5 China’s dispute with the Philippines over the Nansha Islands Abstract: This chapter discusses China’s dispute with the Philippines over the Nansha Islands. The Philippines’ relatively recent claim in the South China Sea relies on geographic proximity, national security, effective occupation and control and legal definition of the EEZ, none of which is supported by solid evidence and international law. Geographic proximity has long been dismissed by international law and practice as a principle to support territorial claims. Continued protests from China and other parties have failed the applicability of claiming the Nansha Islands as res nullius. The principle of ‘land dominating the sea’ refuses the extension of jurisdiction from water to land features. The Philippines has been keen to invite in external powers, including the United States and foreign oil companies, to consolidate its presence in the disputed area. It is predictable that with pressure from domestic politics and increasing ties with the United States, the Philippines will adopt more assertive policies and approaches to sustain its claim in the SCS. Key words: China, the Philippines, Nansha Islands disputes, cooperation. Compared to Vietnam, the Philippines’ sovereignty claim over the South China Sea is more recent, relying on its interpretation of international laws and practice instead of historical evidence. As a US ally, the Philippines has never hesitated to get the United States involved in Southeast Asian matters and help internationalise the SCS issue. 123 Regional Cooperation and Development in the South China Sea Basis of the Philippines’ claims The Philippines’ official claims and related legal documents The Philippines claims most of the Nansha Islands (Spratlys), but not Nanwei (Spratly) Island itself or several others in that immediate vicinity (Smith, 2010: 227). The Philippines first clarified its national territory through the 1935 Constitution of the Republic of the Philippines, which provides that: The Philippines comprises all the territory ceded to the United States by the Treaty of Paris concluded between the United States and Spain on the tenth day of December, eighteen hundred and ninety-eight, the limits which are set forth in Article I of said treaty, together with all the islands embraced in the treaty concluded at Washington between the United States and Spain on the seventh day of November, nineteen hundred, and the treaty concluded between the United States and Great Britain on the second day of January, nineteen hundred and thirty, and all territory over which the present Government of the Philippines Islands exercises jurisdiction. (Congress of the Philippines, 1935) On the issue of maritime boundary, the Philippines is one of the earliest Asian countries to propose extending its maritime jurisdiction beyond its territorial sea. Several national laws were enacted to clarify the boundaries of its territorial sea and claim rights over its archipelagic waters, continental shelf and EEZ. On 18 June 1949 the Philippines issued Republic Act No. 387, otherwise known as the Petroleum Act of 1949, Article 3 of which provides that: All natural deposits or occurrences of petroleum or natural gas in public and/or private lands in the Philippines, whether found in, on or under the surface of dry lands, creeks, rivers, lakes, or other submerged lands within the territorial waters or on the continental shelf, or its analogue in an archipelago, seaward from the shores of the Philippines which are not within the territories of other countries, belong to the State, inalienably and imprescriptibly. (Congress of the Philippines, 1949) 124 China’s dispute with the Philippines over the Nansha Islands Republic Act No. 3046, issued on 17 June 1961, defines the baselines of its territorial sea (Congress of the Philippines, 1961). This was amended by Republic Act No. 5446 on 18 September 1968, which formally publicised the baselines of the Philippine territorial sea and the coordinates of base points (Congress of the Philippines, 1968). According to these two acts, the baselines of the territorial sea are defined by 81 base points and the lines connecting them; all the waters beyond the outermost islands of the archipelago but within the boundaries set forth in the treaties mentioned in Article 1 of the 1935 Constitution of the Republic of the Philippines comprise the territorial sea of the Philippines. On 20 March 1968 the Philippines issued Presidential Proclamation No. 370, which clarified its continental shelf limit and declared its jurisdiction over the extended area. According to the document, the continental shelf under Philippine jurisdiction extended to ‘where the depth of the superjacent waters admits of the exploitation of such resources’ (Marcos, 1968). To support its attempt to extend its jurisdiction over maritime areas, the Philippines relied on its interpretation of international law. The current Constitution of the Republic of the Philippines, which was amended in 1978, has deleted expressions referring to historical treaties and instead refers to its archipelago status, providing that: The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (Congress of the Philippines, 1978) On 11 June 1978 the Philippines issued Presidential Decree No. 1596, proclaiming that the majority of the Spratly Islands belong to the Philippine Kalayaan Islands group, and declaring that it enjoys sovereignty over them. It cited reasons to support this claim: …much of the above area is part of the continental margin of the Philippine archipelago; 125 Regional Cooperation and Development in the South China Sea …these areas do not legally belong to any state or nation but, by reason of history, indispensable need and effective occupation and control established in accordance with international law, such areas must now be deemed to belong and be subject to the sovereignty of the Philippines; …while other states have laid claims to some of these areas, their claims have lapsed by abandonment and cannot prevail over that of the Philippines on legal, historical, and equitable grounds. (Marcos, 1978) On the same day the Philippines issued Presidential Decree No. 1599 to claim a 200 nm EEZ, and reaffirmed its claims to territorial sea and continental shelf (Official Gazette, 1978). On 8 December 1982 the Philippines signed UNCLOS, and ratified it on 8 May 1984, making it one of the earliest member states of the convention (UN Division for Ocean Affairs and the Law of the Sea, 2011). On 10 March 2009 the Philippines enacted Republic Act No. 9522, a new law adjusting its archipelagic baselines defined and described by 101 base points. Article 2 provides that the Philippines exercises ‘sovereignty and jurisdiction’ over the Kalayaan Islands group and Scarborough Shoal (Huangyan Island), both of which were determined as ‘regimes of islands’ (Congress of the Philippines, 2009). On 8 April 2009 the Philippines submitted ‘A partial submission of data and information on the outer limits of the continental shelf of the Republic of the Philippines’ to the UN Commission on the Limits of the Continental Shelf, establishing the outer limits of its shelf in the Benham Rise region east of the Philippine islands. No limits were put forward for its SCS continental shelf (Smith, 2010: 223). The document specified that ‘this partial submission is without prejudice to the right of the Philippines to make other submissions for other areas at a future time’ (Philippines, 2009b). Basis of claims Proximity, security and economic significance The area claimed by the Philippines is within a fairly short distance of the Philippine archipelago. Its strategic importance is seen in Japan’s previous construction of air and naval bases, a repair base and weather 126 China’s dispute with the Philippines over the Nansha Islands and radio stations on the islands in the area, using them as a staging post for its occupation and control during the Second World War. The Philippines considers the Nansha Islands as an important component of its national defence (McDorman, 1993: 267). The Nansha Islands and their surrounding waters are important fishing grounds and contain oil and gas reserves for the Philippines. Fisheries are one of the pillow industries in the Philippines, and contribute 4.3 per cent of its GDP. The population involved in fisheries amounts to 1.61 million, accounting for 15 per cent of the total population. Because of its proximity and rich fishery resources, the Nansha area is one of the major fishing grounds for Philippine fishermen (Qiao, 2011: 71). Oil and gas reserves in the area also attract Philippine interest in development. As a net oil importer, the Philippines has launched favourable policies to draw support from foreign oil companies in order to explore oil and gas in the Nansha Islands (Buszynski and Sazlan, 2007: 163). Its effort has resulted in significant growth in terms of oil production and raised the strategic importance of this area. Effective occupation and control The Philippines has relied on