is to say, organisms which, at the harvestable stage, either are immobile on or under
the sea-bed or are unable to move except in constant physical contact with the sea-bed or the
subsoil.[100]

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.[101]

E. The Determination Of The Extended Continental Shelf

As discussed above, Article 76 deals with the operational aspects of the delineation of the
continental shelf’s outer limits beyond the 200 nautical miles from the baseline from which the
breadth of the territorial sea is measured.[102] The continental shelf of a coastal State contains
the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout
the natural prolongation of its land territory to the outer edge of the continental margin or to a
distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is
measured where the outer edge of the continental margin does not extend up to that
distance.[103] After determining the delineation of the Philippine’s continental shelf, the outer
limits of the extended continental shelf must be ascertained. UNCLOS provided for the means to
approximate the outer limits of the extended shelf by using the following formula:

(a) For the purposes of this Convention, the coastal State shall establish the outer edge of the
continental margin wherever the margin extends beyond 200 nautical miles from the baselines
from which the breadth of the territorial sea is measured, by either:

(i) a line delineated in accordance with paragraph 7 by reference to the outermost fixed points at
each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance
from such point to the foot of the continental slope; or

(ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more than
60 nautical miles from the foot of the continental slope.

(b) In the absence of evidence to the contrary, the foot of the continental slope shall be
determined as the point of maximum change in the gradient at its base.[104]

The concept of the extended continental shelf was brought about by the differences in topologies
of various continental shelves. Figure 5.0 below shows the difference between the mandatory
continental shelf and the extended continental shelf.

Figure 5.0 Types of Continental Shelves

The outer limits of the extended shelf established above are subject to the following conditions:

The fixed points comprising the line of the outer limits of the continental shelf on the sea-bed,
drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not exceed 350 nautical miles
from the baselines from which the breadth of the territorial sea is measured or shall not exceed
100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500
metres.[105]

The outer limits of the extended shelf are further limited by:
Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the
continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth
of the territorial sea is measured.[106]

In sum, to locate the extended continental shelf, one must first determine the archipelagic
baseline.[107] The territorial sea begins from the baseline up to 12 nautical miles seaward.[108]
The contiguous zone, however, is between 12 and 24 nautical miles from the baseline.[109] Then
the EEZ is determined by measuring 200 nautical miles from the baseline.[110] The mandatory
continental shelf lies below the EEZ consisting of the seabed and its subsoil.[111] The extended
continental shelf is then measured using Article 76(4, 5) but only up to 350 nautical miles from
the baseline as stated in Article 76(6). Essentially, the extended continental shelf may be found
between the EEZ and 350 nautical miles from the baseline of the coastal state as shown in Figure
6.0 (see following page).

F. Application To The Philippine Claim On Spratly

Spratly is outside the 200 nautical mile EEZ of the Philippines but is within the 350 nautical mile
limit set by Article 76 (6). 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. The bathymetric map in
Figure 8.0, infra shows exactly where the Spratly is and how it straddles the continental shelf of
the Philippines as depicted by the light blue color on the map.

Figure 6.0 The Extended Continental Shelf[112]

The Spratly is undisputedly within the extended continental shelf of the Philippines located
between its established EEZ and 350 nautical miles from EEZ.[113] 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 microcontinental block.[114]

Figure 7.0 infra, shows the evolution of the continental shelf of the South China Sea and how the
shelf was formed. At “d3” is where the current geological formation of Spratly can be found on
top of the Philippine continental shelf.

Several well data (Figure 8.0) indicate that Spratly (KIG) is underlain by similar lithologic
formations, therefore, it can be argued that Spratly is the submerged natural extension of the
Palawan landmass.[115]

G. Procedure For Filing The Philippine Claim With UNCLOS

The Philippines must submit to the Secretary General of the United Nations the charts and
otherrelevant information, including geodetic data, permanently describing the outer limits of its
continental shelf.[116] The Philippines is also required to provide to the Commission on the
Limits of the Continental Shelf (CLCS) all information on the limits of the continental shelf
beyond the 200 nautical miles from the baseline from which the breadth of the territorial sea is
measured and theCLS will make recommendations to the coastal States on matters related to the
establishment of the outer limits of the continental shelf.[117] Where a coastal State intends to
establish the outer limits of its continental shelf beyond 200 nautical miles from the baselines
from which the breadth of the territorial sea is measured, it shall submit particulars of such limits
to the Commission on the Limits of the Continental Shelf (CLCS) along with supporting
scientific and technical data as soon as possible.[118] The preliminary procedure is shown in
Figure 9.0.

