Disputes About Corals: Mischief Reef part2

Disputes About Corals: Mischief Reef part2

In a previous article, Mischief on Mischief Reef, one of the ongoing projects became a done deal allegedly with a string attached – a joint Phil-Sino oil exploration ( called the Joint Marine Survey Undertaking or JMSU in short) in the Spratlys Islands, which is now eyed as the next Senate probe. A flashback to the Mischief Reef episode:

Click map to enlarge

A Shopping List

As the belligerent rhetoric escalates (Armis bella non venenis geri – War is waged with weapons, not with poison.), Paranaque Representative Roilo Golez, former PN officer, urged government to acquire a squadron of fighter planes to back up its claim on the Kalayaan Islands. Golez proposed the acquisition of 18 multirole fighters like the Israeli KFIR jets costing $7 million each equipped with the latest weapons such as missiles capable of 20 miles range and smart bombs.

The proposal may have had an eye on the AFP modernization plan, but dismissed as mere bravado. The AFP modernization, however, was a live project, 15-year program of the administration that surveyed prices of military hardware (March 1999):

Aegis type destroyer – $1 billion; armament: Tomahawk cruise missile, Harpoon ship-to-ship missile, phase array radar.

F15, F16, F/A18 jet fighter = $100 million

B2 - $2.1 billion

B52 bomber plus support tankers & craft - $7.5 billion

Aircraft Carrier, complete, aircraft not included - $20 billion

Apache helicopter - ??

Patrol boat - $3 million (2^nd hand)

Frigate - ??

Submarine, mini, (ala Israeli Dolphin class) modified capable of carrying cruise missiles with nuclear warheads (weapons not included) - ??

The stuff is what chief-of-staffs dream of, and that’s exactly its ending --- a dream.

The de facto Chinese occupation and construction on the Mischief Island establishes a strong claim that simultaneously weakens Philippine rights. It is generally held that a legal element of sovereignty requires not only the legal right to exercise power, but the actual exercise of such power. ("No de jure sovereignty without de facto sovereignty.") In other words, neither claiming nor merely exercising the power of a Sovereign (by possession) is sufficient; sovereignty requires both elements. Even in International law, the rule that possession is nine-tenths of the law is recognized.

House Bill No. 3216 which seeks to amend Republic Acts 3046 and 5446, the laws defining the Philippines’ maritime borders, has been approved on second reading on mid-March 2008, and was up for approval on third and final reading. When Rep. Antonio Cuenco announced that the House of Representatives abruptly halted deliberations on House Bill 3216, a measure that delineates Philippine territory in the South China Sea extending to the Kalayaan Islands Group and Scarborough Shoal, he justified the move on the grounds he’d been informed by the Chinese embassy of their objections.

House bill 3216 redefining the country's archipelagic baselines won't be acceptable under international law because the new baselines would encompass islands not actually possessed by the country and outside of the archipelago, said Henry Bensurto, secretary general of the Commission on Maritime and Oceanic Affairs Secretariat, of the Department of Foreign Affairs.

In particular, the measure identified at least six base points (structures built on isles to mark a state's claim) that the country did not actually possess, It's a baseline that will have difficulty being recognized under international law, Bensurto said.

Under UNCLOS, an archipelago is allowed to draw straight archipelagic baselines that should not include islands outside of the archipelago. Islands outside of the archipelago, such as the Kalayaan Group of Islands and the Scarborough Shoal, should be delineated through the method of normal baseline under the principle of the "regime of islands,'' Bensurto said.

By excluding these islands from the baseline, the Philippines isn't dropping its claims over them since the basis for these claims, Presidential Decree 1896, would remain in effect even if a new baseline law is passed. The baseline would be the “reckoning point'' for the delineation of the extended continental shelf (ECS), the seabed beyond the 200-nautical mile continental shelf Bensuerto said.

Beijing has expressed displeasure over the passage of the measure, specifically the provisions including the Kalayaan Group of Islands, Scarborough Shoal, and the waters off Zambales within the Philippine baseline.

