The contentions between states as to the ownership of the Spratlys are as follows;
China - by “historic rights and legal title”. The legal title they referred to is the “Treaty of San Francisco” signed in 1951 by Japan. Since China, considers Taiwan as Province. What is claim by Taiwan is all part, a territory also of China. Historic rights as early as the Han Dynasty.
Taiwan - historic (same with China) and transferred rights but it was unclear in the Treaty if the Spratly Island is one of the islands being mentioned in the treaty.
Philippines - by virtue of discovery of Tomas Cloma and within the EEZ and by the doctrine of “res nullius” or nobody’s property (nobody home).
Vietnam – by historic rights in the 17th century from ancient Chinese text and French possession of the island when Vietnam was still a colony of France and within the EEZ
Brunei, Malaysia - within their EEZ.
Consider the following facts regarding the Spratlys;
Before discovery - used as encampment by fishermen and traders.
29 March 1843 – discovered by British Captain Richard Spratly which the island was named after him and published his survey in Nautical Magazine and Naval Chronicle.
1917, a Japanese company began exploiting some of the guano deposits on the Spratly islet
1933 - France asserted its claim to the islands when it occupied its former colony Vietnam.
1935 – Republic of China through then the Kuomintang also asserted its claim to these islands.
1939 - Japan had established a strong presence, using Itu Aba Island as a submarine basing area to intercept shipping through the region.
1945 – Japan following its defeat in World War II left the islands.
November 1946 - In response to the Chinese landing forces and erecting sovereignty markers on Itu Aba Island, France dispatched warships on several occasions to the archipelago.
1947 - France demanded the withdrawal of all Chinese troops from the Itu Aba Island but did not take any steps to forcibly evict them from the archipelago
1948 – Chinese forces withdraw from Spratlys
1951 – Japan signs Treaty of San Francisco that renounces sovereignty of all right, title and claim to all islands it once possess ( the basis of Taiwan claim but the treaty does not assign the Spratly island to any specific country ).
1954 – France withdraws from Indochina (Vietnam, Cambodia and Laos). Vietnam was divided in North and South Vietnam.
15 May 1956 – Tomas Cloma issued a "Proclamation to the Whole World" In it he claimed "ownership, by discovery and occupation, of all the territory, of the 33 islands, sand cays, sand bars, coral reefs and fishing grounds of 64,976 square nautical miles" within the Spratly Archipelago. Cloma called this portion of the chain ‘Freedom land,' and appointed himself the Chair of the Supreme Council. Taiwan and Vietnam protested.
1956 – Taiwan reoccupied Itu Aba Island because of the announcement of Cloma.
1958 – Vietnam Prime Minister Pham Van Dong sent a note verbale to Zhou Enlai of China to assert Vietnam claim to the Spratlys.
1968 – Philippines sent troops to the Spratlys.
1971 – Malaysia also claims the Spratlys.
1974 - China seized the Paracels from Vietnam, with 18 of its troops killed in clashes on one of the islands.
1978 - Marcos issued PD 1596 and PD 1599 and proclaimed formal ownership and renamed these islands as Kalayaan Group of Islands.
1979 - Malaysia following Marcos claim published also a map of its continental shelf claim that encompasses 12 features of the Spratlys.
1982 – UNCLOS was signed. UN treaty that expands from 12 to 200 nautical mile territorial limit that a country can explore the natural resources of its territorial sea and continental shelf. Philippines occupied more islands and constructed an airstrip at Kalayaan.
1982 - Vietnam quietly began to occupy several islets in the archipelago and to construct military installations, including an airstrip upon Paracel Island.
1983 - Malaysia also enforced its claim by landing troops at Swallow reef and built a resort.
1988 - Chinese and Vietnamese navies clashed at Johnson Reef in the Spratlys. Several Vietnamese boats were sunk and over 70 sailors killed. China grabs another 7 islands of the Spratlys.
