Features

Manila flexes its muscles in South China Sea dispute

The ROC government currently maintains a detachment of Coast Guard officers on Taiping Island—the largest of the Spratlys. (Courtesy of Coast Guard Administration)

• Publication Date：03/06/2009
• By  Chen Hurng-yu

A controversial bid by the Philippines to extend its maritime boundaries into disputed territory is now waiting for presidential approval before coming into law. Taiwan Journal contributor Chen Hurng-yu, director of the Institute of Southeast Asian Studies at Tamkang University, examines the probable motives behind Manila’s action, and uses historical evidence to dissect its legal foundations.

On Feb. 17, in a move arguably fueled by a recent surge in nationalism, the Philippine Congress passed the final reading of the controversial 2009 Baseline Bill. Sponsored by Sen. Miriam Defensor Santiago, the bill aims to establish the maritime boundaries of the Philippine archipelago.

The bill excluded from its archipelagic baseline the Kalayann Island Group, which is part of the Spratly Islands and considered by the Philippines as part of its province of Palawan, and Scarborough Shoal, known as Huangyan Island in Taiwan. Instead, both are treated as a “regime of islands under the Republic of the Philippines.”

Philippine officials and congressmen asserted that by adopting the “regime of islands” principle, Manila could avoid tensions or direct confrontation with other claimant countries to the contested Spratlys, including Taiwan, Vietnam, Malaysia and mainland China, while continuing to claim sovereignty over these islands.

Article 121 of the United Nations Convention on the Law of the Sea stipulates that under the “regime of islands” each island has its own territorial sea, contiguous zone, exclusive economic zone and continental shelf. Consequently, Santiago argued, the principle will increase the extent of the Philippines’ archipelagic waters and EEZ by more than 76,000 nautical miles over the existing laws.

Such a claim will deceive no one but the Philippines itself. As a matter of fact, by claiming jurisdiction over the KIG and Scarborough Shoal in the Baseline Bill, the Philippines has flouted the territorial sovereignty of its regional neighbors.

The U.N. Commission on the Limits of the Continental Shelf has set May 13, 2009 as the deadline for coastal states to define an extended continental shelf and submit their claims to the United Nations.

The continental shelf, which is the natural underwater prolongation of a land territory, is measured from the baseline. Under international law, the baseline is the line that divides the land from the sea, by which the extent of a state’s coastal jurisdiction is measured. The rapidly approaching deadline explains why the Philippines was eager to pass the bill. The document now only requires the signature of President Gloria Macapagal Arroyo to be passed into law.

However, the bill is contestable for two reasons. First, Manila’s claim of sovereignty over the KIG and Scarborough Shoal is certain to trigger disputes with other claimants. Primarily, the claim is not supported by historical fact. Under the terms of various international agreements, including the 1898 Treaty of Paris signed between the United States and Spain, which clearly defines the Philippines’ territorial limits, no evidence can be found to legitimize Manila’s claim to sovereignty over the KIG and Scarborough Shoal. Even in the Philippines, documents unilaterally declaring these islands as part of the country’s territory did not exist until the 1970s.

Second, the bill includes an attempt to legally incorporate the Batan Islands. There can be no doubt that this is in breach of Article 3 of the 1898 Treaty of Paris. Under the terms of the treaty, Spain had to cede to the United States the islands lying to the south of the 20th northern parallel. As the Batan Islands are located to the north of the 20th parallel, the islands were not ceded.

In 1961 Manila proclaimed the “Republic Act 3046: Act to Define the Baseline of the Territorial Sea of the Philippines,” which extended the border of the Philippines to the northernmost part of the Batan Islands to include Yami Island. Based on the border agreement signed between Spain and Japan on Aug. 7, 1895 and the content of negotiations recorded in the 1898 Treaty of Paris, Manila’s action of extending its border above latitude 20 degrees north violated those treaties and is legally baseless.

The territorial disputes over the Spratlys and the national boundary disagreements between the Philippines and Taiwan have been ongoing for a number of years, but the Philippines has been unwilling to negotiate with other countries concerned. In respect of the overlapping claims regarding the territorial waters of Taiwan and the Philippines, Manila has long insisted on its so-called “treaty limits” and banned foreign ships from passing through its archipelagic waters.

Territorial disputes should be settled through negotiations. However, the Philippines has chosen to unilaterally pass the Baseline Bill first and deal with those issues through the United Nations afterwards. Taiwan, Vietnam and mainland China have individually lodged a strong protest against the Baseline Bill.

Based on the CLCS regulations, if Vietnam and mainland China raise any objection to the Philippines’ definition of the limits to its continental shelf, the submission will not be approved by the CLCS. This means Manila stands no chance of putting the KIG and Scarborough Shoal under its jurisdiction by unilaterally passing the Baseline Bill.

It is expected that any future limits of continental shelf submissions concerning the disputed islands in the South China Sea to the CLCS, whether by the Philippines, Vietnam, Malaysia or mainland China, will immediately meet with objections from other claimant states and will consequently fail to be ratified by the world body.

Accordingly, the Philippines should negotiate with other parties to work out a solution. Any unilateral claim of territorial expansion, whether by legislation or other actions, will not be considered as legitimate reasons to sustain the claim, and will not be recognized or accepted internationally.

When Taiwan’s Cabinet promulgated “the first lot of Republic of China’s baseline, territorial sea and contiguous zone” Feb. 10, 1999, the maritime territory surrounding the island of Taiwan was clearly delineated with specific longitude and latitude, while the Spratlys and Macclesfield Bank were only declared as the ROC’s existent territories without clear indication of position.

To deal with the Philippines’ unilateral territorial expansion and safeguard Taiwan’s sovereignty, the government should proclaim the ROC’s territory in the South China Sea as early as possible.

Seeking to ease regional tensions over the Spratly Islands, in 1999 the ROC government withdrew its contingent of Marines stationed on Taiping Island—the largest of the Spratlys, and replaced them with Coast Guard personnel.

This shifted jurisdiction of the region from the Ministry of National Defense to the Coast Guard Administration. However, Taipei’s goodwill gesture was not reciprocated by the other claimants, who continued to expand facilities and increase their military presence in the region.

Following the passage of the Baseline Bill, the Philippine navy has threatened to increase its military presence on Thitu Island in order to cope with any so-called “invasion” of the Spratlys. While the Philippine Defense Secretary Gilberto Teodoro later toned down the rhetoric by saying that his country would not violate international treaties and agreements, it is clear that Manila’s promise to seek a peaceful resolution to territorial disputes in the region has been undermined by an upsurge of nationalism.

In recent years, Taiwan has been advocating the idea of temporarily shelving the sovereignty disputes in order to explore ways of jointly developing and managing the South China Sea, and has proposed all countries concerned agree to recognize the region as an ecological protection area. In 2007, for example, the Pratas Islands were designated as a national marine park. Encouraging results have already been recorded in preserving coral reefs and living marine resources. Such an experience is worth promoting and sharing with other claimants to the Spratlys.

In addition, Taiwan can take the initiative in alleviating regional tension by realizing the peaceful development on Taiping Island. For instance, the regular provision of weather, hydrographic and ocean current information to neighboring countries could help improve navigational safety and marine resource preservation in the region. This initiative could very likely pioneer an exchange of research data and friendly interaction between all concerned countries.

Copyright © 2009 Chen Hurng-yu