UNCLOS

The acronym UNCLOS stands for United Nations Convention on the Law of the Sea. It has something to do with our territorial sovereignty. During the era of sailing ships, a nation’s sovereignty extended up to three miles from the shoreline – the range of cannons at the time. When modern battle ships of World War I mounted cannons capable of hurling shells 12 miles, the territorial sovereignty was extended to 12 miles. However, our Constitution defined our territory to conform to the Treaty of Paris concluded with the Spanish-American War of 1898. The boundaries will be modified by UNCLOS.

The International Hydrographic Bureau defines the South China Sea as the body of water stretching in a Southwest to Northeast direction, whose southern border is South Sumatra and Kalimantan and whose northern border is the Strait of Taiwan from the northern tip of Taiwan to the Fukien coast of China. In the center of this sea are the Paracels and the Spratly islands.

The Spratly islands are coral, low and small, about 5 to 6 meters above water, spread over 160,000 to 180,000 square kilometers of sea zone with a total land area of 10 square kilometers only. Many of these islands are partially submerged islets, rocks, and reefs that are little more than shipping hazards not suitable for habitation. The islands are important, however, for strategic and political reasons, because ownership claims to them are used to bolster claims to the surrounding sea and its resources. The area is rich in natural resources such as oil and natural gas.

Several countries have claims in the area. These claims are based upon internationally accepted principles extending territorial claims offshore onto a country's continental shelf, as well as the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

The 1982 convention created a number of guidelines concerning the status of islands, the continental shelf, enclosed seas, and territorial limits, the most relevant to the disputed Spratlys:

Article 3, which establishes that "every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles";

Articles 55 - 75 define the concept of an Exclusive Economic Zone (EEZ), which is an area up to 200 nautical miles beyond and adjacent to the territorial sea. The EEZ gives coastal states "sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil..."

Article 121, which states that rocks that cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

The establishment of the EEZ created the potential for overlapping claims in semi-enclosed seas such as the South China Sea. These claims could be extended by any nation which could establish a settlement on the islands in the region. South China Sea claimants have clashed as they tried to establish outposts on the islands (mostly military) in order to be in conformity with Article 121 in pressing their claims.

In late 1998 the presidents of China and the Philippines agreed to form a committee of experts to advise on confidence-building measures.

In late November 1999 officials of ASEAN agreed to draft a regional code of conduct to prevent conflicts over the Spratly Islands in advance of the ASEAN summit in Manila. The Philippines, which drafted much of the proposed code, sought to align ASEAN's members in a common stance against what it saw as Chinese expansionism in the Spratlys. China agreed to hold talks with ASEAN member nations on the newly formulated draft code of conduct. But China, which claims the entire South China Sea, signaled it was not ready to agree to the ASEAN draft. Vietnam wanted the code to cover the Paracels while Malaysia did not want the code to refer to all of the South China Sea. China, which is not an ASEAN member and claims all of the islands, opposed inclusion of the Paracels in the code..

In January 2000 photographs of Mischief Reef in the Spratly Islands were shown to the foreign ministers of the other eight ASEAN countries by Philippine foreign minister, Domingo Siazon. The photographic evidence showed that China had expanded installations on the reef since 1995, when it first started building what it said were shelters for fishermen. There are four sites on the reef with installations that could be connected to form a fortress, or a five-star hotel for fishermen.

On 4 November 2002 the Governments of the Member States of ASEAN and the Government of the People's Republic of China signed the "Declaration on the Conduct of Parties in the South China Sea." The Parties undertook to exercise self-restraint in the conduct of activities in the South China Sea that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.

China and the Philippines have discussed possible joint exploration for petroleum in the disputed Spratly Islands in the South China Sea. The speaker of the Philippine House of Representatives, Jose de Venecia, said the chairman of China's parliament, Wu Bannguo, made the proposal 31 August 2003 during talks in Manila. Chinese Foreign Minister Li Zhaoxing vowed to increase investments in the Philippines to match the growing Philippine investment in China. The two ministers also discussed the territorial disputes in the South China Sea.