Figure 7.0

Schematic geologic cross sections across the South China Sea with evolutionary stages off North
Palawan (stage a-d) and off South Palawan

(d1-d3)[119]

Figure 8.0

Bathymetric Map Showing the Extended Continental Shelf[120]

To establishing its outer limits, the Philippines must submit information on its outer limits to the
CLCS established under Annex II of the UNCLOS for its recommendation. The original deadline
for submission, which provided 10 years to each coastal State, commenced on 13 May
1999.[121] The final limits of the shelf established by a coastal State on the basis of the
recommendation of the CLS shall be final and binding.[122] State parties to the UNCLOS
created the CLCS to further aide the littoral states in agreeing to the outer limits of their
continental shelf. CLCS aims to provide scientific and technical advice in the preparation of all
geodetic, bathymetric, geophysical, and other methodologies required by Article 76.[123] More
importantly, CLCS is tasked to assess the validity of such information used by the coastal state in
substantiating its claim over the extended continental shelf.[124] The CLCS consists of 21
members, who are experts in the field of geology, geophysics, and hydrography, elected by
States Parties to the UNCLOS from among their nationals, having due regard to the need to
ensure equitable geographical representation, who shall serve in their personal capacities. The
submitting State shall also include in their submission the names of any Commission members
who have provided it with scientific and technical advice.[125] To date, the CLCS has already
received submissions from the Russian Federation, Brazil, Australia, Ireland and New Zealand.
CLCS has already made recommendations on the submission by Russian Federation.[126]

The initial procedure requires the Philippines to comply with the required submission in Annex
II before 9 May 2009. Failure of a coastal state to submit the necessary information to CLCS on
or before the deadline will have adverse legal repercussions on its claim. Furthermore,
submissions related to disputes between coastal states shall be governed by Annex I of
CLCS/40.[127]
Figure 9.0

Initial Procedures of the CLCS[128]

In light of the extensive scientific and legal work required for the submission, the Philippines is
at risk of running out of time. While the National Mapping and Resources Information Authority
(NAMRIA) has completed most of the geological information, the Philippine government has
yet to establish a cohesive legal strategy for winning its claim.

The establishment of a legal team and strategy will be more critical after the actual submission. It
is at this stage where the deliberations on the validity of the claim in the CLCS are conducted. As
shown in Figure 10.0, the Commission will conduct deliberations and evaluations over the
submission of each coastal state and will conduct consultations among the claimants prior to
rendering its recommendation to the Secretary-General. A favourable recommendation from the
CLSCS is critical since the outer limits of the continental shelf established by a coastal State on
the basis of the recommendation of the Commission shall be final and binding, as provided by
Article 76 (8).[129] Unfortunately, the provision of Article 76 (8) maybe construed as not
granting the CLCS judicial authority to decide on the merits of the claims. As worded, it seems
that the recommended outer limits of the continental shelf will only be binding if the coastal
states adapt and recognize such limits. It can be deduced that any recommendation made by
CLCS on the outer limits that is met with resistance from any of the coastal states through
diplomatic protest or inaction to accept such recommendation will render it ineffective.

Nonetheless, even if the binding nature of the recommendation of the CLCS is in question, the
weight of its authority will be influential in any subsequent arbitration between claiming states.
Furthermore, the acceptance of the CLCS of the outer limits of the continental shelf of the
Philippines is a prerequisite to making it final and binding.[130] In other words, the submission
of the Philippines to the CLCS is a necessary but disputable condition to finalizing its claim.

Figure 10.0

Deliberation Procedure in the CLCS[131]

VII. Other Bases For The Philippine Claim On Spratly

The basis for the Philippine claim on Spratly evolved from historical evidence and geopolitical
considerations to the exact sciences of geology and geophysics. The indisputable proof of the
location of Spratly and the exacting method advocated by UNCLOS in its determination should
make the claim an open and shot case. To highlight the significance of Article 76 to the cause of
the Philippines, the other bases for the claim will be discussed below.

A. Discovery

As discussed earlier, in 1956, Thomas Cloma “discovered” and claimed the Kalayaan Islands
Group (KIG, also known as Spratly) and established several colonies on them. While no
government ever recognized the lawfulness of this “state,” Cloma persisted with his claim until
1974, when “ownership” was officially transferred under a “Deed of Assignment and Waiver of
Rights” to the Philippine government. In 1978 the Philippine government officially claimed the
KIG through Section 1 of P.D. 1596[132] where the metes and bounds of the KIG were
explicitly highlighted, which placed the KIG under the province of Palawan. Cloma’s
‘discovery’ of KIG and its subsequent acquisition of the Philippines are the foundation of the
Philippine claim on Spratly premised on discovery.

