Summit on Kalayaan islands
The Institute of International Legal Studies of the University of the Philippines Law Center held last Monday and Tuesday a National Summit on the Kalayaan Group of Islands and the West Philippine Sea. The summit sought to define the national interest in the disputed islands, as well as to produce a road map on how to best assert these interests.
One hundred seventy-five stakeholders attended the summit. There were representatives from different government agencies including the Departments of Foreign Affairs, National Defense, Interior and Local Government, Environment and Natural Resources, Transportation and Communications and the National Security Council. Also in attendance was the very colorful mayor of the municipality of Kalayaan, Mayor Eugenio Bito-onon Jr and Rep. Dennis Socrates of the second district of Palawan.
The Kalayaan Island Group and the West Philippine Sea first became controversial when France laid claim to them in 1933. The governments of Japan, the United Kingdom, and China protested this. According to France, the islands were first discovered by its protectorate, Vietnam, and were administered by a state trading company, “Dio Hwang Sas” as early as 1802. China’s claim, similarly, was on an alleged historic title beginning with its discovery on 200 BC, during Emperor Wu’s reign. It argues that the Chinese first occupied the islands as early as 618, and that the disputed islands have been charted and reflected in maps as belonging to China. It claimed that both France, and its successor Vietnam, are estopped from making claim to the islands since both countries have recognized China’s title to them at various points in history, the latest of which was a statement attributed to Premier Phan Van Dong in an note to Zhou Enlai.
Japanese forces briefly occupied the islands during World War II. At the end of the war, Russia suggested that Japan be made to relinquish its title to the islands in favor of China. Forty-nine out of 52 countries attending the San Francisco Peace Conference protested this. The Philippines, in the same conference, asked for authority to administer the islands on behalf of the allied forces due to its security significance to the country. This was denied and consequently, Japan was made to relinquish its title to them without specifying to which country in particular.
The Philippine title to the islands is based on discovery and effective occupation of islands which are separate and distinct from those occupied by Japan during the war and from those claimed by both China and Vietnam. Merchant school owner Thomas Cloma discovered these islands in the early 1950s. At the time of their discovery, they have not been previously reflected in any map. Since then, the islands were by law made part of the Municipality of Kalayaan, appended to the Province of Palawan, made part of our continental shelf and our Exclusive Economic Zone, and subject to the grant of concessions to explore the area specially for oil. Since we are closest to the islands, the Philippines also enjoys the prima facie presumption of effective occupation of the islands, and may argue that as part of the Philippine archipelago, it has been under its constructive occupation.
The summit highlighted areas of disagreement between academics and the Foreign Affairs Department . For instance, the DFA supported the passage of the Philippine Archipelagic Baselines Law that Dean Merlin Magallona and I impugned as unconstitutional before the Supreme Court. This law appended the KIG to the main Philippine archipelago under the regime of islands. We argued that this weakened our claim to KIG because this regime is utilized only for offshore islands. By resorting to this, we have forfeited what should have been our sole entitlement as the lone archipelagic claimant, that is, to append the islands as part of our archipelago.
The DFA position, though, is the law had to be passed since compliance with the United Nations Convention on the Law of the Seas would give us “moral ascendancy” over China. I’m not sure though if such really matters in international relations since China, meanwhile, has recently utilized its “nine-dash lines” to append the entirety of the South China Sea as part of its territorial waters—in utter disregard of UNCLOS. Moreover, while compliance with the convention may lead to a favorable ruling from international tribunals that may be tasked to adjudicate on the matter, China has said that it would not submit issues involving its territory to any such tribunals. It appears that our “boy scout” mentality maybe for naught.
This notwithstanding, the overwhelming consensus in the summit was to support the President on his most recent pronouncement on the issue. The current policy is that “what is ours belongs to us. What is disputed may be shared.” This entails an identification of areas, which are not disputed, and the possibility of joint use for those that are in dispute. This is a pragmatic policy since the Philippines should immediately reap the harvest for areas not in dispute and meanwhile, allow us also to benefit from the wealth in areas that remain controversial. Of course, the reality is that China, as a superpower, will ultimately determine if it will allow us to share the resources from the disputed areas. Hopefully though, President Benigno Aquino III’s current position will at least provide the beginnings of a peaceful resolution of the current dispute.
The summit is only the second activity of the Institute since I became its director for the second time this July. I was also head of the Institute—created because of the need to focus scholarly activity into alternative approaches or strategies in dealing with Philippine foreign policy questions—from 2004 to 2008. The IILS was established to undertake research and extension functions in international law, comparative law, and international relations, specifically in areas that affect the Philippine interests in the global arena.
This Friday at 10 a.m., at the Malcolm Hall of the UP College of Law, the Institute will feature Anwar Ibrahim who will talk on “Rizal, Ninoy and Asian Leadership”. Come early to have a seat.
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