In September 2003 representatives of the Philippines, China and other claimant countries of the Spratly Islands signed a declaration of peace to promote the development of the resources in the disputed islands. The declaration was signed at the Asian Association of Parliaments for Peace (AAPP) conference in the Philippines.

In March 2005, the national oil companies of China, the Philippines, and Vietnam signed a joint accord to conduct marine seismic experiments in the Spratly Islands for economic purposes.

Suggested confidence-building measures among claimant countries include joint research and development in the Spratlys. Among the suggestions to enhance the development of the Spratly Islands include the creation of a marine park; establishment of a South China Sea Institute for Marine Resources Management, conducting a joint survey and assessment of the mineral and hydrocarbon potential and implementation of maritime safety and surveillance measures.

Mischief Reef is part of the Spratly Islands. Mischief Reef was discovered by Henry Spratly in 1791 and named by the German Sailor Heribert Mischief, one of his crew. China has sent naval vessels into the area and constructed crude buildings on some of the islands. Beijing maintains that the shacks are there solely to serve Chinese fishing boats. Manila describes the buildings as "military-type" structures. According to reconnaissance photos by the Philippine Air Force, these structures do not look like fishermen's sanctuaries. They seem to have radar systems which are not normally associated with the protection of fishermen.

The Kalayaan Islands, as Filipinos call some of the Spratlys, lie in a shallow section of the South China Sea west of the Philippine archipelago. Kalayaan is a rich fishing area that had been identified as a potential source of petroleum deposits. Tomas Cloma, owner of a maritime training school, visited the islands in 1956, claimed them for himself, named them Kalayaan (Freedomland), and then asked the Philippine government to make them a protectorate.

Vietnam brands as erroneous the Philippine theory that the Spratly Islands were "res nullius" when Tomas Cloma "pretended to 'discover' the Vietnamese Truong Sa islands in 1956". Manila regularly tried to extract from the United States a declaration that it would defend the Philippines' claim to the Kalayaans as part of the Mutual Defense Treaty between the Republic of the Philippines and the United States of America, but the United States just as regularly refused so to interpret that treaty.

The Philippine government first put forth informal claims to Kalayaan in the mid-1950s. Philippine troops were sent to three of the islands in the Kalayaans in 1968, taking advantage of the war situation in the Republic of Vietnam. In 1974, the Philippine government declared that it had garrisoned five of the islands. In 1978 Marcos made formal claims by declaring that fifty-seven of the islands were part of Palawan Province by virtue of their presence on the continental margin of the archipelago. The Philippine military continued to garrison marines on several islands.

The Spratly Islands dispute eased since the 1990s. This was due, in part, to China's rising economic stature (its GDP averaging over 9% annually) and the interdependency it, in turn, fostered amongst Asian nations. China knows that any crisis in the South China Sea could severely restrict the commercial shipping traffic that is vital to their continued prosperity. Another contributor to the relative calm is fact that proven oil reserves in the area are disappointingly low so far.

Philippine claims on the Spratly Islands

While the Philippine claim to the Spratly Islands was first expressed in the United Nations General Assembly in 1946, Philippine involvement in the Spratlys did not begin in earnest until 1956, when on 15 May Filipino citizen Tomas Cloma proclaimed the founding of a new state, Kalayaan (Freedom Land). Cloma’s Kalayaan encompassed fifty three features spread throughout the eastern South China Sea, including Spratly Island proper, Itu Aba, Pag-asa and Nam Yit Islands, as well as West York Island, North Danger Reef, Mariveles Reef and Investigator Shoal. Cloma then established a protectorate in July 1956 with Pag-asa as its capital and Cloma as “Chairman of the Supreme Council of the Kalayaan State”. This action, although not officially endorsed by the Philippine government, was considered by other claimant nations as an act of aggression by the Philippines and international reaction was swift. Taiwan, the PRC, South Vietnam, France, the United Kingdom and the Netherlands lodged official protests (the Netherlands on the premise that it considered the Spratly Islands part of Dutch New Guinea) and Taiwan sent a naval task force to occupy the islands and establish a base on Itu Aba.