Unfortunately, while discovery is the oldest mode of acquiring title to territory, it does not per se
confer legal title unless the requisites of possession and administration are present.[133] Modern
international law clearly recognizes that mere discovery of some territory is not sufficient to vest
in the discoverer valid title of ownership to territory. Rather, discovery only creates inchoate
title, which must be perfected by subsequent continuous and effective acts of occupation,
generally construed to mean permanent settlement. [134] The use of discovery as basis for the
claim is further weakened by the fundamental question of whether proof of historical title today
carries sufficient legal weight to validate acquisition of territory.

B. Proximity And National Security

In many instances, the Philippines have cited proximity and national security as bases for
claiming Spratly. On 15 May 1950, the government stated that it should occupy the Spratly
Islands together with the United States because it was closer to Palawan compared to China and
Vietnam. On May 17, President Quirino said that if the Chinese Kuomingtang troops really
occupied the Spratly, then the Philippines did not need to occupy them. However, if the islands
fell into the communist’s hands, the Philippine’s security is threatened. Spratly should then
belong to the nearest country according to international law, which is the Philippines. In
February 1974, the Philippine government stated that the its forces already occupied five islets of
the Spratly. It justified its occupation as “the strategic importance of the Kalayaan area to the
Philippine security.”[135]

There is no international law providing that geographical proximity and the national security
theory may be used to justify the Philippine claim to the Spratly group of islands.[136]
Furthermore, using proximity as basis for the claim will be far from prudent given that many
isolated islands in the Sulu Sea are much closer to Borneo than to the Philippines. An argument
based on proximity will have adverse effects on other territorial disputes.

National security, on the other hand, is an untenable legal basis for the Philippine claim to the
Spratly islands as this essentially requires military action. At present, the Philippines is in no
position to back up any military posturing against the other claimants.

VIII. Stumbling Blocks

Article 76 and Annex II of the UNCLOS clearly define the legal and scientific framework for
coastal States to establish their claims over their continental shelves, either mandatory or
extended. CLCS/40 and its pertinent annexes have provided the clear procedure for a coastal
state to make a valid submission. The Philippines rights will be adequately resolved with
empirical scientific proof of its claim over the underlying extended continental shelf that
contains the Spratly. Unfortunately, while the law and the science are clear, the overall legal
strategy of the Philippine government is yet to be crafted. As the deadline for the submission to
the CLCS nears, the Philippine claim has yet to overcome some critical issues less it forfeits its
right to the Spratly.

A. Lack Of Government Support For The Claim

As of the writing of this paper, no State claimants to the Spratly have formally submitted their
claim to the CLCS.[137] Nonetheless, the government must prioritize the immediate completion
of the information required by the CLCS. Inspite of the rapidly approaching deadline for the
submission to the CLCS and the extensive legal and scientific research needed, the Office of the
President only released E.O. 612 on 27 March 2007, which reorganized the DFA-MOAC[138]
into the CMOA[139] under the Office of the President. The CMOA is tasked to complete the
Submission for the CLCS. Almost eight years had passed from the 13 May 1999 agreement to
submit the necessary information to the CLCS. This highlights the government’s lack of focus
and priority in substantiating the Philippines’s claim to its extended continental shelf.

The multi-agency commission consists of NAMRIA, the Department of Foreign Affairs, and the
Department of Justice. NAMRIA has almost completed the technical work and is ready to
turnover all its scientific information to the DFA and DOJ for their reference. The DFA must
work quickly on the diplomatic front and engage the other claimants in bilateral and multilateral
talks.

The DOJ, on the other hand, must prepare the brewing international confrontation in the ITLOS.
Due to the vast importance of the Spratlys to all the claimants owing to its unique geography and
natural resources, it is unlikely that all claims by the other States will be abandoned in favor of
the Philippines. Hence, it is more probable that the DOJ will seek an international arbitral award
in order to secure whatever rights may accrue to the Philippines based on Article 77. Other
Parties may be able to bring disputes to be solved under binding dispute settlement mechanisms,
such as the International Tribunal for the Law of the Sea (ITLOS) in Hamburg.[140] The
Philippines is still unprepared for any international confrontation in ITLOS or ICJ.

