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Henry Phoel R Aguda"Jesusa Koreto A- Arellano,Aguda'"

"Mow the earth was formless and emp!y+darkness was over thesurface of the deep+and the Qpirit of God was hovering over thewaters--- And God said+ 'Ket there be an expanse between thewaters to separate waterfrom water-' Qo God made the expanseand separated the water under the expanse from the water aboveit- And it was so-"

, Genesis 091,6

The Spratly group of islands 'hereafter referred to as Spratly( of theSouth China Sea is a &tinderbox&!of international conflict in the Asianregion. An estimated 44 of the 51 small islands and reefs are daimed oroccupied by the littoral states of Brunei) China) Cambodia) Indonesia)Malaysia) Philippines) Taiwan) Thailand) and Vietnam.2 The vast naturalresources contained in the area consist primarily of oil) natural gas) andseafood.3 The dispute is further fuelled by the growing attempts of incursionby China in the region) which is motivated by its expanding need to meet itsenergy demands.4 The overlapping sovereignty daims in Spratly have

} Cite as Henry Aguda ( Jesusa Ardlano-Aguda) Rhe Ohilippine Claim- Nl+-rthe Qprotl)+Group of IJland+,9AnApp.it'ation of Artit'le 76 olSMNJJQ+ 83 Phil. L.J. 548) 'page citcd( '2009( .

.. .J.D.) Class Valedictorian) Cum Laude) University of thc&Philippines '2008(; B.S. Mathcmatics)University of the Philippincs '1988(; First Vicc-President and Chief Information Officer) DigitalTelecommunications Iloldings) Inc.

u) .J.D.) Class Salutatorian) Cum Laude) University of the Philippines 'Z008(; B.S. BusinessAdministration and Accountancy) Cum Laude) University of the Philippines '2002(; Le/)>alAssistant) SyCipSalazar Hcrnandez ( Gatmaitan.

PICE Case Study: Spratly Island Dispute) Case No. 21 'May 1997() al'ailahle athttp://www.american.edu/projects/mandala/TED/ice/spratly.htm.

2 Energy Information Adminstration) NjJidal Enew Qtatirtit'+,from the S-Q- GNl+-mment+athttp://www.eia.doe.gov/cabs/South_China_Sea/Background.htmJ. 'last modified Mar. 20'8(.

3 Qupra+note 1.· Qee I-I. W. French) China9r Boom Btin-gJ Feat«of an EIe"'tid(y B+-akdown+ NEW YORJ.-: TIMES '5 July 2'04(-

wherein China is the second largest consumer of ener/)&Yyet its pcr capita consumption is only 10$ of the percapita consumption of USA. This situation reflects its immense need for additio):)ul energy.

resulted in several military incidents since 19745 and in several countriesawarding foreign companies exploration rights in the same area of the SouthChina Sea.o The foreboding diplomatic crisis is further emphasized by thediplomatic protest flied by the Philippines against China in 1999 when thelatter established military fortifications in Mischief Reef.7 In 1992)sovereignty and exploration disputes were thought to be resolved with thedrafting of the ASEAN declaration) which committed members to resolvedisputes peacefully and to consider joint exploration of the territory.8Military aggression and exploration endeavors conducted by China since1992) however) have brought into question the validity of the 1992 jointdeclaration and raises the question of what long-term) peaceful solutioncould prevent the region from erupting into a continuum of militaryincidents over sovereignty rights to the natural resource-rich Spratly Islands.

The problem that the Philippine government faces is establishingwithin the international community of States its rightful claim over theislands of Spratly. While diplomatic attempts to assert Philippine sovereigntyhave been initiated as early as the 1970&s) it is only recently upon ratificationof the Philippines of the United Nations Convention on the Law of the Sea'hereinafter referred to as "UNCLOS"( that an internationally recognizedlegal framework for resolving the competing claims has buoyed thePhilippines claim to new heights.

With the force of customary law) Article 7 6 of UNCLOS has shiftedthe basis of the Philippine claim on Spratly from historical evidence toempirical scientific foundations. As the islands in Spratly are small in sizeand cannot support economic life of their own) and worse) many are reefsand other features that are not above water all the time) they are unlikely tobe conferred continental shelf or Exclusive Economic Zone status.

The Philippine&s claim is based mainly on Article 76 of theUNCLOS as it provides the framework for establishing the rights granted inArticle 77 to littoral states affected by the controversy. UNCLOScompartmentalized the &common heritage of man&9 into various maritime

S Themostseriousof theseincidentswasin 1974whenChinainvadedandcapturedtheParacelIslandsfromVietnam;andagainin 1988whereChineseandVietnamesenaviesclashedatJohnsonReefresultinginthesinkingof severalVietnameseboatsandthedeathof70 sailors.(xupm note1.(

'. ICECaseStudy)Hmif note1.7 A.RuthandR. Jimenez)China ForlifteJ Hold on QprallyJ+MANILA TIMES) Oan.21)1999(8 ASEANDeclarationOnTheSouthChinaSea).lull&221992(.} The&commonheritageof man&is a conceptestablishedbyGrotius&sLare Sberum+ whichism omnium

communi+-and is incapableof appropriation.Thisis a co"ceptthat hasbeenattenuatedby the technologicalprogressof man enablinghimto conquerwhatwasoncea vastocean.Suchis the previouslyunattainablerealmof theseathatUNCLOSaimsto setgoverningrulesforthewholeofhumanity.

zones consisting of the territorial sea) contiguous zone) exclusive economiczone) 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 shelfand will briefly discuss the other maritime zone regimes to. the extentnecessary in understanding the application of Article 76 of UNCLOS.Furthermore) while most literature on the subject matter of the Spratlyconflict 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 beresorted to) the interests of the Philippines will be best served by making itslegal position the bedrock for any diplomatic solution or future internationalarbitration.

While there have been several scientific research and political paperswritten on the Philippine claim on Spratly) there has been a dearth ofresearch work on the legal aspect of the claim; the least of which is theavailability of legal opinions on the application of Article 76 as the basis ofthe claim.

The paper will also discuss the other bases for the claim of thePhilippines namely: discovery) proximity) and national security. The meritsand weaknesses of these other bases for the Philippine claim will bediscussed in order to provide a contrast with Article 76.

Finally) the paper will make recommendations in the area oflegislation and executive actions required to establish the Philippine claim onSpratly based on Article 76.

I f is said that the history of the sea has been dominated by a centraland persistent theme: the competition between the exercise of governmentalauthority over the sea and the idea of the freedom of the seas.11 This is thebalance that UNCLOS is envisioned to maintain. Having been in effect formore than two decades) the UNCLOS now encompasses the normative law

ItI MERLIN MAGAl.LON.\) INTERNXnONAl.L.\W ISSUES IN PERSPECTIVE 212 '1996(.33 D. O&Connell) The International Law of the Sea 1 '1992() as cited by P. E. Steinberg) Rhree HY9rtoncal

Qy-rtems o.G+um GrmmanK'9 A !'rameworkIor Analy'(ing the Kawrftbe Qea+12 lZcTK Bul.l.. 5-6) 1 'Sep. - Dec.1996(.

that governs maritime disputes between States. Among its ground breakingfeatures is its compartmentalization of the various maritime zones intocohesive legal regimes. As it applies to the Spratly) the legal regime of thecontinental shelf embodied in Articles 76 to 84 provides the answer inresolving the contending sovereignty claims over it.

In order to facilitate the resolution of the conflicting claims) theUNCLOS has established the Commission on the Limits of the ContinentalShelf 'CLCS(. As a pre-requisite to the granting of the claim) each coastalstate must submit to the CLCS the necessary scientific information gatheredaccording to the guidelines set by Article 76 and its annexes. The deadlinefor the submission has been set to May 2009. However) the Philippines islagging behind with the other littoral claimants in finalizing) solidifying) andarticulating its legal claim to the Spratly.