Tomas Cloma and the Philippines continued to state their claims over the islands In October 1956 Cloma traveled to New York to plead his case before the United Nations and the Philippines posted troops on three islands by 1968 on the premise of protecting Kalayaan citizens. In early 1971 the Philippines sent a diplomatic note on behalf of Cloma to Taipei demanding the ROC’s withdrawal from Itu Aba and on 10 July in the same year Ferdinand Marcos announced the annexation of the 53 island group known as Kalayaan, although since neither Cloma or Marcos specified which fifty three features constituted Kalayaan, the Philippines began to claim as many features as possible. In April of 1972 Kalayaan was officially incorporated into Palawan province and was administered as a single “poblacion” (township), with Tomas Cloma as the town council Chairman and by 1992, there were twelve registered voters on Kalayaan. The Philippines also reportedly attempted to land troops on Itu Aba in 1977 to occupy the island but were repelled by ROC troops stationed on the island. There were no reports of casualties from the conflict. In 2005, a cellular phone base station was erected by the Philippines’ Smart Communications on Pag-asa Island.

The Philippines base its claims of sovereignty over the Spratlys on the issues of res nullius and geography. The Philippines contend Kalayaan was res nullius as there was no effective sovereignty over the islands until the 1930s when France and then Japan acquired the islands. When Japan renounced their sovereignty over the islands in the San Francisco Peace Treaty in 1951, there was a relinquishment of the right to the islands without any special beneficiary. Therefore, argue the Philippines, the islands became res nullius and available for annexation. Philippine businessman Tomas Cloma did exactly that in 1956 and while the Philippines never officially supported Cloma’s claim, upon transference of the islands’ sovereignty from Cloma to the Philippines, the Philippines used the same sovereignty argument as Cloma did. The Philippine claim to Kalayaan on geographical bases can be summarized using the assertion that Kalayaan is distinct from other island groups in the South China Sea because:

It is a generally accepted practice in oceanography to refer to a chain of islands through the name of the biggest island in the group or through the use of a collective name. Note that Spratly (island) has an area of only 13 hectares compared to the 22 hectare area of the Pag-asa Island. Distance-wise, Spratly Island is some 210nm off Pag-asa Islands. This further stresses the argument that they are not part of the same island chain. The Paracels being much further (34.5nm northwest of Pag-asa Island) is definitely a different group of islands

A second argument used by the Philippines regarding its geographical claim over the Spratlys is that all the islands claimed lie within its archipelagic baselines, the only claimant who can make such a statement. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) stated that a coastal state could claim two hundred nautical miles of jurisdiction beyond its land boundaries. It is perhaps telling that while the Philippines is a signatory to UNCLOS, the PRC and Vietnam are not. The Philippines also argue, under Law of the Sea provisions, that the PRC can not extend its baseline claims to the Spratlys because the PRC is not an archipelagic state. Whether this argument (or any other used by the Philippines) would hold up in court is debatable but possibly moot, as the PRC and Vietnam seem unwilling to legally substantiate their claims and have rejected Philippine challenges to take the dispute to the World Maritime Tribunal in Hamburg.

In the mid-1970s, the Philippines pursued its own detente with China, giving priority to economic considerations. The two sides agree to settle their bilateral disputes in accordance with the recognized principles of international law, including the UN Convention on the Law of the Sea.

The Mischief Reef incident of 1995 was the first time for China to engage in military confrontation with an Association of Southeast Asian Nations (ASEAN) member other than Vietnam. The incident set off a chain reaction among Southeast Asian countries, individually, and collectively as the ASEAN. The United States, Japan, Australia, New Zealand, and even the European Union also expressed concern. Later in the year China pledged to use international law and the 1982 United Nations Convention on the Law of the Sea (UNCLOS) as basis for negotiating South China Sea issues and signed a "code of conduct" with the Philippines formalizing its rejection of force to resolve the dispute.