B. The Risk Of Breach Of UNCLOS

A careful scan of the provisions of the UNCLOS and its annexes do not contain any provision
that will penalize a coastal state to lose its claim over its continental shelf for failure to submit to
the CLCS. Nonetheless, the failure to do so will result in the breach of the Philippines of its
fundamental international obligation to adhere to the rules of the UNCLOS.[141] Such a
breach[142] of international obligation will be detrimental to any future arbitration involving the
Philippine claim over Spratly.

C. Exception To Compulsory Procedures Of UNCLOS

UNCLOS provides for compulsory procedures for resolving inter-State conflicts. This
mechanism is provided in Section 2 of Part XV of the UNCLOS which provides that where no
settlement has been reached through peaceful means, any dispute concerning the interpretation or
application of the UNCLOS shall be submitted at the request of any party to the dispute to the
court or tribunal having jurisdiction as provided in the same section. Unfortunately Section 3 of
Part XV also provides for limitations and exceptions to the applicability of the compulsory
procedures in Section 2. Specifically, Article 298(1) provides that a party state may declare in
writing that it does not accept any one or more of the compulsory procedures and binding
settlements over disputes concerning interpretation or application of Article 83[143] relating to
sea boundary delimitations including issues on delimitations of continental shelves between
opposite or adjacent states. This will essentially leave the resolution of the conflict in Spratly to
diplomatic avenues of bilateral or multilateral negotiations and agreements between the State
claimants. These provisions may effectively cut the legal remedy of the Philippines and
transpose it to the realm of pure diplomacy.

D. China’s Talk And Take Strategy

In the course of this research, it was discovered that there is an overwhelming effort on the part
of the Chinese government to generate international support for its claim on Spratly. This is
evident in the many websites featuring the South China Sea conflict and China’s alleged rightful
claim on Spratly. Furthermore, while China continues to aggressively take the diplomatic route,
it continues to fortify its military installation in the Mischief Reef. China is iron-willed in
maintaining its highly questionable ‘nine-dash line’ that has re-drawn China’s territorial boarder
to substantially include almost all of the South China Sea including the Spratly.[144] This is
inconsistent with the 12 nautical mile territorial sea limitation of UNCLOS.[145]

It is very likely that China will submit its claim to CLCS but knowing fully that its claim stands
on shaky ground with Article 76, it will simultaneously embark on military adventurism in the
area of Spratly. It will be to China’s advantage to bully each of the claimants to negotiate with it
on bilateral talks rather than in multilateral discussions so as to assert its dominance. It is latently
obvious that China will resort to military aggression if diplomacy fails.

IX. Conclusion And Recommendations

The provisions of Article 76 are clear and the scientific data gathered through remote sensing
and other geo-mapping applications indicate that the Spratly is within the Philippines’ extended
continental shelf. The technical work required by Article 76 has been substantially completed by
NAMRIA. What remains is the legal and diplomatic work by the Department of Justice and
Department of Foreign Affairs on their respective domains.

A. Government Legal Strategy Must Be Crafted

The scientific process required by CLCS is as complex as the legal preparation that the
government must embark on. Not only will the legal team be required to be trained in the
technology and methodologies of UNCLOS, they will also be tasked to map out the permutations
of legal strategies.

To highlight the complex legal scenarios facing the Philippine legal team, the procedure for the
claims will vary depending on the success of each of the claimant’s submission. The ideal
scenario, for example, is for the Philippines to submit on time while the other claimants default
in their submission to the CLCS. If the CLCS agrees with the Philippine submission and no
diplomatic protest is filed by the other claimants, the established outer limits of the extended
continental shelf will be final and binding. This will give the Philippines undeniable rights over
Spratly. On the other extreme, if the Philippines defaults in its submission and the other
claimants are successful, then the Philippines must resort to filing a diplomatic protest to prevent
any agreed limits to become final and binding. Should the other claimants proceed to arbitration,
the Philippines may then invoke Article 298(1) to prevent further arbitration proceedings. In
between these two extreme scenarios are the permutations of the success or default of the other
claimants. Note that there are differences in the specific islands claimed by the claimants as well
as differences in their legal positions.

B. Legislative Action

In order to reinforce the Philippine position with UNCLOS, all the relevant laws pertaining to
our maritime boundaries must be amended to exactly conform to the standards and prescriptions
of UNCLOS, particularly PD 1596 and RA 3046 as amended by RA 5446.

