‘Res Nullius’ – The Spratlys’ deeper history

On my first term in the House of Representatives back in 1991, I took an early interest on the issues involving the Spratlys, a small archipelago located on the western flank of Palawan within the West Philippine Sea composed of hundreds of reefs, atolls, islets and islands. Within these high seas, an estimated 5 trillion dollars-worth of sea-born commerce pass through. I had become an avid student of the history of the Kalayaan Group of Islands (KGI), which under 1987 ConstitutiMarites Dañguilan Vitug’s ‘Rock Solid- How the Philippines Won Its Maritime Case against China’. on was added as Palawan’s 23rd municipality and part of the legislative district of the province I represented in the House. For my masteral thesis in International Relations, I wrote about the KGI’s past, present and my vision of its future.

Last month when I was in Manila, I chanced upon the last copy at the Ateneo de Manila University Press of Marites Dañguilan Vitug’s ‘Rock Solid- How the Philippines Won Its Maritime Case against China’. This book according to Victor Andres C. Manhit, President of Strat base ADR Institute “is a comprehensive account of the epic legal success of the Philippines’ territorial claim over that of China” involving the Spratlys, before the Permanent Court of Arbitration (PCA) in The Hague, Netherlands.  China, of course defaulted, refusing to bow to the Court’s jurisdiction. Consequently, China’s main anchor for its “historic rights” argument – the so-called “nine-dash line” theory – was invalidated.

Despite her not being a lawyer, Ms. Vitug was able to capture the legal scenario, its historical antecedents, and the depth of the exchanges in the proceedings in such a riveting way that the reader’s interest remains to the last page.

She described the outcome of the case as an “overwhelming victory for the Philippines”. I could not agree more and even the fact that China refused to be a party to the proceedings was inconsequential. Indeed, with or without China’s evidence on record, the Philippine claim was “rock solid”.

That said, let me say that ‘Rock Solid’s historical coverage was a bit condensed. I must state here that the Spratlys has a history going past the Marcos regime and other administration’s work in legitimizing and strengthening the Philippine claim over the Spratlys. My own research revealed that the pre 2nd World War era could in fact serve as an appropriate starting point for our claim and that important events thereafter up until the early 1970’s were as much as the historical and legal bases for the country’s sovereignty over this group of islands. Let me outline those significant events as follows:

  • Japan’s Greater East Asia Co-prosperity Sphere – prior to the start of the 2nd World War in the Asia-Pacific with the Japanese bombing of Pearl Harbor in Hawaii in 1941 and with China being under Japanese subjugation, its powerful war machine was rolling over smaller pacific nations to defeat. It was at this point that Japan, already at the victory’s doorstep, established the so-called Greater East Asia Co-prosperity Sphere that placed these nations under Japan’s sovereignty including the Spratlys and later the Philippines. At that time, only France was in one of the bigger islands, having constructed a fertilizer plant. Historical data remains, pointing to several French structures and markers. Filipino fishermen venturing as far as those islands confirmed the existence of French markers. This was also the beginning of the Vietnamese claim over some islands, Vietnam then being about to be liberated from French colonial bondage.
  • The 1951 Treaty of San Francisco – altho’ the 2nd World War ended in August 1945 with Japan’s formal surrender to the allied forces on board the battleship Missouri, it was this 1951 treaty that officially ended the war, with Japan relinquishing its sovereign rights over the nations forcibly made to join its Greater East Asia Co-prosperity Sphere. The Spratlys, with this relinquishment, became res nullius (owned by none). Other parts of the Spratlys were placed under Philippine trusteeship.
  • Admiral Tomas Cloma’s ‘discovery’ in 1956 of Freedomland (within the Spratlys) and his subsequent claim of island ownership – the United Nation’s Convention on the Law of the Sea (UNCLOS) and more appropriately, international agreements on maritime concerns prior to the UNCLOS declared that discovery of island/s can only ripen to sovereignty rights if the island/s were/are res nullius coupled with effective occupation. After discovering the Spratlys, self-styled Admiral Tomas Cloma from Bohol planted his own flags on the 52 islands and islets, called them Freedomland and established under his governance his fishing stations in the bigger islands. He also registered his claim with the United Nations and the Philippine Government, relentlessly pressing his occupation and ownership of ‘his islands’. Jailed for some time during martial law for refusing to sign waiver documents over Freedomland in favor of the government, he began to lose interest on Freedomland. Later, he did sign the waivers for a P1.00 consideration and was forthwith set free. In 1957, then Foreign Affairs Secretary Carlos P. Garcia (concurrently the Vice-President of the Philippines and coincidentally a province-mate of Cloma) pursued the latter’s claim over Freedomland this time on behalf of the Philippine government, arguing that Cloma’s claim was actually for the country.
  • Mitra’s 1971‘wake-up speech’ for Freedomland – Ramon V. Mitra, Jr. was a young congressman from Palawan and minority leader in 1971 when he delivered what later famously became known as Mitra’s ‘wake-up speech’ in the House of Representatives for Freedomland. This was 2 days after returning from his fishing trip to Freedomland during which his speed boat, veering close to one of the islands, was fired upon by what he believed were nationalist forces of Taiwan. In his speech, he expressed shock in knowing that Freedomland was then actually occupied by hostile foreign forces, shocked even more by the fact that the congressional leadership was unaware of the situation and called for urgent action, diplomatically or otherwise to protect the Philippine claim.

Notably, from the establishment by Japan of its Greater East Asia Co- prosperity Sphere prior to and during the 2nd World War until the 1976 declaration by President Marcos creating the Municipality of Kalayaan (Freedomland) nothing was heard, observed, or seen from communist China regarding the Spratlys. But with respect to nationalist China or Taiwan, its forces were occupying some parts of the Spratlys as early as 1971. As far as I could recall, it was only in the 1980’s onwards that the People’s Republic of China(PRC) began to rear its ugly head in the Spratlys by occupying Mischief Reef, fortified it into its sea garrison. Mischief Reef by the way is only around 200 nautical miles from southwest Palawan. From then on, China’s expansionist policies took the better of the situation by creating man-made islands for military use of reefs and atolls therein. By virtue of its “creeping invasion”, the PRC is now the dominant presence in the Spratlys.

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