The two sides agree to promote cooperation in fields such as protection of the marine environment, safety of navigation, prevention of piracy, marine scientific research, disaster mitigation and control, search and rescue operations, meteorology, and maritime pollution control. They also agree that on some of the above-mentioned issues, multilateral cooperation could eventually be conducted.

The dispute erupted anew in late October 1998 (see Winks_Blinks blog, Mischief on Mischief Reef) when the Philippines discovered that China was expanding the structures on Mischief Reef, using armed military supply ships.

The two sides did meet in March 1999 in Manila to discuss the issue. China rejected the Philippine demand that it dismantle the Structures. China also denied that it had ever offered joint use of the structures to the Philippines. And it demanded that Manila cease all reconnaissance flights over the disputed feature. The talks nearly collapsed when China refused to put in writing a verbal commitment not to build any new structures on any Philippine-claimed features and only reluctantly agreed to state that the Mischief Reef structures would be used only by civilians. On 30 March, Manila suggested that the two sides use the machinery established by the U.N. Convention on the Law of the Sea -- the International Tribunal on the Law of the Sea -- to determine the rightful owner of Mischief Reef. Although China has ratified the Convention and stated several times that it would use the Convention to resolve the South China Sea disputes, it rejected the Philippine suggestion.

The Philippines publicly urged ASEAN to issue a statement at its Hanoi summit (December 1998) to call on China to respect international laws and co-operate to foster regional peace and stability.(31) ASEAN avoided dealing with the China-Philippine dispute in public, but an internal ASEAN report criticized China for actions not compatible with the UNCLOS and the China-Philippines code of conduct. This criticism was validated by China's rejection of the Philippine suggestion that the Mischief Reef dispute be resolved by the Law of the Sea Tribunal established under the auspices of the UNCLOS.

The most significant gain the Philippines seems to have made in attempting to internationalize the issue is a seeming change of position in the Mischief/South China Sea dispute on the part of the United States. The Philippines began by inviting a senior member of the United States House Committee on International Relations, Dana Rohrbacher, on a flight over Mischief Reef organized by the Philippines Air Force in early December 1998. Rohrbacher said he saw three Chinese warships near the Reef and he accused China of "aggression" and the Clinton Administration of downplaying the incident. He went on to pledge that the U.S. government would help the Philippines in its dispute with China. Of course China said that Rohrbacher was "meddling" in a bilateral dispute and pointed out that the China-Philippines code of conduct called for settling disputes bilaterally.

In the year 2000, Scarborough Shoal became another point of tension in the territorial disputes between the Philippines and China. In January, a Philippine navy patrol vessel fired three warning shots near two Chinese fishing boats off Scarborough Shoal. China then accused the Philippine navy of firing at, harassing, and forcibly boarding its fishing boats, and even robbing its fishers in the waters near the feature. The Philippines denied these accusations and in turn accused the Chinese fishers of harvesting endangered coral and illegal dynamite fishing. When China warned the Philippines against further provocative acts, the Philippines Senator Blas Ople alluded to the US/Philippines 1951 Mutual Defense Treaty and declared that the United States would back it in the event of war with China. Then in May, one Chinese fisherman was shot dead by the Philippine marine patrol forces in the disputed Scarborough area.

Scarborough Shoal or what China calls Huangyan Island consists of a barely submerged reef enclosing a lagoon. The feature is located about 600 nm east of China's Hainan Island, and about 1,000 nm from China's mainland. It is about 128 nm west of Luzon. The Shoal is surmounted by scattered rocks and the ruins of an iron tower. The Philippines claims the feature because it lies within its 200 nm Exclusive Economic Zone. But China claims that it has had sovereignty over the feature since "time immemorial."