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

While most of the claimants have relied DC,2historical precedents tobolster their claims) Article 76) which covers the definition of the outerlimits of the continental shelf of a coastal state) provides the Philippines withthe strongest scientific and legal basis for its claim and Article 77 provides itpatent rights over the Spratly. The problem before us is how to use Article76 of the UNCLOS in winning the claim over the Spratly.

This paper will tackle the issue of whether or not the Philippines hasa valid claim to the Spratly Islands based on Article 76 of the UNCLOS. Inthe course of the discussion) the following questions will have to beresolved:

1. What is the interpretation of the provision and annexes related toArticle 76?

3. What are the relevant legal and historical antecedents 1nunderstanding the Philippine claim?

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

Public international law regulates the relations among the States)through treaties and customary norms.12The international law of the sea isone of the key areas of public international law and the UNCLOS is itscornerstone.13

After 14 years of negotiations to which more than 150 countriesrepresenting all regions of the world participated)14 UNCLOS was finallyconcluded on 10 December 198215in Montego Bay)Jamaica. It is commonlyreferred to as a "Constitution for the Oceans)" as it addresses every aspectof the uses and resources of the sea.1oIt represents one of the most complexand innovative efforts to .codify international law since World War II.17UNCLOS comprises 320 articles with 9 highly complex annexes and anumber of Conference Resolutions. It entered into force only in 16November 1994) since the United States and other industrialized countriesexpressed objections on Part XI of the UNCLOS) relating to the deepseabed mining regime. In order to resolve that impasse) in the 1990&s)theUnited Nations Secretary General sponsored a series of consultations thatled to the adoption of the 1994 "Agreement relating to the implementationof Part XI of the United Nations Convention on the Law of the Sea" whereState parties undertook to implement Part XI of the Convention in

12 UN Division for Oceanic Affairs and the Law of the Sea Office of Legal Affairs. Training Manual fordelineation of the outer limits of the continental shelf beyond 200 nautical miles and for preparation ofsubmissions to the Commission of the Limits of the Continental Shelf 1-2 '2006(.

02 HTl&United Nations Convention on Law of the Sea 'hereinafter "UNCLOS"(. available at

http://www.eoearth.org/ article/ United _Nations_ Convention_on_l"aw _oCthe_Sea_CUNCLOS(._1982'1982(

15 The Philippines signed the UNCLOS on 10 December 1982 and ratified the same on 8 May 1984.16 Q'0'm note 14017 H. PAl-:) THE LA \V OF THE SE.¥ AI&DNORTHEAST ASIA: A CHALLENGE FOR COOPERATION 1 '2000(.

accordance with the provisions of the agreement. The adoption of theagreement made possible the entry into force of the Convention.18

UNCLOS represents a commitment of the international communityto the rule of law in the conduct of maritime affairs.19 It is a response to theneed expressed by many States to elaborate a new and comprehensiveregime for the law of the sea as well as an effort to achieve a "just andequitable international economic order".20 Having been ratified by 152States 'as of December 30 2006()2l its universality is supposed to greatlyincrease order and predictability) narrow the scopes of disputes to moremanageable proportions and provide the legal means to resolve them.22It issupposed to bring considerable stability to State relations with respect toocean affairs and the law of the sea.23In short) the universality of UNCLOSshould help foster a stable regime required for effective ocean governance topromote peace and security) equity) and sustainable development24

The drafters of UNCLOS recognized that all problems concerningoceans are closely related and should be dealt with in a cohesive and holisticmanner.25 UNCLOS) therefore) deals with 'i( limits and legal regimes of thevarious maritime zones 'including the continental shelf(; 'ii( rights ofnavigation; 'iii( peace and security; 'iv( conservation and management ofliving and marine resources; 'v( protection and preservation of the marineenvironment; 'vi( scientific research; 'vii( activities on the seabed beyond thelimits of national jurisdiction; and 'viii( the settlement of disputes. Inaddition) UNCLOS established three bodies: the Commission on the Limitsof the Continental Shelf 'hereinafter referred to as "CLCS"() theInternational Seabed Authority 'hereinafter referred to as "ISA"() and theInternational Tribunal for the Law of the Sea 'hereinafter referred to as"ITLOS"(.26

UNCLOS is one of the most important and most widely ratifiedmultilateral treaties.27As 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

). UNCLOS) xup"+ note 14.19 Pak) xupra note 06-2lJ UNCLOS) xupra nole 03-21Jrl22 Pak) xupra note 17.12ld1«ld25 Qupra note 12.1(+ GT27 ld

interests cutting across traditional political and regional alignments that itsought to balance in light of the great number of States that partic(pated.28

These participating States are bound by the rights and obligations enunciatedin the UNCLOS) and must be performed by them in good faith.29 Article300) Part :A.rvIof the UNCLOS provides:

States Parties shall fulfill in good faith the obligations assumed underthis Convention and shall exercise the rights) jurisdiction andfreedoms recognized in this Convention in a manner) which wouldnot constitute an abuse of right)

Moreover) UNCLOS) with the exception of Part XI) is generallyconsidered to represent a codification of customary international law30andits progressive development. 31Since the negotiations proceeded on the basisof consensus) it was much easier during the twelve years before UNCLOSentered into force for most of its provisions to become accepted asrepresenting customary law.32

Customary international law) as described by the Statute of theInternational Court of Justice is "a general practice accepted as law."33 Theexistence of a rule of customary international law requires the presence oftwo elements) namely State practice (usus) and a belief that such practice isrequired) prohibited) or allowed) depending on the nature of the rule) as amatter of law (opinio juris sive necessitates)-23 Customary international law istherefore obligatory) and is binding on all States.3s As most provisions ofUNCLOS) specially the most important provisions) are codifications ofcustomary international law they should be binding on all States) includingthe non-parties to it.

28 UNCLOS) +r"Om- note 1418 JRTR ,jeege,jUfegTR, Vienna Convention on the Law of Treaties) '1969( art. 26.kP International Law Governing Driftnet Fishing on the High Seas al

http://www.earthtmst.org/dnpaper /intJlaw.html. Examples of provisions codified )10 customary internationallaws 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 harvestedspecies at levels which can produce the maximum sustainable yield) as qualified by relevant environmental andeconomic factors)" 'article 119(; and to conserve and manage marine mammals in the high seas 'article 120(.

" UNCJ-OS) -rupra note 14."A Aust) Handbook of International Law 7 '200S(." IC.J Statute) art. 38'1('b(..0R0J Ienckaerts and L. DoswaIJ-Reck) DGG,jegfRjoGgeUfRe;hgReZ-pmfRg;eRglege.cen,Vo!. 1) xxxii '2005(."U0 M. !nvBnNHTTZSH. MfXKBnkPLkeHP0e OF afITPJ P^)BeLcXHePZSHT !.:\\x| 18 '2005(.

The South China Sea is defined by the International HydrographicBureau as the body of water stretching in a Southwest to Northeastdirection) whose southern border is 3 degrees South latitude between SouthSumatra and Kalimantan 'I<:arimata Straits() and whose northern border isthe Strait of Taiwan from the northern tip of Taiwan to the Fukien coast ofChina.36 It encompasses a portion of the Pacific Ocean stretching roughlyfrom Singapore and the Strait of Malacca in the southwest) to the Strait ofTaiwan 'between Taiwan and China( in the northeast. The area includesmore than 200 small islands) rocks) and reefs) with the majority located inthe Paracel and Spratly Island chains.37The Spratlys links the Pacific Oceanand the Indian Ocean.38 Despite the fact that the archipelago is spread over160)000 to 180)000 square kilometers of sea zone) the total landmass of theSpratly Islands total land area of 10 square kilometers only. All its islands arecoral) low and small) about 5 to 6 meters above water.39

The land is not arable) does not support permanent crops) and hasno meadows) pastures or forests4o. Many of these islands are partiallysubmerged islets) rocks) and reefs that are little more than shipping hazardsnot suitable for habitation.41 The Spratly Islands have not been occupied byhumans until recently. Countries with territorial claims use military means --airstrips and armed forces -- to reinforce their claims. 42The islands areimportant) however) for strategic and political reasons) because ownershipclaims to them are used to bolster claims to the surrounding sea and itsresources.43

The South China Sea is rich in natural resources such as oil andnatural gas. One study conducted by China estimated oil reserves in theSouth China Sea to be larger than Kuwait&spresent reserves.44 Oil andnatural gas reserves in the Spratly region are estimated at 17.7 billion tons;Kuwait&sreserves amount to 13 billion tons.45The Spratly reserves place it

:l6 Spratly Islands) Rehttp://www.globalsecurity.org/military/world/war/spratly.html.26 PT..311 PT..39 PT..