X. Summary

At the centre of the tapestry of conflict in the South China Sea is the Spratly group of islands. In
order to unravel the conflict, the international community, together with the affected coastal
states, has ratified and adopted UNCLOS. Article 76 of UNCLOS, pertaining to the delimitation
of the continental shelf, has provided the means to untangle the conflict.

Article 76 of UNCLOS and its related annexes provided both the forensic bases and the
procedural rules for determining the empirical evidence in establishing the Philippine claim over
Spratly. Unfortunately, it also sets a deadline for the submission of the claims of the coastal
states to the CLCS, which is on 13 May 2009. If the Philippine government fails to submit its
claim to the CLCS, it will most likely result in the possible forfeiture of the Philippines’s right
over the Spratly. As the deadline rapidly approaches, the Philippine government must
immediately put together its legal and diplomatic strategy to complement the incontrovertible
geological, geophysical, geographical, and hydrographical research that places the Spratly as part
of the extended continental shelf of the Philippine archipelago.

The legal work needed involves both legislative and executive actions in amending needed
legislation that will further align our laws with UNCLOS. More legal research must be
encouraged in the area of international arbitration and territorial rights claims based on treaty or
convention rules. Extensive legal study on Article 76 and its application must be further
encouraged.

Finally, the Philippine government must promptly prioritize the completion of it submission to
the CLCS before the stated deadline. It must immediately designate the legal team that will
prepare for the possible arbitration process with the ITLOS.
In fine, winning the claim on Spratly is not a mere acquisition of a handful of islands endowed
with vast oil and hydrocarbon deposits. Securing the Spratly will preserve the Philippines
territorial sovereignty and keep intact its dignity in the international community. To lose the
claim would simply be tantamount to a capitulation to the chaos of the sea.

- o0o -

* Cite as Henry Aguda & Jesusa Arellano-Aguda, The Philippine Claim over the Spratly Group
of Islands: An Application of Article 76 of UNCLOS, 83 Phil. L.J. 573, (page cited) (2009).

** J.D., Class Valedictorian, Cum Laude, University of the Philippines (2008); B.S.
Mathematics, University of the Philippines (1988); First Vice-President and Chief Information
Officer, Digital Telecommunications Holdings, Inc.

*** J.D., Class Salutatorian, Cum Laude, University of the Philippines (2008); B.S. Business
Administration and Accountancy, Cum Laude, University of the Philippines (2002); Legal
Assistant, SyCip Salazar Hernandez & Gatmaitan.

[1] ICE Case Study: Spratly Island Dispute, Case No. 21 (May 1997), available at
http://www.american.edu/projects /mandala /TED /ice/spratly.htm.

[2] Energy Information Adminstration, Official Energy Statistics from the U.S. Government, at
http://www.eia.doe.gov/cabs/South_China_Sea/Background.html. (last modified Mar. 2008).

[3] Supra, note 1.

[4] See H. W. French, China’s Boom Brings Fear of an Electricity Breakdown, New York Times
(5 July 2004)- wherein China is the second largest consumer of energy yet its per capita
consumption is only 10% of the per capita consumption of USA. This situation reflects its
immense need for additional energy.

[5] The most serious of these incidents was in 1974 when China invaded and captured the
Paracel Islands from Vietnam; and again in 1988 where Chinese and Vietnamese navies clashed
at Johnson Reef resulting in the sinking of several Vietnamese boats and the death of 70 sailors.
(supra note 1.)

[6] ICE Case Study, supra note 1.

[7] A. Ruth and R. Jimenez, China Fortifies Hold on Spratlys, Manila Times, (Jan. 21, 1999)

[8] ASEAN Declaration On The South China Sea, July 22 1992).

[9] The ‘common heritage of man’ is a concept established by Grotius’s Mare Liberum, which is
res omnium communis and is incapable of appropriation. This is a concept that has been
attenuated by the technological progress of man enabling him to conquer what was once a vast
ocean. Such is the previously unattainable realm of the sea that UNCLOS aims to set governing
rules for the whole of humanity.

[10] Merlin Magallona , International Law Issues in Perspective 212 (1996).

[11] D. O’Connell, The International Law of the Sea 1 (1992), as cited by P. E. Steinberg, Three
Historical Systems of Ocean Governance: A Framework for Analyzing the Law of the Sea, 12
World Bull. 5-6, 1 (Sep. – Dec. 1996).

[12] UN Division for Oceanic Affairs and the Law of the Sea Office of Legal Affairs,Training
Manual for delineation of the outer limits of the continental shelf beyond 200 nautical miles and
for preparation of submissions to the Commission of the Limits of the Continental Shelf I-2
(2006).

