The disputed Spratly Islands in the South China Sea has become a flashpoint particularly in this election year in the United States given President Donald Trump’s campaign strategy to escalate confrontation with China. He believes that such escalation is a winning strategy even if it destabilizes the region in the process. China is fighting back following a game plan they learned from the masters: United States and Russia.
Even with the 2016 United Nations Convention on the Law of the Sea (UNCLOS) ruling invalidating China’s 9-dash line while recognizing the Philippines right to its Exclusive Economic Zone (EEZ), China continues to fortify these islands to strengthen its maritime claims. The United States decision to insert itself into the fray, however, will not guarantee resolution of the disputes any sooner. It’s a fair question then to ask, if we will ever see these conflicts resolved in our lifetimes.
Even if claimant parties agree to a “Sea Code of Conduct” as being worked out in the Association of SouthEast Asian Nations (ASEAN), the matter over ownership will not be settled amicably given China’s aggressive actions in recent years including building artificial turfs on otherwise, uninhabitable rocks. The Code of Conduct will only determine joint use by claimant parties.
To give context to what this all really means, perhaps clarifying certain terms will enlighten the conversation. First, the Exclusive Economic Zone or EEZ, is a concept adopted in 1982 by UNCLOS that gives sovereign states special rights to explore and use marine resources in the zone which is measured as 200 nautical miles from its coast. These resources include energy production from water and wind in the zone including the continental shelf below it.
The EEZ, however, does not include territorial sea or the continental shelf beyond it. The UNCLOS ruling meant that the Philippines has a sovereign right (NOT sovereignty) to fish or explore BELOW the surface water. The surface is international waters. These differences gave rise to the overlapping claims between Malaysia, Indonesia, Vietnam, Brunei, Taiwan, the Philippines, and of course China.
Clear enough? NOT really. To clarify further, we have to go back beyond the 2016 ruling beginning with Magellan’s landing in 1521 that made the Philippines as Spain’s territory. Spain’s territorial map of Las Islas Filipinas included Bajo de Masinloc (Scarborough Shoal) or currently called the Panatag Shoal.
But then, the American-Spanish War in Cuba in 1898 extended to the Philippines when Admiral Dewey engaged the Spanish Fleet in the Battle of Manila Bay. Spain lost Cuba to the Americans and sold the Philippines for $20 million dollars in the Treaty of Paris. America became the new owner.
In 1939, Imperial Japan annexed both the Spratly and Paracel Islands under the administrative control of Japanese occupied Formosa (Taiwan). Shortly thereafter, Japan invaded the Philippines. America bombed Hiroshima/Nagasaki and forced Japan’s surrender. But as the new conqueror, the United States, aware of maritime significance of these South China Sea islands, decided that nobody owned them and said so. But in 1951, the signed San Francisco Peace Treaty and the Sino-Japan Treaty awarded custody (NOT ownership) of these islands to Republic of China (Taiwan) under the international principle of uti possidetis juris (lawful possession).
Upon attaining independence in 1946, the Philippines laid claim to the Spratly Islands only to be withdrawn upon America’s reminder that they don’t belong to the Philippines, to appease Taiwan’s Chiang Kai-sek. A smart Filipino mariner named Tomas Coloma stumbled upon these islands in 1955 and claimed it as Freedomland (Kalayaan) under the international Doctrine of Discovery (Terra Nullius – you discover it, it’s yours). He created his own government, built small structures to give it a semblance of legality.
But came the Chinese who made Coloma sign a piece of paper relinquishing his claim. Taiwan then sent a small force to occupy part of the Scarborough Shoal. Beleaguered Coloma ceded his ownership to the Philippines in 1974. President Ferdinand E. Marcos signed two presidential decrees in 1978 claiming the Kalayaan (Spratly) Island Group (KIG) as part of Philippine sovereign territory and a distinct municipality of Palawan.
China claims the Spratly Islands are part of its territorial sovereignty citing various treaties and archeology that supports ownership and occupation of these islands. The Geneva Accords in 1954 ended the French Indochina War and divided the former French territories into Vietnam, Laos, and Cambodia. Vietnam claims Spratlys as part of its territory. Spratly Islands used to be “part” of South Vietnam but since there is now one Vietnam, thus the claim. Taiwan is also considered as a province of the People’s Republic of China, therefore, any of its claims is China’s too.
In 2012, President Benigno Aquino cited the Marcos decrees as proof that not only is the Philippines entitled to its 200 nautical mile EEZ, the decrees extended the country’s claim beyond the EEZ and creating in effect, to another 200 mile EEZ entitlement. He then named the area west of the archipelago as the West Philippine Sea. China was not happy, to say the least. The UNCLOS 2016 ruling, however, shrunk the Philippine claim and confined Philippine EEZ to within 200 miles from its coast. In other words, the Marcos baseline that included these “Regime of Islands” has now been invalidated because of Aquino’s suit.
Furthermore, the UNCLOS ruling meant that the Marcos baseline that basically included Sabah, which is clearly within Malaysia’s EEZ, has been mooted too as part of the Philippines EEZ. Marcos wanted to strengthen the country’s Sabah claim after the botched Jabidah invasion. Hence, any further Sabah claim invoking the Marcos baseline is now problematic because of the UNCLOS ruling.
In light of all these, we can now reflect back on some of the maritime incidents involving these claimants in the past, as relevant to the present. Marcos and Aquino’s belligerence towards China on the Spratly Islands brought us to this day of continued confrontation with China who are now clearly planted on these islands.
Where was the U.S. in all these? Aside from the Freedom of Navigation sorties in the area, the U.S. stayed on the sidelines. It cannot even loudly support the UNCLOS ruling because being a signatory to UNCLOS, the ruling might impact its own claims over little uninhabited islands in the Pacific Ocean acquired through its own Guano Island Act. With bird shit as a pretense, the U.S. has now acquired what it calls the U.S. Minor Outlying Islands, including Puerto Rico, Guam, Samoa and the Virgin Islands as part of its territories.
China clearly learned well from history including its own. Russia invaded Afghanistan in 1979 and occupied it until 1989. The U.S. invaded it in 2001 and is still there. The United States then invaded Iraq in 2003 and it is still there. In 2014, while the U.S. was busy in the Middle East, Russia annexed Ukraine’s Crimea and it is still there. Bluntly, superpowers get away with it, was the invaluable lesson. So, is China leaving the South China Sea soon?