.}}) ICE Case: Spratiy J sland Dispute) HGGJg/.note 1

.) Spratly Islands) Jllpm note 36.42 R. Heinemann) Rhe Qpmlfy 0-r0l-lndrDi+pllle+1.11

http://www.reedbooks.com.au/heinemann/hot/sprat.htmlcited in ICE Case: Spratly Island Dispute) note I)Jllprl-l-

65 Spratly Jslands) -fllpm note 36.4. R0 Kiras) Rhe QNlllh Cbinl-l Qet-l9IJJlleJ of a Lanjime Dirpllle+ PEACEKEEPING ( INTERNKI10NAL

RELIT/ONS) 3-4) Oul/ Aug 1995(.s X0Marsh). Rhe Qpralfy IdandJ«!Hrplile- al http://snipe.ukc.ac.uk/intemational/disscrt.dir/marsh.html.

as the fourth largest reserve bed worldwide.46 These resources have garneredattention throughout the Asia-Pacific region. East Asia&seconomic growthrates had been among the highest in the world and this economic growthwill be accompanied by an increasing demand for energy. Over the next 20years) oil consumption among developing Asian countries is expected to riseby 3.0$ annually on average) with more than one-third of this increasecoming from China alone. If this growth rate is maintained) oil demand forthese nations will reach 33.6 million barrels per day by 2025.47

Almost all of this additional Asian oil demand) as well as Japan&soilneeds) will need to be imported from the Middle East and Africa) and topass through the strategic Strait of Malacca into the South China Sea.Countries in the Asia-Pacific region depend on seaborne trade to fuel theireconomic growth) and this has led to the sea&stransformation into one ofthe world&sbusiest shipping lanes. In addition) the South China Sea regioncontains oil and gas resources strategically located near large energy-consuming countries.

Over half of the world&smerchant fleet sails through the SouthChina Sea every year. The economic potential and geopolitical importance ofthe South China Sea region has resulted in jockeying between thesurrounding nations to claim this sea and its resources for themselves.

C. THE HISTORY ZM THE PHILIPPINE TERRITORY HXK PHILIPPINECLAIM TO THE SPRATLY

Article III of the Treaty of Paris entered into by Spain and theUnited States on December 10) 1898 principally defined the territoriallirnitsof the Philippines.48 The treaty sets forth in exact metes and bounds theterritory of the Philippines taking into consideration the unity of land andwater that inheres in the concept of an archipelago.49 The subsequentConstitutions of the Philippines have adapted the historical and politicalboundaries of the Philippines as set in the Treaty of Paris. As shown inFigure 1.0) Spratly is not included within the political boundaries of thePhilippines set forth in the Treaty of Paris.

46 Spratly Islands) H!Jf note 36.36 Q"Ora note 2.37 Qupra note 10) at 202.49 Id-

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During World War II) Japan occupied both the Paracels and SpratlysIslands in 1939) shortly after they controlled Hainan Island. The Japaneseused Itu Aba) the largest island in the Spratly) as a submarine base and aspringboard for its invasion of the Philippines. 51 In 1947) a year aftergaining independence) the Philippine Secretary of Foreign Affairs called forthe territory occupied by Japan during the World War II to be awarded to

7f Files from N.R. Aguda) geologist) Pacific Consultants Incorporated Philippines.51 The Philippines& Illegal Claim in the Spratlys 'Spratly Islands() Rhe I-ie-·-and Ibe Groundle-·--·-Zmurion inlo

Cbina~·-Qprully Z-rlandof Qoulb Cbina Jeu ) al http://www.spratlys.org/ collection/ claims/philippines.

the Philippines.52 On 7 April 1949) the Chinese Republican Legation inManila informed the Philippine government that the Chinese weregarrisoning Itu Aba in an effort to block the traffic of arms through Hainanto Communist forces. However) the Philippine government continued toexpress concern and discussed inducing Filipinos to settle in the Spratlyislands. In the same month) the Philippines sent its navy to explore theSpratlys.53 An article published in Manila Bulletin on 15 May 1950 said thatthe Philippine government should occupy the Spratly Islands together withthe United States because it was closer to Palawan compared to China andVietnam.54 On May 17) President Quirino of the Philippines said that if theChinese Kuomingtang 'Nationalist Party( troops really occupied theSpratlys) then the Philippines did not need to occupy them. However) if theislands fell into the communist enemy&s hands) Philippine security isthreatened. It was then said that the Spratlys should belong to the nearestcountry according to international law - which is the Philippines.55 ThePhilippines did not make a claim to the islands during the 1951 Treaty ofSan Francisco. However) the Philippines interpreted the Japaneserenunciation of the Spratly islands in the resulting treaty as to transformingthe area into res nullius and making it open to acquisition. 56

In 1956) Tomas Cloma together with his brothers and 40 crewmenexplored the Spratly and claimed to have "discovered" and occupied 53islands and reefs of the Spratly. They proclaimed "formal ownership" overthem and renamed these islands and reefs the Kalayaan 'Freedomland(Island Group. In October 1956 Cloma traveled to New York to plead hiscase before the United Nations and the Philippines had troops posted onthree islands by 1968 on the premise of protecting Kalayaan citizens.57

In early July 1971) the Philippine government alleged that theTaiwanese troops on the Itu Aba Island "fired on a boat carrying aPhilippine congressman" 58 After this the Philippine government announcedon 10 July 1971 that "it had sent a diplomatic note to Taipei asking that theChinese garrison be withdrawn from Itu Aba".59 The diplomatic note states:

" Coguia) 1990:119)cited in D. Dzurek and C. Schofield) Rbe Jp+-at!yI-rlandr Dirpute9 S6bf.r on f'ir-rt?+1IBRU Maritime Briefing) 1)14'1996(.

SJ Jl1&).anote 51.&Q5Zd--sold56 Drigot) 1982: 44) cited in D. Dzurek and C. Schofield) +"up+-anote 52.57 Spratly Islands at http://en/ wikipedia.org/wiki/Spratly_Islands.+-Jupm note 51.59 PT..