[13] Id.

[14]United Nations Convention on Law of the Sea (hereinafter “UNCLOS”), available at

http://www.eoearth.org/article/United _Nations_
Convention_on_Law_of_the_Sea_(UNCLOS),_1982(1982)

[15] The Philippines signed the UNCLOS on 10 December 1982 and ratified the same on 8 May
1984.

[16] Supra note 12.

[17] H. Pak, The Law of the Sea and Northeast Asia: A Challenge for Cooperation 1 (2000).

[18] UNCLOS, supra note 14.

[19] Pak, supra note 17.

[20] UNCLOS, supra note 14.

[21] Id.

[22] Pak, supra note 17.

[23] Id.

[24] Id.

[25] Supra note12.

[26] Id.

[27] Id.

[28] UNCLOS, supra. note 14

[29] Pacta sunt servanda, Vienna Convention on the Law of Treaties , (1969) art. 26.

[30] International Law Governing Driftnet Fishing on the High Seas at

http://www.earthtrust.org/dnpaper /intllaw.html. Examples of provisions codified as customary
international laws are: conservation measures to protect the living resources of the high seas,
(articles 116, 117, 118, 119, 120), to co-operate and enter into negotiations with “States whose
nationals exploit identical living resources, or different living resources in the same area,”
(article 118); “to maintain or restore populations of harvested species at levels which can
produce the maximum sustainable yield, as qualified by relevant environmental and economic
factors,” (article 119); and to conserve and manage marine mammals in the high seas (article
120).

[31] UNCLOS, supra note 14.

[32] A. Aust, Handbook of International Law 7 (2005).

[33] ICJ Statute, art. 38(1)(b).

[34] J. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, Vol. 1,

xxxii (2005).

[35] M. M. Magallona, Fundamentals of Public International Law 18 (2005).

[36] Spratly Islands, at http://www.globalsecurity.org/military/world/war/spratly.html.

[37] Id..

[38] Id..

[39] Id..

[40] ICE Case: Spratly Island Dispute, supra. note 1

[41] Spratly Islands, supra note 36.

[42] R. Heinemann, The Spratly Islands Dispute, at

http://www.reedbooks.com.au/heinemann/hot/sprat.htmlcited inICE Case: Spratly Island
Dispute, note 1, supra.

[43] Spratly Islands, supra note 36.

[44] J. Kiras, The South China Sea: Issues of a Maritime Dispute, Peacekeeping & International
Relations, 3-4, (Jul/Aug 1995)

[45] N. Marsh,. The Spratly Islands Dispute. at

http://snipe.ukc.ac.uk/international/dissert.dir/marsh.html.

[46] Spratly Islands, supra note 36.

[47] Supra note 2.

[48] Supra note 10, at 202.

[49] Id..

[50] Files from N.R. Aguda, geologist, Pacific Consultants Incorporated Philippines.

[51] The Philippines’ Illegal Claim in the Spratlys (Spratly Islands), The Lies and the Groundless
Invasion into China’s Spratly Island of South China Sea , at http://www.spratlys.org/
collection/claims/philippines.

[52] Coquia, 1990: 119, cited in D. Dzurek and C. Schofield, The Spratly Islands Dispute: Who’s
on First?, 2 IBRU Maritime Briefing, 1, 14 (1996).

[53] Supra note 51.

[54] Id..

[55] Id.

[56] Drigot, 1982: 44, cited in D. Dzurek and C. Schofield, supra note 52.

[57] Spratly Islands at http://en/ wikipedia.org/wiki/Spratly_Islands.

[58] Supra note 51.

[59] Id..

[60] A. J. Gregor, In the Shadow of Giants, the Major Powers and Security of Southeast Asia 91-
92 (1989), cited in supra note 51.

[61] H. Yorac, The Philippine Claim to the Spratly Islands Group, 53 Phil. L.J. 2 (1983).

[62] Supra note 51.

[63] Id.
[64] Spratly Islands, supra note 57.

[65] C. Hurng Yu, The South China Sea Islands’ Sovereignty and International Conflicts, 89
(1987), cited in note 49, supra.

[66] Supra note 51

[67] A.S.P. Baviera ed., The South China Sea Disputes: Philippine Perspectives (1982), cited in
supra note 51

[68] Spratly Islands, supra note 57.

[69] D. Dzurek, supra note 52.

[70] Spratly Islands, supra note 36.