The Geopolitical Context of the Mischief Reef and Scarborough Shoal Disputes

In order to understand the apparent lack of regional and international support for the Philippine position in its dispute with China, it is instructive to put the dispute in the geopolitical context of the disputes.
China/United States: At the strategic level, post-Cold War U.S. policy toward Asia in general and China in particular has been in disarray, choices ranging from "engagement" to "containment," but the United States had difficulty choosing and maintaining a particular policy, in terms of both its bilateral relations with China and the role it wants China to have in the East and Southeast Asian regions. China, on the other hand, tends to fear the worst -- that U.S. political and military policy towards Asia is designed to contain China -- in intent if not in practice.
Putting pressure on the US to intervene, is its defense guarantees and treaties with a number of the claimants, but reluctant to do so. In 1995 the US naval war college ran a series of computer war games simulating a conflict with China over the South China Sea. In every case Chinese forces won the day.

The Chinese vision of a post-Cold War order for Asia translates into nationalist behaviors. It has hardened its position over the political future of Taiwan and not relented in its pursuit of maritime territorial claims, to the dismay of Southeast Asian nations. In this context, China's 1995 move on to Mischief Reef was not a surprise but a rationally calculated move by Beijing, indeed a manifestation of China's growing nationalism, economic power, and confidence.

China/Philippines/United States: After China and the Philippines established diplomatic relations in 1975, the major problem was the uneven implementation of Manila's "one China" policy. Beijing was strongly opposed to diplomatic contacts between Manila and Taipei. But the territorial dispute between China and the Philippines is clearly separate from the Taiwan issue. Indeed, given the fact that both China and Taiwan hold identical claims to the Spratly islands and are not challenging each other's claims, the Philippines also has a territorial dispute with Taiwan, although Taiwan in recent years has not taken military action to solidify its claims.

Both the Philippines and China have tried to treat the issue as separate from their bilateral relations. But the dispute had some impact on Philippine politics and its relations with China. Although few believe that China intends to invade the Philippines, the Mischief Reef dispute has been identified by the Philippines National Security Council as one of the two "most urgent" security problems facing the Philippines agreed the battle with China should continue to be fought on two diplomatic fronts - through dialogue with China and with international help. Modernization of the Philippines Armed Forces is again on the agenda. To demonstrate its displeasure with China, the Philippines postponed a planned visit by President Estrada to Beijing in April 1999 while keeping in place his visits to Hong Kong, South Korea, and Japan. President Estrada did make the trip to Beijing, in May 2000, but the two governments were able to agree on little more than a pledge to resolve the Mischief and Scarborough disputes peacefully.

Because the Philippines does not have the resources to modernize its air and naval forces to a level that they can credibly match a future Chinese show of force, it has pressed for third party arbitration, including mediation by the United States. Indeed, much to China's dismay, the Philippines argues that a U.S. presence in the region would serve as a deterrent to China. The Visiting Forces Agreement (VFA) signed between the Philippines and the United States could serve that purpose. Among other things, the VFA allows the militaries of the two countries to resume major military exercises, combined training, and ship visits. The impasse Manila ran into with Beijing in resolving the territorial dispute, including clashes between Philippine maritime patrol forces and Chinese fishermen operating in the disputed waters, contributed to the passage of the VFA in the Philippine Senate in May 1999. In January 2000, the United States and the Philippines did launch a joint military exercise in waters close to the disputed Spratly islands. Some in the Philippine media interpreted the exercise as a revelation of U.S. commitment to Philippine security. But the weakness of the Philippine armed forces is only part of the explanation for the lack of a more forceful response from the Philippines vis-a-vis China. The Philippines also suffers from a lack of coherent leadership in its China policymaking.

Sellout
The Manila headlines about yet unverified reports of alleged “sellout” by the Philippines to China of our country’s territorial claim over the disputed Spratlys islands unsettled some think-tank groups in the United States. The influential US-ASEAN Business Council raised this issue with Agriculture Secretary Arthur C. Yap while he was in Washington DC along with Energy Secretary Angelo Reyes as official representatives of the Philippines to the 3rd Washington International Renewable Energy Conference (WIREC). Such concern was expressed in very clear terms by US-ASEAN Business Council president Matthew Daley who was formerly the deputy assistant secretary for East-Asia Affairs of the US State Department.