'1( The Philippines has legal title to the 53 islands and reefs once occupiedby Tomas Cloma because the area was terra nullius at the time of itsoccupation and was "acquired according to the modes of acquisitionrecognized under international law) among which are occupation andeffective administration"CiO; '2( the presence of the Chinese forces in Itu Abaconstituted a threat to the security of the Philippines; '3( Chinese occupationof some islands in Spratly group constituted a de facto trusteeship on behalfof the World War II allies which precluded the garrisoning of the islandswithout the allies& consent; and '4( the Spratly group is within thearchipelagic territory of the Philippines.61 Meanwhile) the Philippines sent itsnavy to occupy Thitu Island and Nanshan Island.62

In April 1972) the Philippine government incorporated the"Kalayaan" group into Palawan Province as a rnunicipality'13 and wasadministered as a single "poblacion" 'township() with Tomas Cloma as thetown council Chairman.64

In February 1974) the Philippine government stated that thePhilippine forces had occupied five islets in the Spratlys. It justified itsoccupation of the Spratly Islands as "the strategic importance of theKalayaan area to the Philippine security".65

By 1978) the Philippines occupied two more islands; later) it furtheroccupied Siling Jiao 'Commodore Reef(; in 1980) it occupied Liyue Tan'Reed Bank(fi6 On June 11) 1978) Filipino president Marcos signedPresidential Decree 1596 which claimed the Kalayaan group. The 1978decree omitted Spratly Island and included Amboyna Cay which was notclaimed by Cloma. It also said that "some countries claimed some parts ofthis area but they had given up and thus the claims are not validanymore ..."67 On 17 July 1978) Presidential Decree 'PD( 1599 was issued)proclaiming that the Kalayaan Group was within the Philippine EEZ

&"A. R0Gregor) In the Shadow of Giants) the Major Powers and Security of Southeast Asia 91-92 '1989()cited in -rupra note 730

61 H. Yorac) Rhe Obilippine Claim 0/ Ibe Qpmlly Irlandr Group+ 53 Phil. L.J. 2 '1983(.62 Qupra note 51.5' Id" Spratly Islands) Jupra note 57.6S C. j|Iurng Yu) The South China Sea Islands&Sovereii)&l1tyand International Conflicts) 89 '1987() cited

in note 49) -rupra-7', Qupra note 5178 BMJ. Baviera cd.) The South China Sea Disputes: Philippine Perspectives '1982() cited in Hmie&Rnote

'Exclusive Economic Zone(. More recently in 2005) a cellular phone basestation owned by Smart Communications was erected on Pag-asa Island.68

Centuries-old evidence of discovery are used as basis to lay claim totitle to the Spratly islands. Claims are also based on occupation) and rightsover continental shelf delimitation as defined under the UNCLOS.However) sovereignty over the Spratlys has been fiercely contested onlysince World War II) with the withdrawal of Japanese and French forces thathad occupied some islands.69 Only China) Taiwan) and Vietnam claim all ofthe Spratly islands. 'See Figure 2.0(

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')R Spratly Islands) Heeif note 57.69 D. Dwrck) Heeif note 52.70 Spratly Islands) Heeif note 36.

China&sassertions of sovereignty in the South China Sea rest onhistorical claims of discovery and occupation. The Chinese case is welldocumented) going back to references made in Chou Ch&u-fei&sKing,Uai, tai,ta during the Sung dynasty '12th century(71 and in the records of Chinesenavigators during the Qing dynasty '18th century(.72 In 1992) China passed aspecial territorial sea and contiguous zone act to legalize its claims to theSpratlys. Article 2 of this legislation specifically identifies both the Paracelsand Spratly archipelagos as Chinese territory.73 To uphold this claim to title)since 1988 China has deployed some 260 marines in garrisons on seven ofthe Spratly islets.74

On the other hand) Taiwan&sclaims) which mirror that of China&s)75are based on its longstanding historic ties to the islands.76 Taiwan was thefirst government to establish a physical presence in Spratly following theJapanese departure after World War II. Taiwan announced its claim to theatoll in 1947 and has occupied the largest island of the Spratlys) Itu Aba)constantly since 1956. From the mid-1950s through the late 1980s) Taiwanmaintained a force of some 500 soldiers on Itu Aba) although by 1999 thenumber of troops had been reduced to about 110.77

The legal grounds fat Vietnam&s claims to the South China Seaislands flow from historic activities during the Nguyen dynasty '17th-19thcenturies(.78 Maps and other supporting historical evidence for Vietnam&sclaims were compiled and set out by the government in two white papers)Tietnam's Qovereign!)+Nver the Hoang Qa and Rrung Qa Archipelagoes+ issued in1979 and 1982) respective1y.79 Vietnam asserts that "it has maintainedeffective occupation of the two archipelagos 'paracel and Spratly islands( atleast since the 17th century when they were not under the sovereignty of any

71 Chou Ch&u-fei)ung,Uai, lai,Ia 'Infonnation 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) &TheSpratly Islands Dispute in the South China Sea:Problems) Policies) and Prospects for Diplomatic Accomodation) Re http://www.southchinasea.org/docs/0Poyner )"/u20Spratly$)20J slands$20Dispute.pdf.

94 Samuels) Jupra- Appendix C; Chi-Kin Lo) China&sPolicy Toward Territorial Disputes) 30) cited in C.Joyner) .r&§ronote 71.

71 The Law of the People&s Republic of China on the Territorial Sea and Contiguous Zone becameeffective on 25 rebruary 1992. See People&s Daily Beijing) 26 February 1992)4) reprinted in UN Law of theSea Bulletin No. 21) PI" 24-27 'Aul)&Ust1992(.

74 J. C. Baker) el ai+Cooperative Monitoring Using Commercial Observation Satellites: Case Stud(&of aTransparency Regime for the South China Sea Disputes '1999() cited in C. Joyner) Jupra nole 80.

7S C. Joyner) .r&§ro note 71.76 P. Kien-hong Yu) "Reasons for Not Negotiating on the Spratlys: A Chinese View from Taiwan)" cited

in C. .ioyner) HT..77 J.c. Baker) Jllpra note 74.78 C. Joyner) HGGJjhnote 71.79 HT.

countty and the Vietnamese State has exercised effectively) continuously andpeacefully its sovereignity over the two archipelagos until the time when theywere invaded by the Chinese armed forces."8o

Vietnam also bases its claims to sovereignty over the Spratlys byright of cession from a French claim to the islands first made in 1933. In anyevent) Vietnam moved in 1975 to secure its claim to possession of theSpratlys when it occupied thirteen islands of the group. In September 1989)Vietnam occupied three more islets) and has since ta)ken at least nineadditional atolls. By 1999) Vietnam had stationed 600 troops on at leasttwenty-seven Spratly land formations.8!

Malaysia has claimed sovereignty over twelve islands in the Spratlygroup) basing its claims to certain islands on ocean law principles associatedwith 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) aboutseventy soldiers have been stationed on three of the twelve islets claimed byMalaysia.82

Brunei has only one claim to the Spratly group - the naturallysubmerged formation known as Louisa Reef. The legal premise forsubstantiating Brunei&sclaim flows from continental shelf provisions in theUNCLOS. Brunei remains the only claimant without a militaty presence inthe Spratly Islands. Even so) Louisa Reef is also claimed by Malaysia) whichtook possession of it in 1984.83

Indonesia is not a claimant to any of the islands or rocks in theSpratlys. However) the Chinese and Taiwanese claims) depending on theirnature and interpretation) could also intrude upon the Indonesian EEZ andcontinental shelf as defined under UNCLOS and as demarcated in theIndonesian-Malaysian Agreement of 1969.84

80 Vietnam) 1988:4) cited in D. Dzurek and C. Schofield) Jupra note 52 at 8.81 J. r0 Baker) Jupra note 74.71Id-83 K. Muhamed and T. ShamsuJ Bahrin) "Scramble for the South China Sea: The Malaysian Perspective)"

in Hill et aI.) Fishing in Troubled Waters) 237-250) cited in C. Joyner) Jup+-a-note 71.84 H. Ojalal and 1. Townsend-Gault) Oru-nlit+- Diploma;y9 Lanaging Oolenlial ConfhdJ in Ibe Qoulb Cbina Qea+

al http://www.faculty.law.ubc.ca/scs cited in C. Joyner) Jupra note 71.