[71] Chou Ch’u-fei, Ling-Wai- tai-ta (Information on What Lies Beyond the Passes, 1178), cited
in Samuels, Contest for the South China Sea, 15–16; and Shao Hsun-Cheng, “Chinese Islands in
the South China Sea,” People’s China 13 (1956): 26. cited in C. Joyner, The Spratly Islands
Dispute in the South China Sea: Problems, Policies, and Prospects for Diplomatic
Accomodation, at http://www.southchinasea.org/docs/ Joyner
,%20Spratly%20Islands%20Dispute.pdf.

[72] Samuels, supra. Appendix C; Chi-Kin Lo, China’s Policy Toward Territorial Disputes, 30,
cited in C. Joyner, supra note 71.

[73] The Law of the People’s Republic of China on the Territorial Sea and Contiguous Zone
became effective on 25 February 1992. See People’s DailyBeijing, 26 February 1992, 4,
reprinted in UN Law of the Sea BulletinNo. 21, pp. 24–27 (August 1992).

[74] J. C. Baker, et al., Cooperative Monitoring Using Commercial Observation Satellites: Case
Study of a Transparency Regime for the South China Sea Disputes (1999), cited in C. Joyner,
supra note 70.

[75] C. Joyner, supra note 71.

[76] P. Kien-hong Yu, “Reasons for Not Negotiating on the Spratlys: A Chinese View from
Taiwan,” cited in C. Joyner, Id..

[77] J.C. Baker, supra note74.

[78] C. Joyner, supra note 71.

[79] Id.

[80] Vietnam, 1988:4, cited in D. Dzurek and C. Schofield, supra note 52 at 8.

[81] J.C. Baker, supra note 74.

[82] Id.

[83] K. Muhamed and T. Shamsul Bahrin, “Scramble for the South China Sea: The Malaysian
Perspective,” in Hill et al., Fishing in Troubled Waters, 237–250, cited in C. Joyner, supra. note
71.

[84] H. Djalal and I. Townsend-Gault, Preventive Diplomacy: Managing Potential Conflicts in

the South China Sea, at http://www.faculty.law.ubc.ca/scs cited in C. Joyner, supra note 71.

[85] South China Sea, available at

http://www.eia.doe.gov.emeu/cabs/South_China_Sea/Background.html.

[86] Supra, .note 12.

[87] ‘The rights of the coastal state in respect to the are of the continental shelf that constitutes
the natural prolongation of its land territory into and under the sea exist ipso facto and ab initio,
by virtue of its sovereignty over the land, and as an extension of it in exercise of sovereign rights
for the purpose of exploring the seabed and exploiting its natural rights. In short there is here an
inherent right.’ [North Sea Continental Shelf Case (Federal Republic of Germany / Denmark;
Federal Republic of Germany /Netherlands), ICJ (1969) par.3.]

[88] ‘In short, continental shelf rights are legally both an emanation from and an automatic
adjunct of the territorial sovereignty of the coastal State’ (Aeagean Sea Continental Shelf Case,
ICJ, (1978) par. 86).

[89] North Sea Continental Shelf case, supra note 87 at 229.

[90] Id..

[91] Supra, note 12 at I-3.

[92] Id.

[93] Available at http://www.gmat.unsw.edu.au/currentstudents/ug/projects/baltyn/marzon1.jpg

[94] Art. 75, par. 1 defines the continental margin, which comprises the submerged prolongation
of the land mass of the coastal State and consists of the sea-bed and subsoil of the shelf, the slope
and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil
thereof.

[95] Art. 47 sets the criteria for the establishment of the archipelagic baseline which requires that
(i) such baselines include the main islands of the archipelago, and (ii) within which such
baselines that ratio of the area of the water to the land, including atolls, be between 1 to 1 and 9
to 1.
[96] Supra note 12at I-4.

[97] Supra note 12atI-3.

[98] 1987 Philippine Constitution, Art. III- National Territory – The national territory comprises
the Philippine archipelago, with all the islands and waters embraced therein, and all other
territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial,
fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular
shelves, and other submarine areas. The waters around, between, and connecting the islands of
the archipelago, regardless of their breadth and dimensions, form part of the internal waters of
the Philippines.

[99] H. Yorac, The Philippine Claim to the Spratly Islands Group, 53 Phil. L. J. 2, (1983).

[100] UNCLOS, Art. 77.

[101] M. M. Magallona, supra note 35 at 436.

[102] Supra note 12 atI-25.

[103] UNCLOS, Art. 76 (1).

[104] Id, at Art. 76 (4).

[105] Id, Art. 76 (5).

[106] Id, Art. 76 (6).