“There’s concern on external issue about Philippines and China’s attitude regarding maritime boundary as it impacts on oil exploration. It affects Vietnam more directly but also affects the rest of the countries in this region,” Daley pointed out. The US-ASEAN Business Council president noted that “Chinese talks with major oil companies discourage them from exploring natural resources in the area because other governments feel that exploiting resources should also include them.” Aside from Vietnam, Daley added, this issue is also “to affect Indonesia beyond Spratlys.”  

Daley informed Yap that the reported joint exploration and development of resources in South China Sea between the Philippines and China raised concerns from other claimants like Vietnam which were not made part of this undertaking, to look at it with suspicions. Obviously trying to couch his words with diplomatese, Daley echoed this concern as “directly affecting Vietnam” where most US-ASEAN Business Council members, composed of the biggest and largest American multinational companies operating in the region, are shifting or have already shifted to this country several decades after the US-Vietnam war in the 1960s.

Detained military rebel leader-turned opposition Senator Antonio Trillanes IV succeeded to a certain degree to draw the US into the NBN-ZTE brouhaha by bringing out the bogey of Spratlys, playing the China card to the Americans. The neophyte opposition Senator filed a resolution based on unnamed sources that raised allegations in media about the Spratlys “sellout” by President Arroyo in her approval of bilateral agreement with China involving as much as $1.3 billion worth of official development assistance (ODA) package that included the NBN-ZTE contract.

Based on media reports, Trillanes asked his colleagues in the Senate to look into the allegations where the Philippine government supposedly agreed to this loan package offered by China in exchange for our country’s giving up territorial claims over the Spratlys. This agreement, the anti-Arroyo Senator charged, is already being implemented in the guise of a joint seismic development agreement between the Philippines and China in the exploration for oil and natural gas deposits around the Spratlys.

Opposition Rep. Roilo Golez earlier called attention to an article in the Hong Kong-based Far Eastern Economic Review criticizing the agreement as a “sell-out” on the part of the Philippines. The article was written by Barry Wain, a researcher in the Institute for Southeast Asian Studies in Singapore.

Wain claimed that the agreement gave legitimacy to China’s claim to most of the South China Sea. He said the Philippines, being “militarily weak and lagging economically, has opted for Chinese favors at the expense of ASEAN political solidarity.”

He said the agreement violated the spirit of the 2002 ASEAN-China Declaration of the Conduct of Parties as it was concluded without consultation with other countries claiming the Spratlys. He noted that Vietnam initially objected to the agreement, forcing the Philippines and China to include it in the joint exploration project in 2005.

According to Golez, oil exploration companies have estimated that the Spratlys hold about 200 billion barrels of oil worth $20 trillion at present prices.

Meanwhile, the bill defining our territory to comply with UNCLOS deadline in May 2009 is hanging in limbo, paralyzed by an unsigned Chinese note received by the Philippine Embassy in Beijing.

UNCLOS contains mechanisms to aid in the settlement of the Spratlys conflicting claims.

Articles74 and 83 says that when there is disagreement concerning the delimitation of the exclusive economic zone (art74) or continental shelf (art83) the states must try to reach an agreement under art 38 of the Statute of the International Court of Justice (ICJ)

Parties to the Law of the Sea are obligated to accept arbitration of their maritime disputes under Part XV of the Convention.

Another non-violent method recently tried successfully is joint development, as the precedent set by Thailand and Malaysia for the joint development of natural resources in areas where their territorial waters overlap. Other approaches are the agreement between Germany and the Netherlands in the Ems-Dollart Treaty of 1960 for joint development of gas and oil reserves in the estuary of the Ems River, and the agreement between Japan and South Korea to jointly develop the continental shelf between the two countries.

If an amicable solution to the conflicting Spratlys and Paracels claims are not done, the Thucidides solution will result – the strong do what they have the power to do and the weak accept what they have to accept.