February 25, 1992 - China's promulgation of its "Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone" which specifically identifies the Nansha (Spratly) Islands as Chinese territory.
1992 - Vietnam accused China of landing troops on Da Luc Reef. China seized almost 20 Vietnamese cargo ships transporting goods from Hong Kong from June - September.
1994 - China and Vietnam had naval confrontations within Vietnam's internationally recognized territorial waters over Vietnam's Tu Chinh oil exploration blocks 133, 134, and 135. Chinese claim the area as part of their Wan' Bei-21 (WAB-21) block.
1995 - China occupied Philippine-claimed Mischief Reef. Philippine military evicted the Chinese in March and destroyed Chinese markers. In July 1995, a Chinese patrol boat stopped and inspected two Taiwan fishing boats in the Spratly area.
1995 - Taiwanese artillery fired on a Vietnamese supply ship.
1996 - In January, Chinese vessels engaged in a 90-minute gun battle with a Philippine navy gunboat near the island of Capones, off the west coast of Luzon, north of Manila.
1997 - The Philippine navy ordered a Chinese speedboat and two fishing boats to leave Scarborough Shoal in April; the Philippine navy later removed Chinese markers and raised its flag. China sent three warships to survey the Philippine-occupied islands of Panata and Kota.
1998 - Vietnamese soldiers fired on a Philippine fishing boat near Tennent (Pigeon) Reef.
May, 1999 - Chinese warships were accused of harassing a Philippine navy vessel after it ran aground near the Spratlys. Chinese fishing boat was sunk in a collision with Philippine warship. In July, another Chinese fishing boat was sunk in a collision with a Philippine warship.
1999 - Vietnamese troops fired upon a Philippine air force plane on reconnaissance in the Spratlys.
1999 - In October, Philippine defence sources reported that 2 Malaysian fighter planes and 2 Philippine air force surveillance planes nearly engaged over a Malaysian-occupied reef in the Spratlys. The Malaysian Defence Ministry stated that it was not a stand-off.
2000 - In May, Philippine troops opened fire on Chinese fishermen, killing one and arresting 7.
2001 - During first three months, the Filipino navy boarded 14 Chinese flagged boats, confiscated their catches, and ejected vessels out of contested portions of the Spratlys.
2001 - In March, the Philippines sent a gunboat to Scarborough Shoal to, "to ward off any attempt by China to erect structures on the rock".
2002 - In August, Vietnamese troops fired warning shots at Filipino military reconnaissance planes circling over the Spratlys. ASEAN and China signs code of conduct.
2008 – Taiwan President Chen Shui-bian becomes the 1st head of the state to visit the Spratlys.
What is the basis and justification of China claim?
According to Beijing, they are claiming the Spratlys as part of the 2,000 year old history as a navigational route during the Han dynasty (206-220 A.D.) It is said that Tombstones and household utensils from Emperor Tongzhi's reign of 1862-75 have been found on the islands. And traders from Hainan exchanged rice and other necessities for with fishers visiting the islands. In other words, the Chinese during that time are using the island as an encampment occasionally for rest and recreation especially if there is a typhoon approaching. But it was not only the Chinese who used Spratly as an encampment in the ancient century it was used also by Filipinos, Malays, Vietnamese, Persians and Arabs traders. And mere passageway is not ownership. There must be an exercise of sovereignty as what the Japanese did in 1939 and President Marcos did in 1974.