In sum) the Spratlys situation remains complicated by competingclaims and military clashes. In March 2005) a memorandum ofunderstanding was signed by China) the Philippines) and Vietnam to resolvethe energy exploration issues among the three countries in the South ChinaSea. The country agreed to do seismic surveys in the area which includes theSpratly Islands) without giving up their respective territorial claims. ThePhilippine National Oil Company) China National Offshore OilCorporation) and Petro Vietnam agreed to design seismic oil exploration fora three-year program covering a 55)000 square mile area. The threecompanies are sharing the #15 Million project cost. The Chinese seismicvessel Nanhal is gathering the data. The seismic data is sent to Vietnam forprocessing. Then the data is analyzed by experts in the Philippines.85

As man&s technology enabled him to exploit the historicallyinaccessible seabed and subsoil lying beyond the territorial sea) so did theinterests of States to appropriate for themselves these areas rich withminerals and other resources. The need to regulate this once invisible realmof humanity can be traced back to the "continental shelf& doctrineproclaimed by U.S. President Harry Truman in 1945) where he pronouncedthe US government&s claim of sovereignty to the natural resources and sea

85 South China Sca) available athttp9.. www.eia.doe.gov.emcu/cabs/ South_ China_Sca/Background.html.

bed of the continental shelf beneath the high sea but contiguous to the coastof the United Sates.86

Truman&sproclamation started the flow of customary internationallaw on the continental shelf that was officially recognized by theinternational community in the 1958 Convention on the continental shelfand in the 1969 North Sea Continental Shelf Cases87 as well as the 1978Aegean Sea Continental Shelf Cases88 all decided by the International Courtof Justice 'GDH(. In fact) the ICJ had the occasion to assert the customarynature of the doctrines governing the continental shelf. The GDHstated:

For to become binding) a rule or principle of international law neednot pass the test of universal acceptance. This is reflected in severalstatements of the Court) e.g.: &generally... adopted in the practice ofStates& 'Fisheries) Judgment) I.C.J. Reports 1951) p. 128(. Not allStates have) as I indicated earlier in a different context) anopportunity or possibility of applying a given rule. TI1e evidenceshould be sought in the behavior of a great number of States)possibly the majority of States) in any case the great majority of theinterested States.89

Hence) Articles 76 to 84 of UNCLOS embodied the customaryinternational law pertinent to the determination of the validity of Statesclaims over its continental shelf. The pertinent provisions of UNCLOS nowprevail over the 1958 Convention on the Continental Shelf.90

One of the unique features of UNCLOS is the introduction ofseveral legal regimes corresponding to each maritime zone that determinethe jurisdictional and sovereignty rights of a coastal state. These legalregimes are 'i( internal waters 'article 8(; 'ii( territorial sea 'articles 2-32(; 'ill(contiguous zone 'articles 33 and 303(; 'iv( exclusive economic zone 'EEZ(

'"Qupra+ .note 12."&&Therights 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 ipJojaclo and ab initio+by virtue of its sovereigntyover the land) and as an extension of it in exercise of sovereign rights for the purpose of exploring the seabedand exploiting its natural rights. In short there is here an inherent right.&ZMorth Qea Continental Qhelf Care (Fuleralli-J9publitof Germany . Denmark: Federal Pepablic of Germany . Mether9.andJ)+IC( '1969( par.3.J

"" &Inshort) continental shelf rights are legally both an emanation from and an automatic adjunct of theterritorial sO\&ereigntyof the coastal State&(Aeagean Qea Continental Qhelf C-d+,e+IC]) '1978( par. 86( .

}} North Sea Continental Shelf case) Hmif note 87 at 229.kP ld--

'articles 55-75(; and 'v( continental shelf 'articles 76- 84(.91 Beyond themaritime zones are the 'i( high seas 'articles 86-120( and 'ii( internationalseabed area 'articles 133-191(. 92These zones are shown in Figure 4.0.

7ANHPHJD @LKDO

yxc Teritlrial Se. ea#einQew Coasli!1Yt\lliCS

1# Tt!tt(rit.lUyy

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The baseline is a line drawn by joining a set of points calledbasepoints which represent areas exposed during low-low tide conditions. Itis a prescribed line where all maritime zones will be measured seaward of thecoastal state. UNCLOS defines three principal types of baselines from whichthe coastal state can use to define its coastal limits to its maximumadvantage) whether using only one type or combination of the following:Normal baseline 'Article 5() Straight baselines 'Article 7( and Archipelagicbaseline 'Article 47(. After defining the baseline) other maritime zones cannow be defined as follows: territorial sea '12nautical miles or "nm"( 'Article3() contiguous zone '24nm( 'Article 33() exclusive economic zone '200nm('Article 57() mandatory continental shelf '200nm( 'Article 76() and theextended continental shelf 'beyond 200nm( 'Article 76(.

8- Qupra+note 12 at 1-3.81 Id82 B&&ZHceRSelat http://www.gmat.unsw.edu.au/currentstudents/ug/projects/baltyn/marzon1.jpg

Article 76'1( of UNCLOS defines the continental shelf of a coastalstate as comprised of the seabed and subsoil of the submarine areas thatextend beyond its territorial sea throughout the natural prolongation of itsland territory to the outer edge of the continental l1!argin94or a distance of200 nautical miles from the archipelagic base lines95. All maritime zones aredefined by breadth criteria96 as shown in Figure 6020The continental shelfregime is defined and contained in Part VI 'Articles 76 to 84( and Annex IIof UNCLOS and it prevails over the 1958 Convention on the ContinentalShelf. 97

The concept of Philippine sovereignty over its continental shelfexisted and is incorporated as early as the 1935 Philippine Constitution)amplified in the 1973 Philippine Constitutio&n) and perpetuated in the 1987Philippine Constitution.98 The terms sub-soil) seabed) and other submarineareas over which the Philippines have sovereignty refers to its continentalshelf and is a strong indication of the Philippine government&s intention toprotect its interest)99 which would naturally include Spratly by virtue of itsgeology.

There is a difference between claims based on sovereignty andclaims based on Article 990 The first would confer to succe¥sful claimants&sovereignty over the resources as well as on the air) water) and subsoil of thearea claimed. It gives full jurisdiction and control over the area. On the otherhand) Article 77 confers only rights as provided by the UNCLOS) which areas follows:

94 Art. 75) par. 1 defines the continental margin) which comprises the submerged prolongation of theland mass of the coastal State and consists of the sea-bed and subsoil of the shelf) the slope and the rise. Itdoes 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 reguires that 'i( suchbaselines include the main islimds of the archipelago) and *g, within which such baselines that ratio of the areaof the water to the land) including atolls) be between 1 to 1 and 9 to 1.

96 Q"!'ra note 12 at 1-4.97 Qupra note 12 at 1-3.98 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 whichthe Philippines has sovereignty or jurisdiction) consisting of its terrestrial) flU\&ialand aerial domains) includingits 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 partof the internal waters of the Philippines.

99 H. Yorac) Rbe Obilippine Claim 0/ Iht Qpmlly IslandJ Gm"!++53 Phil. L. R02) '1983(.

30 TIle coastal State exercises over the continental shelf sovereignrights for the purpose of exploring it and exploiting its naturalresources.

2. The rights referred to in paragraph 1 are exclusive in the sense thatif the coastal State does not explore the continental shelf or exploitits natural resources) no one may undertake these activities withoutthe express consent of the coastal State.

3. The rights of the coastal State over the continental shelf do notdepend on occupation) effective or notional) or on any expressproclamation.

