While the Philippines has a superior legal
claim to the China-controlled Panatag (Scarborough) Shoal, it is
"illegally occupying" two other small islands in the Kalayaan
(Spratly) island group claimed by Vietnam, a research firm said.
Researchers from Virginia-based
think tank CNA argued that the Philippines cannot lawfully classify the whole
Kalayaan group under its sovereignty.
At least two of the maritime
features under Kalayaan — Thitu (Pagasa) Island and Loaita (Kota) Island — also
claimed by Vietnam devolve from a legal annexation document issued by the
French colony in 1933.
"The legal annexation by
France was, at the time, a lawful method of territorial acquisition and its
rights devolved to Vietnam," the research stated.
The annexation was backed by
France's maritime activities prior to World War II as well as evidence that the
claims were not abandoned after the war, the paper noted.
"The Philippines is
illegally occupying two small islands in the KIG that are the rightful property
of Vietnam," the paper's legal conclusions noted.
It is also possible that Northeast Cay
(Panata Island) should be included the list of unlawful Philippine occupations,
"but more evidence is needed," it said.
The research firm, funded in part
by Washington, released the study this month to aid the United States policy in
the disputed South China Sea. It also assesses legal merits of overlapping
claims of Vietnam, China, the Philippines, Malaysia and Brunei.
"The ubiquitous KIG [Kalayaan
Island Group] claim by the Philippines carries little legal weight. It stands
on the same footing as the nine-dashed-line claim [of China]. Also, it was made
later than the claims of China, [Taiwan] and Vietnam," the paper noted.
The Philippines, however, has
maintained that Pagasa and Kota islands were terra nullius or "land
belonging to no one" when it stationed soldiers there as well as six other
features from 1968 to 1971.
The Kalayaan claim was formally
asserted by President Ferdinand Marcos in 1978 through Presidential Decree
1596, naming the Kalayaan islands as part of the province of Palawan.
Pagasa, the second largest in the
group after Taiwan-occupied Itu Aba, has a Filipino population of about 200 and
has several structures including a municipal hall, health center and an air
strip.
Kota, meanwhile, has some
shelters serving token presence of soldiers.
The paper admits that while the
Philippines' administration of the islands can be legally contested, the
application of Vietnam's territorial claims will face practical challenges.
"The political realities of
uprooting Philippine citizens from these areas, especially [Pagasa], may be
something different entirely," the study said.
The study, meanwhile, credits the Philippines
for having superior claims based on "effective occupations" and
"first discovery" of four high-tide features in Kalayaan, namely,
West York (Likas) Island, Nanshan (Lawak) Island, Flat (Patag) Island and
Lankiam (Parola) Cay.
"Title in these four islands
should vest to the Philippines," it said.
The country's arbitration case
sought against China asserts only maritime jurisdiction in the West Philippine
Sea based on the 200-nautical mile exclusive economic zone and continental
shelf, and not sovereignty claims over occupied territories.
The authors noted that if
opposing territorial claims over the South China Sea will be ruled by a court,
it is "unlikely" that it would award a single country title to all of
the disputed features in the Spratlys.
"Determining whose claim is
superior is not a cut-and-dried process," the study said, quoting national
security lawyer and retired Navy Capt. Mark Rosen.
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