If there is a historical record at modern times who came to these island and exploited its natural resources. It was the Japanese, who in 1917 came to these islands to gather guano deposits. The Japanese occupied the Spratlys along with the Paracel Islands as a submarine based in 1939 and used as springboard toward the invasion of the Philippines. When the Japanese lost in WW II, and in 1951 they signed the Treaty of San Francisco and it was also during this time that an Ilocano Foreign Secretary Elpidio Quirino advocated for the Japanese to surrender the islands to the Philippines. The first time that our country, the Philippines express significant interest on these islands. In fact during the negotiations of the treaty the Soviets advocated for the return of the Spratlys to China but majority of the delegates rejected it. If there is any one to blame of the contending issues regarding the Spratlys. It was the Japanese. Why? Because they were the last one who possess these islands before the conflict began. From 1951 until now Japan is silent on whomever which country or countries among the claimants that they ceded the Spratlys after their defeat in World War II. The blame can be also put into the Allied Powers who influenced much the discussion of the Treaty of San Francisco or the San Franciso Peace Treaty. But all the delegates on this treaty recognized during that time that the real owner of the Spratlys are the Japanese and they must surrender it as part of the agreement. To whom? It was never defined and there the conflict began.
We begin possession of the contentious Spratly Island only after Marcos issued PD 1596 and PD 1599 in 1978 after a claim to have been discovered by PMI owner Adm. Tomas Cloma in 1956 and proclaim formal ownership and renamed these islands as Kalayaan Group of Islands. If by “virtue of discovery” of Tomas Cloma was our title to the ownership of Spratlys. Then could it can be also considered that the Spratly is also owned by the British. Because long before Tomas Cloma came to these islands in 1956, it was a British Captain named Richard Spratly and or his brothers Henry or William Spratly surveyed these islands in 1843 and published their works in Nautical Magazine which the island name came from and who first discovered these island in the modern world. The proclamation of Tomas Cloma “Notice ot the Whole World” as to his ownership of these island have no legal basis in the sense that before Cloma claim it was the French who asserted the claim to these islands as early as 1887 who first exercise physical presence of the Spratlys. In fact because of Cloma declaration it was the basis of Taiwan to re-occupy the largest Itu Aba Island in 1956. It should be also taken into account that when France lay claims to these islands. Long before Cloma discovered these islands, in fact in 1933, Japan was insisting to France at that time that they owned the Spratlys by virtue of discovery.
According to China, The Philippines has no right to claim the Spratlys because it was never ceded by the Americans from the Treaty of Paris in 1898 and also “historic rights” was never defined in our 1935 Constitution and that the Spratlys was intentionally included only in our 1987 Constitution defined as “internal waters” of the Philippine archipelago. In fact, they are citing one incident of Chinese fishermen caught in the Spratlys in 2000 and were acquitted by an Olongapo court. The judge ruled that they were captured beyond our national territory meaning beyond our jurisdiction.
Vietnam also claim the Spratly island (Truong SA) and the Paracels also by “historic rights” under King Le Thanh Tong [1460 - 1497]. And also because being a former colony of France which was the first country to exercise sovereignty and jurisdiction in the Spratlys. France asserted its claim in 1887 and is said to have built weather stations on the island before the outbreak of WW II. According to Vietnam, China has no right to claim the Spratlys and the Paracels because it was only in 1947 that China issued a map detailing its claims and Vietnam hotly disputes China’s account of “historic rights” saying in was only in 1940’s that China claimed sovereignty over the islands. After World War II, China till 1948 and Vietnam after China left are the only countries that held military control of the Spratlys until the Vietnamese were forced out by the Chinese in 1974.
Taiwan claim of the Spratlys because allegedly of the Treaty of San Francisco signed by Japan in 1951 which renounces their rights all the territories that they annexed before and during World War II. Another unambiguous “Treaty of Taipei” entered into by Japan and Taiwan in 1952 “reiterates the provision of the San Francisco Peace Treaty whereby Japan renounced all right, title, and claim to Taiwan and other associated islands”. But the other islands mentioned did not refer to the Spratlys. In fact China and Taiwan was never invited when the treaty was signed. Since China following the “One China policy”, claims the whole of Taiwan and whatever the territory of Taiwan therefore belongs all to China. One conflict between Japan and China is the Senkaku Island parts of Ryukyu island group (near Taiwan) annexed in 1895 in which a Chinese fishing boat collided a Japanese patrol boat and the Chinese crew were held in custody. As a consequence, China blackmailed Japan and issued a ban on rare earth export to Japan though they allowed the same exportation to U.S and Europe. Rare earths are essential for a wide variety of products, including wind turbines and smart phones, gasoline-electric hybrid cars, oil refining and the tiny electric motors that control the guidance fins on missiles and smart bombs which is 95% of the world trade supplies of this mineral comes from China forcing Japan to look for sourcing in Africa. When the US occupied Senkaku, China did not push for a claim to these island until it was reverted to Japanese control in 1971.