4. The natural resources referred to in tills Part consist of the n1ineraland other non-living resources of ilie sea-bed and subsoil togetherwitll living organisms belonging to sedentary species) iliat is to say)orgaillsms which) at the harvestable stage) either are immobile on orunder the sea-bed or are unable to move except in constant physicalcontact with the sea-bed or the subsoipoO

The rights above stated will accrue to the features directly connectedand contained in the continental shelf. The sovereign rights for the purposeof exploring and exploiting the natural resources of its continental shelfgranted above is now considered customary internationallaw.101

As discussed above) Article 76 deals with the operational aspects ofthe delineation of the continental shelf&souter limits beyond the 200 nauticalmiles from the baseline from which the breadth of the territorial sea ismeasured.102 The continental shelf of a coastal State contains the sea-bedand subsoil of the submarine areas that extend beyond its territorial seathroughout the natural prolongation of its land territory to the outer edge ofthe continental margin or to a distance of 200 nautical miles from thebaselines from which the breadth of the territorial sea is measured where theouter edge of the continental margin does not extend up to that distance.103

After determining the delineation of the Philippine&Scontinental shelf) theouter limits of the extended continental shelf must be ascertained. UNCLOS

IlXl UNCLOS) Art. 77.1111 M. M. Magallona) ,+upmnote 35 at 436.0/1 Qupra note 12 at 1-25.fa5 UNCLOS) Art. 76 '1(.

provided for the means to approximate the outer limits of the extendedshelf by using the following formula:

'a( For the purposes of this Convention) the coastal State shallestablish the outer edge of the continental margin wherever themargin extends beyond 200 nautical miles from the baselines fromwhich the breadth of the territorial sea is measured) by either:

'i( a line delineated in accordance with paragraph 7 by reference tothe outermost fIxed points at each of which the thickness ofsedimentary rocks is at least 1 per cent of the shortest distance fromsuch point to the foot of the continental slope; or

'ii( a line delineated in accordance with paragraph 7 by reference tofIxed points not more than 60 nautical miles from the foot of thecontinental slope.

'b( In the absence of evidence to the contrary) the foot of thecontinental slope shall be determined as the point of maximumchange in the gradient at its base.to-l

The concept of the extended continental shelf was brought about bythe differences in topologies of various continental shelves. Figure 5.0 belowshows the difference between the mandatory continental shelf and theextended continental shelf.

-,,-_K &&&&&&OJ

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

The fixed points comprising the line of the outer limits of thecontinental shelf on the sea-bed) drawn in accordance with paragraph4 'a( 'i( and 'ii() either shall not exceed 350 nautical miles from thebaselines from which the breadth of dle territorial sea is measured orshall not exceed 100 nautical miles from the 2)500 metre isobath)which is a line connecting the depth of 2)500 metres.105

Notwithstanding the provisions of paragraph 5) on submarine ridges)the outer limit of the continental shelf shall not exceed 350 nauticalmiles from the baselines from which the breadth of the territorial seais measured. lOG

In sum) to locate the extended continental shelf) one must firstdetermine the archipelagic baseline.lo7 The territorial sea begins from thebaseline up to 12 nautical miles seaward.lOB The contiguous zone) however)is between 12 and 24 nautical miles from the baseline.lo9 Then the EEZ isdetermined by measuring 200 nautical miles from the baseline.332 Themandatory continental shelf lies below the EEZ consisting of the seabedand its subsoil.lll The extended continental shelf is then measured usingArticle 76'4) 5( but only up to 350 nautical miles from the baseline as statedin Article 76'6(. Essentially) the extended continental shelf may be Joundbetween the EEZ and 350 nautical miles from the baseline of the coastalstate as shown in Figure 6.0 'see following page(.

Spratly is outside the 200 nautical mile EEZ of the Philippines but iswithin the 350 nautical mile limit set by Article 76 '6(. As such) thePhilippine claim on Spratly may easily be established through determiningthe outer limits of its extended continental shelf.

"'4 ld+Art. 76 '5(."PDGld+Art. 76 '6(."&7ld+Art. 47."&8ld+Art. 3.3*3A ld+Art. 33.11>1 ld+Art. 48)57.111 ld+Art. 76 '1(.

The claim of the Philippines is sufficiently supported by the necessarygeological and topological surveys done through remote sensing imagery andsea based survey. The bathymetric map in Figure 8.0) infra shows exactlywhere the Spratly is and how it straddles the continental shelf of thePhilippines as depicted by the light blue color on the map.

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The Spratly is undisputedly within the extended continental shelf ofthe Philippines located between its established EEZ and 350 nautical milesfrom EEZ.ll3 Based on the voluminous scientific studies in the South ChinaSea incorporating bathymetric) paleontologic) and geophysical information)the geology of the "Dangerous Grounds" or Spratly is the same withPalawan micro con tinen tal block.114

Figure 7.0 infra+shows the evolution of the continental shelf of theSouth China Sea and how the shelf was formed. At "d3" is where the

112 Ami!abk at http://discO\|eryindonesiacom/images/fig1.jpg.&&&Basedon inter\&iewswith Engr. Nancy t\guda) Geologist) and Engr. Jenny Barreto) Geophysicist) of

Pacific Consultants Incorporated Philippines"<L. Zamoras and A. Matsuoka) La!ampaya Qound Group9 A Jurassic,Earty Crelaceou--,Atm9tiona'W Complex in

I2lll"uangaJ--,!and+Morth Oa!aUtJn B.o+k (Ohilippifm)+ 107 Journal of the Geological Society of Japan)S) 316-336'2001(.

current geological formation of Sprady can be found on top of thePhilippine continental shelf.

Several well data 'Figure 8.0( indicate that Sprady 'KIG( isunderlain by similar lithologic formations) therefore) it can be argued thatSprady is the submerged natural extension of the Palawan landmass.33e

The Philippines must submit to the Secretary General of the UnitedNations the charts and other relevant information) including geodetic data)permanendy describing the outer funits of its continental shelf.IIG ThePhilippines is also required to provide to the Commission on the Limits ofthe Continental Shelf 'CLCS( all information on the limits of the continentalshelf beyond the 200 nautical miles from the baseline from which thebreadth of the territorial sea is measured and the CLS will makerecommendations to the coastal States on matters related to theestablishment of the outer limits of the continental shelf.l17 \V&herea coastalState intends to establish the outer limits of its continental shelf beyond 200nautical In.il.esfrom the baselines from which the breadth of the territorialsea is measured) it shall submit particulars of such limits to the Commissionon the Limits of the Continental Shelf 'CLCS( along with supportingscientific and technical data as soon as possible.IIB The prefuninaryprocedure is shown in Figure 9.0.

115 Based on consultation with Engr. Jenny Barreto) Ccophysicist.116 UNCLOS. Article 76 '9()117 UNCLOS) Art. 76 '8(.118 CLCSj40) Rule 4S - Submission by a Coastal State) 2July 2004.

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Schematic geologic cross sections across the South China Sea withevolutionary stages off North Palawan 'stage a-d( and off South Palawan

119 J- J. U. Schluter) K. Hinz) and M. Block) Ree.onoQ .ra.i:!+raphieRerraneJ and De.achmen. Oaul.in)!-of.he Jou.hChina Qea and Julu Qea+Marine Geology) v. 130)39-78 '1996(.

1211 Vmhbathymetric map above shows seafloor depth with respect to mean sea leyel; awihbk athttp://www.ngdc.noaa.gov /mgg/ gebco.

To establishing its outer limits) the Philippines must submitinformation on its outer limits to the CLCS established under Annex II ofthe UNCLOS for its recommendation. The original deadline for submission)which provided 10 years to each coastal State) commenced on 13 May1999.121 The final limits of the shelf established by a coastal State on thebasis of the recommendation of the CLS shall be final and binding.122 Stateparties to the UNCLOS created the CLCS to further aide the littoral statesin agreeing to the outer limits of their continental shelf. CLCS aims toprovide 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 informationused by the coastal state in substantiating its claim over the extendedcontinental shelf.124 The CLCS consists of 21 members) who are experts inthe field of geology) geophysics) and hydrography) elected by States Partiesto the UNCLOS from among their nationals) having due regard to the needto ensure equitable geographical representation) who shall serve in theirpersonal capacities. The submitting State shall also include in theirsubmission the names of any Commission members who have provided itwith scientific and technical advice.125 To date) the CLCS has alreadyreceived submissions from the Russian Federation) Brazil) Australia) Irelandand New Zealand. CLCS has already made recommendations on thesubmission by Russian Federation.126

The initial procedure requires the Philippines to comply with therequired submission in Annex II before 9 May 2009. Failure of a coastalstate to submit the necessary information to CLCS on or before the deadlinewill have adverse legal repercussions on its claim. Furthermore) submissionsrelated to disputes between coastal states shall be governed by Annex I ofCLCSj40.127

121 International Symposium on Scientific and Technical Aspects on the Establishment of the OuterLimits of the Continental Shelf beyoml 200 Nautical Miles) at http://www.mofa.go.jp/policy /maritime/symposium/ shelf06'(3.pdf. 'updated as of February 2006(

122 UNCLOS) Art. 76 '8(.123 K. l-lioz) Rhe I-0JU of tbe Qea QyJlem9Qome major!eat""'J of bigb "+.ewn+"for manne Jtie0ltijif ""+ean9ber-·-and

explorationJ+ AAPG I ledbcrg Conference) Hannover) Germany.013ld347 Rule 45 'b() CLCS/40.015ld127 Rule 46) CLCS/40.

