Part II
The archipelagic doctrine is an arbitrary redefinition of the country’s national boundary. The Philippines, and lately Indonesia, have adopted this doctrine because of the geographical fixture of the islands. The implication is, even if the body of water that separates the two islands is beyond the 12-mile limit but within the jurisdiction of that state and there are alternative routes to which vessels could pass, that body of water shall be treated as “internal water.” The Treaty of Paris has impliedly recognized this doctrine. Accession by other states to the Treaty Paris has elevated this doctrine as part of international law.
Under international law, the right of innocent passage is accorded to foreign vessels and warships to pass through internal waters because the passageway is narrow where the territorial sea of one or two states adjacent to each other overlap to make it necessary to allow foreign vessels to pass provided: one, there is no other way for the ship to pass; and two, the passage would not interfere in the peace and security of the burdened state/s. This applies to the Strait of Sunda in Indonesia, Strait of Malacca between Singapore and Indonesia, Suez and Panama Canals. In the Montreux Convention of 1936, warships not exceeding 15,000 tons are allowed to cross the Straits of Dardanelles and Bosporus from the Black Sea to the Mediterranean.
This is differentiated by the freedom of navigation invoked by the US navy in the South China Sea. Freedom of Navigation refers to a big body of water where a great portion is an open high sea because the expanse exceeds the 12-mile limit from the outermost baseline of the coastal state. Vessels or warships are free to navigate the open sea but not within the 12-mile limit to violate the territorial sea of the coastal state. Here, China is not preventing US warships from exercising the freedom of navigation but is warned not to violate the 12-mile limit including the air space above it.
Our adoption of the archipelagic doctrine, however, has narrowed our territorial seas because the 12-mile limit follows the contours or sinusitis of the islands around, between and connecting the archipelago. We unilaterally amended the coordinates agreed in the Treaty of Paris to justify our enclosure of that body of water separating the two islands. For us to affirm our right to declare those bodies of water as “internal waters” would consequently reduce our territorial sea under the Treaty of Paris.
When the United Nations Convention on the Law of the Sea was formally ratified in 1982 and came into force and effect in 1994, the 200-mile limit demarcated as exclusive economic zone unavoidably included the Panatag Shoal. However, even if we take it that the Spratly or Kalayaan Group of Islands falls within the EEZ, we could not stretch our boundary to what the US has bequeathed to us under the Paris Treaty.
When President Marcos issued P.D. No. 1596 making the Kalayaan Group of Islands a municipality of the Philippines, that did not assuage the truth that the islands are outside what have been demarcated in the Treaty of Paris. This author is inclined to believe that P.D. No. 1596 virtually retouched the coordinates agreed in the Treaty. To quote:
“Section 1. The area within the following boundaries: KALAYAAN ISLAND GROUP From a point [on the Philippine Treaty Limits] at latitude 7º40’ North and longitude 116º00’ East of Greenwich, thence due West along the parallel of 7º40’ N to its intersection with the meridian of longitude 112º10’ E, thence due north along the meridian of 112º10’ E to its intersection with the parallel of 9º00’ N, thence northeastward to the intersection of parallel of 12º00’ N with the meridian of longitude 114º30’ E, thence, due East along the parallel of 12º00’ N to its intersection with the meridian of 118º00’ E, thence, due South along the meridian of longitude 118º00’ E to its intersection with the parallel of 10º00’ N, thence Southwestwards to the point of beginning at 7º40’ N, latitude and 116º00’ E longitude; including the sea-bed, sub-soil, continental margin and space shall belong and be subject to the sovereignty of the Philippines. Such area is hereby constituted as a distinct and separate municipality of the Province of Palawan and shall be known as “Kalayaan.”
Because the Kalayaan Group of Islands is proximate to Sulu, Mindanao and Palawan and contiguous to the continental shelf that forms the Philippine archipelago, President Marcos assumed that the islands do not belong to any state or res nullius. The decree states that “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.”
However, this presumption is false. Renunciation of sovereignty does not result in those islands becoming res nullius because it means the islands were never owned by anybody from the very beginning. Notably, the islands were occupied by France up to 1930 until they were subsequently acquired by Japan. Japan’s renunciation of sovereignty over those islands under the San Francisco Treaty on Dec. 8, 1951 was by reason of its defeat in World War II. Article 2 (f) states to quote:
“(f) Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands.”
Similarly, China has far more superior rights over the Spratly islands: First because the San Francisco Treaty specifically mandated Japan to renounce its rights, title and claims over the Spratly and Paracel Islands, and invariably that means Japan is duty-bound to return those islands to China. Second, the Kalayaan group of islands or Spratly is beyond the boundaries agreed by Spain and the US in the Treaty of Paris.
This explains why the US cannot openly support our claim over these disputed islands much that it was instrumental and even acted as the principal broker of the San Francisco Treaty. The US cannot now make a disclaimer for having these islands returned to China though at that time was represented by Taiwan. This now makes the position of Roilo Golez and Justice Antonio Carpio ridiculous. It is doubtful whether the US will faithfully stand by its obligation to defend us much that it was the one that handed over the disputed islands back to China.
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