Malaysia and Brunei lay claim to the Spratlys because of their proximity to the territory as defined by the United Nations Convention on the Law of the Sea (UNCLOS) in 1982. Because of UNCLOS, WHILE THE LAW DEFINES, IT FURTHER COMPLICATES the issue regarding Spratlys. Instead of finding a solution to archipelagic boundaries between states it only worsens the situation. It is because of this UNCLOS that expands from 12 mile to 200 mile of the continental shelf of an archipelagic state that most members of the ASEAN, Taiwan and China have competing claim to the submerged reefs, rocks and islets of the Paracels and Spratlys. It is to be noted that the Philippines did not only have military confrontation with China but to other claimants as well like Taiwan, Malaysia and Vietnam. Philippines, Malaysia, Brunei and Vietnam signified their intention in some parts of the Spratlys within their EEZ limit and unlike China who claims the whole South China Sea as its territory.
Incidentally the U.S is one of the countries that did not ratify UNCLOS. Why did the US did not ratify the treaty? Because it does not serve well for the interest of the US, primarily because the US considers all the oceans in the world as part of the common heritage of mankind that the US can explore in the future. Since the US military rely heavily in ocean navigation the US fears that any country can pass a law within her EEZ denying the US of navigation and can subject a US ship passing its territory or the laying of surface or submerged submarine cables by US companies to royalty payments within their EEZ. The U.S maintain that it has every right to operate in international waters even belong to other states or within their 200 mile EEZ.
Contending parties primarily the ASEAN wants to resolve the ownership under the auspices of the United Nations as governed by the UNCLOS which China did not want to “internationalize” the issue. Following the 200 mile EEZ as defined by the UNCLOS, only a small portion of the Spratlys can be considered and be claimed by China as her territory. The Philippines assert that China cannot claim the Spratlys even by UNCLOS since China is not an archipelagic state. Following the lead role of ASEAN member Indonesia who is not a claimant in the Spratly but its Natuna island is also being claimed by China. ASEAN and China sign in 2002 a confidence building measure code of conduct. But it was only in paper. Because of China’s insistence and aggressiveness it can never be trusted. As China becomes stronger economically, it is also becoming dangerous militarily. It can never be trusted by her neighbours.
Who owns the Spratlys? You do not own what you do not possess. When we acquired the Kalayaan group, no countries ever exercise sovereignty or jurisdiction and military control to these islands. We officially claim the Spratlys following the doctrine or Res nullius (no owner). When China occupied Mischeef Reef in 1995, we complaint as if we do not understand the similar feelings and protests of Taiwan and Vietnam when we acquired Kalayaan in 1974. Ownership in international law means physical possession. One should have established sovereignty and jurisdiction to require ownership not only of the historic rights or legal title. From 1948 up to 1968, no country has ever occupied Spratlys except Taiwan and Vietnam until they were forced out by the Chinese and we conquered some part of it in 1968 and in 1971 Malaysia also does the same. Now, here comes China who wanted to possess some of the other uninhabited islands and now we are crying. What is our legal basis when we acquired Kalayaan in 1978 –isn’t also by force (military occupation and control) or through the law of the jungle? Does it make now any difference if China now does the same and occupy the Spratly also by forced?
Who owns the Spratlys? The occupier must be the real owner since nobody ever possess those island before then the law that is to be applied is the law of the jungle!
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