Legal Title to Territory in the Case of the Spratly Islands

Speaker: Prasit Aekabutra

Language: English

Place: Nan-an Building 213

Time: March, 2 2016 13.30-16.00

Professor Dr. Prasit Aekaputra is a Dean at the Faculty of Law, Huachiew Chalermprakiet University, Thailand.

The legal title is under the concept of international law while the land dominates the sea principle is the basic concept of international law of the sea. Thus, the Spratly Islands case involved public international law and international law of the sea.

Spratly Islands includes Islands, Islets, Reefs, Low-tide elevation. They are different in legal regime.

Claims of disputed countries

PRC and Taiwan claim that Spratly Islands have been an integral part of China for nearly 2,000 years since the Han dynasty (206 B.C. to 220 A.D.) based on abundant evidences of historic.

Philippines’ claim based onterra nulliusand Occupation namely, said that in September 1956, after the Republic of China occupied the largest island, Ligao Island (Itu Aba), Tomas Cloma decided to cede and sell all the territories of his state to the Philippines for just one peso (US$0.50 of the time). For this claim Prof. Prasit said that this fact can not establish legal title to territory to the Philippines because it waspurely private act and no effective occupation occurred on behalf of the Philippines. Moreover, the claim of Philippines also based on her domestic Law through Presidential Decree No. 1596 on July 11, 1987 and In the Philippine Presidential Decree No. 1596 in 1978 as well as based on UNCLOS 1982.

Philippines’ Claim before the Permanent Court of Arbitration on 22 January 2013.

1. The Philippines claims that their rights are derived from legal regimes under UNCLOS 1982 namely the regime of Territorial Sea, Contiguous Zone, Exclusive Economic Zone and Continental Shelf Zone.

2. The “nine dash lines” of China are contrary to the UNCLOS 1982 and invalid.

3. Submerged features in South China Sea are not above sea level at high tide, and are not located in a coastal State’s territorial sea, are part of the seabed and cannot be acquired by a State, or subjected to its sovereignty, unless they form part of that State’s Continental Shelf under Part VI of the convention.

4. Mischief Reef, McKennan Reef, Graven Reef and Subi Reef are submerged features that are not above the sea level at high tide, are not islands under the Convention, are not located on China’s Continental Shelf; and China has unlawfully occupied and engaged in unlawful construction activities on these features.

5. Mischief Reef, McKennan Reef, Graven Reef and Subi Reef are part of the Philippines’ Continental Shelf under Part VI of the Convention.

6. Scarborough Shoal, Johnson Reef, Cuarteron Reef and Fiery Cross Reef are submerged features that are below sea level at high tide, which qualified as “rock” under Article 121 (3) of the Convention, and generated an entitlement only to a Territorial Sea no broader than 12 M; and China has unlawfully claimed maritime entitlements beyond 12 M from these features;

7. China has unlawfully prevented Philippines vessels from exploiting the living resources in the waters adjacent to Scarborough Shoal and Johnson Reef;

8. The Philippines is entitled under UNCLOS to a 12 M Territorial Sea, a 200 M Exclusive Economic Zones, and a Continental Shelf under Parts II, V, and VI of UNCLOS, measured from its archipelagic baselines;

9. China has unlawfully claimed rights to, and has unlawfully exploited, the living and non-living resources in the Philippines’ Exclusive Economic Zones and Continental Shelf; and non-living resources within its Exclusive Economic Zones and Continental shelf; and

10. China has unlawfully interfered with the exercise by the Philippines of its rights to navigation under the Convention.

Vietnam claims that it has occupied Spratly and Paracel Islands since 17^th century on the basis ofterra nulliusand continuous display of sovereignty by peaceful occupation over the said islands until these islands were invaded by Chinese armed force.

Brunei claims that some islands or islets of Spratly Islands especially in the southern part such as Louisa Reef which situated in the EEZ and Continental Shelf Zones of Brunei must be considered as belonging to Brunei.

Malaysiaclaims some islands in the Spratly Islands such as Swallow Reef (laying Layang/Terumbu Layang/Pulau Layang Layang) which was under control in 1983 by arguing that these islands are form as an integral part of its continental shelf and located in its EEZ zone under UNCLOS 1982. Furthermore, Malaysia claims that these islands areres nulliusbecause Japan renounced her sovereignty over the islands according to San Francisco Treaty and therefore Malaysia has a right to occupy and annex these islands.

Some remarks from Prof. Prasit

He said that some claims of the parties in this dispute may be not valid namely,

1. Historic title shall be valid when they fulfills with two elements; effective occupation (effectivité principle) and intention to claim (animus decidendi)

2. Claim on the basis ofterra nulliusmust have a strong evidence that no State had ever claimed or occupied the disputed area or even had claimed or occupied in the past but did already abandon its claim or its occupation later on. 3. Claims based on EEZ and Continental Shelf regime under UNCLOS 1982 can be entertained only for the maritime claims but not for the claims over the territory.

4. All claims in the Spratly Islands dispute are more or less lack of solid arguments and need to have more evidences in order to clarify legal title to territory.

Suggestions of Prof. Prasit to PRC

1. If China can extend her continental shelf beyond 200 NM., it will be a big overlapping zones in South China Sea and may be a dead lock to conclude a maritime boundary treaty in this region if the parties to the dispute refuse to negotiate or can not find a mutual conclusion.

2. Generally speaking, China may have an abundant evidence to prove her historic title over the islands but China needs to prove that her occupation is an evidence of the continuous display of sovereignty over the islands.

Written by YODSAPON NITIRUCHIROT.