In light of the extensive scientific and legal work required for thesubmission) the Philippines is at risk of running out of time. While theNational Mapping and Resources Information Authority 'NAMRIA( hascompleted most of the geological information) the Philippine governmenthas yet to establish a cohesive legal strategy for winning its claim.

The establishment of a legal team and strategy will be more criticalafter the actual submission. It is at this stage where the deliberations on thevalidity of the claim in the CLCS are conducted. As shown in Figure 10.0)the Commission will conduct deliberations and evaluations over thesubmission of each coastal state and will conduct consultations among theclaimants prior to rendering its recommendation to the Secretary-General. Afavourable recommendation from the CLSCS is critical since the outer limitsof the continental shelf established by a coastal State on the basis of the

128 H. Brekke) member of the CLCS) The Modus Operandi of CLCS athttp://www.continentalshelf.org.

recommendation of the Commission shall be final and binding) as providedby Article 76 '8(.129 Unfortunately) the provision of Article 76 '8( maybeconstrued as not granting the CLCS judicial authority to decide on themerits of the claims. As worded) it seems that the recommended outer limitsof the continental shelf will only be binding if the coastal states adapt andrecognize such limits. It can be deduced that any recommendation made byCLCS on the outer limits that is met with resistance from any of the coastalstates through diplomatic protest or inaction to accept suchrecommendation will render it ineffective.

Nonetheless) even if the binding nature of the recommendation ofthe CLCS is in question) the weight of its authority will be influential in anysubsequent arbitration between claiming states. Furthermore) the acceptanceof the CLCS of the outer limits of the continental shelf of the Philippines isa prerequisite to making it final and binding. no In other words) thesubmission of the Philippines to the CLCS is a necessary but disputablecondition to finalizing its claim.

129CLCS/40) Rule 53.I3•Questions and answers: The Continental Shelf) RH

http://www.regjeringen.no/nb/ dep/ ud/ dok/lover_regler/ retningslinjer/2006 / Questions-and-answers-The-continen tal-Shelf. html?id =436938.

131H. Brekke) H!JjR note 128.

The basis for the Philippine claim on Spratly evolved from historicalevidence and geopolitical considerations to the exact sciences of geology andgeophysics. The indisputable proof of the location of Spratly and theexacting method advocated by UNCLOS in its determination should makethe claim an open and shot case. To highlight the significance of Article 76to the cause of the Philippines) the other bases for the claim will bediscussed below.

As discussed earlier) in 1956) Thomas Cloma "discovered" andclaimed the Kalayaan Islands Group 'KIG) also known as Spratly( andestablished several colonies on them. While no government ever recognizedthe lawfulness of this "state)" Cloma persisted with his claim until 1974)when "ownership" was officially transferred under a "Deed of Assignmentand Waiver of Rights" to the Philippine government. Jt 1978 the Philippinegovernment officially claimed the KIG through Section 1 of PD. 1596132

where the metes and bounds of the KIG were explicitly highlighted) whichplaced the KIG under the province of Palawan. Cloma&s&discovery&of KIGand its subsequent acquisition of the Philippines are the foundation of thePhilippine claim on Spratly premised on discovery.

Unfortunately) while discovery is the oldest mode of acquiring titleto territory) it does not per se confer legal title unless the requisites ofpossession and administration are present.133 Modern international lawclearly recognizes that mere discovery of some territory is not sufficient tovest in the discoverer valid title of ownership to territory. Rather) discoveryonly creates inchoate title) which must be perfected by subsequentcontinuous and effective acts of occupation) generally construed to meanpermanent settlement. 134 The use of discovery as basis for the claim isfurther weakened by the fundamental question of whether proof ofhistorical title today carries sufficient legal weight to validate acquisition ofterritory.

354 "Declaring Certain Areas of the Philippine Territory and Providing for their Government andAdministration .}}

m J. R. Coquia and M. Defensor Santiago) International Law 259-260 '1998(; 1. A. Cruz) InternationalLaw) 110 '2003(.

134 H. Roque) Jr) "China&s Claim to the Spratlys Islands Under International Law)" jNllrnal oZEneU ~,Malll"+0 Puollrres Killi J '1997(: 189-211) cited in Joyner) supra note 71.

In many instances) the Philippines have cited proximity and nationalsecurity as bases for clairning Spratly. On 15 May 1950) the governmentstated that it should occupy the Spratly Islands together with the UnitedStates because it was closer to Palawan compared to China and Vietnam. OnMay 17) President Quirino said that if the Chinese Kuomingtang troopsreally occupied the Spratly) then the Philippines did not need to occupythem. However) if the islands fell into the communist&s hands) thePhilippine&ssecurity is threatened. Spratly should then belong to the nearestcountry according to international law) which is the Philippines. In February1974) the Philippine government stated that the its forces already occupiedfive islets of the Spratly. It justified its occupation as "the strategicimportance of the Kalayaan area to the Philippine security. "135

There is no international law providing that geographical proxirnityand the national security theory may be used to justify the Philippine claimto the Spratly group of islands.136 Furthermore) using proximity as basis forthe claim will be far from prudent given that many isolated islands in theSulu Sea are much closer to Borneo than to the Philippines. An argumentbased on proximity will have adverse effects on other territorial disputes.

National security) on the other hand) is an untenable legal basis -forthe Philippine claim to the Spratly islands as this essentially requires militaryaction. At present) the Philippines is in no position to back up any militaryposturing against the other claimants.

Article 76 and Annex II of the UNCLOS clearly define the legal andscientific framework for coastal States to establish their claims over theircontinental shelves) either mandatory or extended. CLCSj 40 and itspertinent annexes have provided the clear procedure for a coastal state tomake a valid submission. The Philippines rights will be adequately resolvedwith empirical scientific proof of its claim over the underlying extendedcontinental shelf that contains the Spratly. Unfortunately) while the law andthe science are clear) the overall legal strategy of the Philippine governmentis yet to be crafted. As the deadline for the submission to the CLCS nears)

m Qupra notc 51-n" GT

the Philippine claim has yet to overcome some critical issues less it forfeitsits right to the Sprady.

As of the writing of this paper) no State claimants to the Spradyhave formally submitted their claim to the CLCS.137 Nonetheless) thegovernment must prioritize the immediate completion of the informationrequired by the CLCS. Inspite of the rapidly approaching deadline for thesubmission to the CLCS and the extensive legal and scientific researchneeded) the Office of the President only released E.O. 612 on 27 March2007) which reorganized the DFA-MOAC138 into the CMOA139 under theOffice of the President. The CMOA is tasked to complete the Submissionfor the CLCS. Almost eight years had passed from the 13 May 1999agreement to submit the necessary information to the CLCS. This highlightsthe government&s lack of focus and priority in substantiating thePhilippines&Sclaim to its extended continental shelf.

