Both China and the Philippines attempt to justify reasons for making their claims to the various islands in the South China Sea. China gives historical reasons while the Philippines cites the rule of law. But both parties seem to have forgotten the Treaty of Paris that had set the demarcation lines of the Philippines when Spain ceded the islands to the US. The treaty was signed and recognized by countries around the world and became it the last word in deciding the Philippine territory.
BayanKo adviser Jose Alejandrino refers to this treaty in a draft constitution for consideration by the constitutional panel headed by former Chief Justice Reynato Puno:
“Article 7 - The Philippines comprises all the territory ceded to the United States by Spain at the Treaty of Paris on December 10, 1898, the limits of which are set forth in Article III of said treaty, together with all the islands embraced in the treaty concluded between the United States and Spain on November 7, 1900 and the treaty concluded between the United States and Great Britain on January 2, 1930 and all territory over which the present government of the Philippines exercises jurisdiction.?”
This article is based on Article III of the 1898 Treaty of Paris. It set the boundaries of Philippine territory as follows:
“Spain cedes to the United States the archipelago known as the Philippine Islands, which comprise the islands situated between the following lines: A line which runs west to east near the 20th parallel of north latitude across the centre of the navigable channel of Bachi, from the 118th to the 127th degrees of longitude east of Greenwich, from here to the width of the 127th degree of longitude east to parallel 4 degrees 45 minutes of north latitude. From here following the parallel of north latitude 4 degrees 45 minutes to its intersection with the meridian of longitude 119 degrees 35 minutes east from Greenwich. From here following the meridian of 119 degrees 35 minutes east to the parallel of latitude 7 degrees 40 minutes north. From here following the parallel of 7 degrees 40 minutes north to its intersection with 116 degrees longitude east. From here along a straight line to the intersection of the tenth parallel of latitude north with the 118th meridian east, and from here following the 118th meridian to the point whence began this demarcation.”
This was the extent of the Philippine national territory recognized by the US and Spain. The US Congress ratified the Treaty of Paris.
The definition was contained in the 1935 Constitution. The 1973 Constitution modified it in more general terms without establishing boundaries. The 1987 Constitution merely copied the provision of the 1973 Constitution.
Are the shoals and reefs claimed by the Philippines that are also being claimed by China included in the Treaty of Paris? If they are, then they form part of Philippine national territory. If they are not, they are just claims based on historical and other considerations. For example, Scarborough Shoal is outside the boundaries of Article III of the Treaty of Paris.
Will the US to come to the aid of the Philippines under the mutual defense treaty if Scarborough Shoal is occupied by a foreign power? The US said it does not apply in a South China Sea conflict as the Spratlys are not part of the “metropolitan territory” of the Philippines.
The problem began when the 1973 Constitution during Marcos time deleted the boundaries of Philippine national territory defined in the 1935 Constitution to comply with the Treaty of Paris.
Ambassador Alberto Encomienda who has followed the history of the dispute said Marcos issued PD1596 in 1978 proclaiming ownership and sovereignty over a group of islands and shoals in the South China Sea. Was this to pave the way for the issuance of his PD?
Alejandrino noted, “Any country can define its national territory in its Constitution any way it wants. The question is will it be recognized by the international community?”
There may be other reasons. The question on what constitutes territorial limits of the sea is not as straightforward as it seems. By 1967 only 25 countries still adhered to the 3-mile limit of water extending from a nation’s coastline, 66 nations extended it to 12 nautical miles and 8 nations to 200 nautical miles. The UN decided to put some order in the system by drawing up a Law of the Sea that was UNCLOS.
UNCLOS came up with five definitions: what constituted internal waters, territorial waters, archipelagic waters, exclusive economic zones, and the continental shelf. The two that most concern the Philippines in my view are archipelagic waters and exclusive economic zones.
Archipelagic waters are waters inside a baseline drawn between the outermost points of the outermost islands, subject to these points being sufficiently close to each other. A state has full sovereignty over these waters but foreign vessels enjoy right of innocent passage.
Exclusive economic zones extend out to 200 nautical miles from a coastal state’s baseline. The state has sole exploitation rights over all natural resources.
The Law of the Sea Convention defined the rights and responsibilities of nations with respect to the use of the world’s oceans. It also established guidelines for businesses, the environment, and the management of marine natural resources. But it did not define the territorial boundaries of nations.
While the US Congress ratified the Treaty of Paris defining the national territory of the Philippines, it has not ratified UNCLOS.
The UNCLOS has gaps, particularly in defining and balancing rights and duties in the exercise of transit rights through archipelagic waters that will require the cooperation of major maritime powers like China.
The Aquino government has opted for “compulsory” arbitration by the UN in its conflict with China because it believes a “rules-based approach” is the only way to settle maritime entitlements of claimant countries than bilateral talks. Assuming it is successful and the UN tribunal accepts jurisdiction, it could backfire one day on the Philippines.
As Ambassador Encomienda pointed out, “The ultimate end of establishing regional ocean governance cannot be achieved by starting on the wrong foot through compulsory arbitration to address maritime issues” because the Philippines as an archipelagic state has similar concerns on the nine-dash line.
The nine-dash line was originally an eleven-dotted line used by Taiwan in 1947 to justify its claims in the South China Sea. In 1949 China’s Chou Enlai endorsed the line and revised it to nine.
Encomienda suggested the better approach is bilateral talks to resolve differences. I agree. It makes no sense to shut the door to a major maritime power like China that remains an important player on the Asian scene. This is like cutting our nose to spite our face.