[107] Id, Art. 47.

[108] Id, Art. 3.

[109] Id, Art. 33.

[110] Id, Art. 48,57.

[111] Id, Art. 76 (1).

[112] Available at http://discoveryindonesia.com/images/fig1.jpg.

[113]Based on interviews with Engr. Nancy Aguda, Geologist, and Engr. Jenny Barreto,
Geophysicist, of Pacific Consultants Incorporated Philippines

[114]L. Zamoras and A. Matsuoka, Malampaya Sound Group: A Jurassic-Early Cretaceous

Accretionary Complex in Busuanga Island, North Palawan Block (Philippines), 107 Journal of
the Geological Society of Japan, 5, 316-336 (2001).
[115] Based on consultation with Engr. Jenny Barreto, Geophysicist.

[116] UNCLOS. Article 76 (9),

[117] UNCLOS, Art. 76 (8).

[118] CLCS/40, Rule 45 – Submission by a Coastal State, 2 July 2004.

[119] H.U. Schlüter, K. Hinz, and M. Block, Tectono-Stratigraphic Terranes and Detachment
Faulting of the South China Sea and Sulu Sea, Marine Geology, v. 130, 39-78 (1996).

[120] The bathymetric map above shows seafloor depth with respect to mean sea level; available
at http://www.ngdc.noaa.gov/mgg/gebco.

[121] International Symposium on Scientific and Technical Aspects on the Establishment of the
Outer Limits of the Continental Shelf beyond 200 Nautical Miles, at http://www.mofa.go.jp
/policy/maritime/symposium/shelf0603.pdf. (updated as of February 2006)

[122] UNCLOS, Art. 76 (8).

[123] K. Hinz, The Law of the Sea System: Some major features of high relevance for marine
scientific researchers and explorations, AAPG Hedberg Conference, Hannover, Germany.

[124] Id.

[125] Rule 45 (b), CLCS/40.

[126] Id.

[127] Rule 46, CLCS/40.

[128] H. Brekke, member of the CLCS, The Modus Operandi of CLCS at

http://www.continentalshelf.org.

[129] CLCS/40, Rule 53.

[130]Questions and answers: The Continental Shelf, at
http://www.regjeringen.no/nb/dep/ud/dok/lover_regler/retningslinjer/2006/Questions-and-
answers-The-continental-Shelf.html?id=436938.

[131] H. Brekke, supra note 128.

[132] “Declaring Certain Areas of the Philippine Territory and Providing for their Government
and Administration.”

[133] J. R. Coquia and M. Defensor Santiago, International Law 259-260 (1998); I. A. Cruz,
International Law, 110 (2003).

[134] H. Roque, Jr, “China’s Claim to the Spratlys Islands Under International Law,” Journal of
Energy & Natural Resources Law J (1997): 189–211, cited in Joyner, supra note 71.

[135] Supranote 51.

[136] Id.

[137] Scan of the CLSC websites shows no submissions yet by the claimants of Spratly.

[138] Maritime and Ocean Affairs Center.

[139] Commission on Maritime and Ocean Affairs.

[140] The World Conservation Union , The Status of Natural Resources on the High-Seas, 80
(IUCN).

[141] The Tenth Meeting of State Parties to the Convention agreed to defer the final date for
presenting a Submission to 13 May 2009 for states that had ratified the UNCLOS prior to 13
May 1999. (Commission on Limits of Continental Shelf concludes 13 sessions, UN Press
Release, May 24, 2004, at http://www.un.org/ News/Press/docs/2004/sea1793.doc.htm).

[142] Article 60(3(b)), Vienna Convention on the Law of Treaties (1969) defines such action as a
material breach by an act the defeats the accomplishment of the object or purpose of a treaty.

[143] Delimitation of the continental shelf between States with opposite or adjacent coasts

1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall
be effected by agreement on the basis of international law, as referred to in Article 38 of the
Statute of the International Court of Justice, in order to achieve an equitable solution.

2. If no agreement can be reached within a reasonable period of time, the States concerned shall
resort to the procedures provided for in Part XV.
3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of
understanding and co-operation, shall make every effort to enter into provisional arrangements of
a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of
the final agreement. Such arrangements shall be without prejudice to the final delimitation.

4. Where there is an agreement in force between the States concerned, questions relating to the
delimitation of the continental shelf shall be determined in accordance with the provisions of that
agreement.

[144] C. W. Pumphrey, ed., The Rise of China in Asia: Security Implications, 235 (1982).

[145] Id..