The multi-agency comrrusslOn consists of NAMRIA) theDepartment of Foreign Affairs) and the Department of Justice. NAMRIAhas. almost completed the technical work and is ready to turnover all itsscientific information to the DFA and DOJ for their reference. The DFAmust work quickly on the diplomatic front and engage the other claimants inbilateral and multilateral talks.

The DOJ) on the other hand) must prepare the brewinginternational confrontation in the ITLOS. Due to the vast importance of theSpradys to all the claimants owing to its unique geography and naturalresources) it is unlikely that all claims by the other States will be abandonedin favor of the Philippines. Hence) it is more probable that the DOJ willseek an international arbitral award in order to secure whatever rights mayaccrue to the Philippines based on Article 77. Other Parties may be able tobring disputes to be solved under binding dispute setdement mechanisms)such as the International Tribunal for the Law of the Sea 'ITLOS( inHamburg.140 The Philippines is still unprepared for any internationalconfrontation in ITLOS or ICJ.

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.14" The World Conservation Union) Rbe QtatuJ of Matural PeJoumJ on tbe Higb,Qea-f+80 'IVCN(.

A careful scan of the provisions of the UNCLOS and its annexes donot contain any provision that will penalize a coastal state to lose its claimover its continental shelf for failure to submit to the CLCS. Nonetheless) thefailure to do so will result in the breach of the Philippines of its fundamentalinternational obligation to adhere to the rules of the UNCLOS.141 Such abreach 142 of international obligation will be detrimental to any futurearbitration involving the Philippine claim over Spratly.

UNCLOS provides for compulsory procedures for resolving inter-State conflicts. This mechanism is provided in Section 2 of Part :Arv of theUNCLOS which provides that where no settlement has been reachedthrough peaceful means) any dispute concerning the interpretation orapplication of the UNCLOS shall be submitted at the request of any party tothe dispute to the court or tribunal having jurisdiction as provided in thesame section. Unfortunately Section 3 of Part W9T also provides forlimitations and exceptions to the applicability of the compulsory proceduresin Section 2. Specifically) Article 298'1( provides that a party state maydeclare in writing that it does not accept anyone or more of the compulsoryprocedures and binding settlements over disputes concerning interpretationor application of Article 83143 relating to sea boundary delimitationsincluding issues on delimitations of continental shelves between opposite oradjacent states. This will essentially leave the resolution of the conflict inSpratly to diplomatic avenues of bilateral or multilateral negotiations and

141 The Tenth Meeting of State Parties to the Convention agreed to defer the final date for presenting aSubmission to 13 May 2009 for states that had ratified the UNCLOS prior to 13 May 1999. 'Commission onLimits of Continental Shelf concludes 13 sessions) UN Press Release) May 24) 2004) at http://www.un.org/News/Press/ docs/2004/ sea 1793.doc.htm(.

&42Article GO'3'b(() Vienna Convention on the Law of Treaties '1969( defines such action as a materialbreach 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 coasts1. 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 theInternational Court of Justice) in order to achieve an equitable solution.

2. If no a"")eement can be reached within a reasonable period of time) the States concerned shall resortto the procedures provided for in Part XV.

3. Pending agreement as provided for in paragraph 1) the States concerned) in a spirit of understandingand 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. Sucharrangements shall be without prejudice to the final delimitation.

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

agreements between the State claimants. These provisions may effectivelycut the legal remedy of the Philippines and transpose it to the realm of purediplomacy.

In the course of this research) it was discovered that there is anoverwhelming effort on the part of the Chinese government to generateinternational support for its claim on Spratly. This is evident in the manyweb sites featuring the South China Sea conflict and China&salleged rightfulclaim on Spratly. Furthermore) while China continues to aggressively takethe diplomatic route) it continues to fortify its military installation in theMischief Reef. China is iron-willed in maintaining its highly questionable&nine-dashline&that has re-drawn China&sterritorial boarder to substantiallyinclude almost all of the South China Sea including the Spratly.144This isinconsistent with the 12 nautical mile territorial sea limitation ofUNCLOS.145

It is very likely that China will submit its claim to CLCS butknowing fully that its claim stands on shaky ground with Article 76) it willsimultaneously embark on military adventurism in the area of Spratly. It willbe to China&sadvantage to bully each of the claimants to negotiate with it onbilateral talks rather than in multilateral discussions so as to assert itsdominance. It is latently obvious that China will resort to military aggressionif diplomacy fails.

The provisions of Article 76 are clear and the scientific datagathered through remote sensing and other geo-mapping applicationsindicate that the Spratly is within the Philippines&extended continental shelf.The technical work required by Article 76 has been substantially completedby NAMRIA. What remains is the legal and diplomatic work by theDepartment of Justice and Department of Foreign Affairs on theirrespective domains.

&44C. W. Pumphrey) ed.) The Rise of China in Asia: Security Implications) 235 '1982(.034 PT..

The scientific process required by CLCS is as complex as the legalpreparation that the government must embark on. Not only will the legalteam be required to be trained in the technology and methodologies ofUNCLOS) they will also be tasked to map out the permutations of legalstrategies.

To highlight the complex legal scenarios facing the Philippine legalteam) the procedure for the claims will vary depending on the success ofeach of the claimant&ssubmission. The ideal scenario) for example) is for thePhilippines to submit on time while the other claimants default in theirsubmission to the CLCS. If the CLCS agrees with the Philippine submissionand no diplomatic protest is flied by the other claimants) the establishedouter limits of the extended continental shelf will be final and binding. Thiswill give the Philippines undeniable rights over Sprady. On the otherextreme) if the Philippines defaults in its submission and the other claimantsare successful) then the Philippines must resort to filing a diplomatic protestto prevent any agreed limits to become final and binding. Should the otherclaimants proceed to arbitration) the Philippines may then invoke Article298'1( to prevent further arbitration proceedings. In between these twoextreme scenarios are the permutations of the success or default of the otherclaimants. Note that there are differences in the specific islands claimed bythe claimants as well as differences in their legal positions.

In order to reinforce the Philippine position with UNCLOS) all therelevant laws pertaining to our maritime boundaries must be amended toexacdy conform to the standards and prescriptions of UNCLOS) particularlyPD 1596 and RA 3046 as amended by RA 5446.

At the centre of the tapestry of conflict in the South China Sea is theSprady group of islands. In order to unravel the conflict) the internationalcommunity) together with the affected coastal states) has ratified andadopted UNCLOS. Article 76 of UNCLOS) pertaining to the delimitation ofthe continental shelf) has provided the means to untangle the conflict.

Article 76 of UNCLOS and its related annexes provided both theforensic bases and the procedural rules for determining the empiricalevidence in establishing the Philippine claim over Spratly. Unfortunately) italso sets a deadline for the submission of the claims of the coastal states tothe CLCS) which is on 13 May 2009. If the Philippine government fails tosubmit its claim to the CLCS) it will most likely result in the possibleforfeiture of the Philippines&sright over the Spratly. As the deadline rapidlyapproaches) the Philippine government must immediately put together itslegal and diplomatic strategy to complement the incontrovertible geological)geophysical) geographical) and hydrographical research that places theSpratly as part of the extended continental shelf of the Philippinearchipelago.

The legal work needed involves both legislative and executiveactions in amending needed legislation that will further align our laws withUNCLOS. More legal research must be encouraged in the area ofinternational arbitration and territorial rights claims based on treaty orconvention rules. Extensive legal study on Article 76 and its applicationmust be further encouraged.

Finally) the Philippine government must promptly priotltlze thecompletion of it submission to the CLCS before the stated deadline. It mustimmediately designate the legal team that will prepare for the possiblearbitration process with the ITLOS.

In fine) winning the claim on Spratly is not a mere acquisition of ahandful of islands endowed with vast oil and hydrocarbon deposits. Securingthe Spratly will preserve the Philippines territorial sovereignty and keepintact its dignity in the international community. To lose the claim wouldsimply be tantamount to a capitulation to the chaos of the sea.