The forgotten Treaty of Paris

FROM A DISTANCE By Carmen N. Pedrosa (The Philippine Star) | Updated August 1,

2015 - 12:00am

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Both China and the Philippines attempt to justify reasons for making their claims to
the various islands in the South China Sea. China gives historical reasons while the
Philippines cites the rule of law. But both parties seem to have forgotten the Treaty
of Paris that had set the demarcation lines of the Philippines when Spain ceded the
islands to the US. The treaty was signed and recognized by countries around the
world and became it the last word in deciding the Philippine territory.

BayanKo adviser Jose Alejandrino refers to this treaty in a draft constitution for
consideration by the constitutional panel headed by former Chief Justice Reynato
Puno:

Article 7 - The Philippines comprises all the territory ceded to the United States by
Spain at the Treaty of Paris on December 10, 1898, the limits of which are set forth
in Article III of said treaty, together with all the islands embraced in the treaty
concluded between the United States and Spain on November 7, 1900 and the
treaty concluded between the United States and Great Britain on January 2, 1930
and all territory over which the present government of the Philippines exercises
jurisdiction.

This article is based on Article III of the 1898 Treaty of Paris. It set the boundaries of
Philippine territory as follows:

Spain cedes to the United States the archipelago known as the Philippine Islands,
which comprise the islands situated between the following lines: A line which runs
west to east near the 20th parallel of north latitude across the centre of the
navigable channel of Bachi, from the 118th to the 127th degrees of longitude east
of Greenwich, from here to the width of the 127th degree of longitude east to
parallel 4 degrees 45 minutes of north latitude. From here following the parallel of
north latitude 4 degrees 45 minutes to its intersection with the meridian of
longitude 119 degrees 35 minutes east from Greenwich. From here following the
meridian of 119 degrees 35 minutes east to the parallel of latitude 7 degrees 40
minutes north. From here following the parallel of 7 degrees 40 minutes north to its
intersection with 116 degrees longitude east. From here along a straight line to the
intersection of the tenth parallel of latitude north with the 118th meridian east, and
from here following the 118th meridian to the point whence began this
demarcation.

This was the extent of the Philippine national territory recognized by the US and
Spain. The US Congress ratified the Treaty of Paris.

Opinion ( Article MRec ), pagematch: 1, sectionmatch: 1

The definition was contained in the 1935 Constitution. The 1973 Constitution
modified it in more general terms without establishing boundaries. The 1987
Constitution merely copied the provision of the 1973 Constitution.

Are the shoals and reefs claimed by the Philippines that are also being claimed by
China included in the Treaty of Paris? If they are, then they form part of Philippine
national territory. If they are not, they are just claims based on historical and other
considerations. For example, Scarborough Shoal is outside the boundaries of Article
III of the Treaty of Paris.

Will the US to come to the aid of the Philippines under the mutual defense treaty if
Scarborough Shoal is occupied by a foreign power? The US said it does not apply in
a South China Sea conflict as the Spratlys are not part of the metropolitan
territory of the Philippines.

The problem began when the 1973 Constitution during Marcos time deleted the
boundaries of Philippine national territory defined in the 1935 Constitution to
comply with the Treaty of Paris.

Ambassador Alberto Encomienda who has followed the history of the dispute said
Marcos issued PD1596 in 1978 proclaiming ownership and sovereignty over a group
of islands and shoals in the South China Sea. Was this to pave the way for the
issuance of his PD?
Alejandrino noted, Any country can define its national territory in its Constitution
any way it wants. The question is will it be recognized by the international
community?

There may be other reasons. The question on what constitutes territorial limits of
the sea is not as straightforward as it seems. By 1967 only 25 countries still
adhered to the 3-mile limit of water extending from a nations coastline, 66 nations
extended it to 12 nautical miles and 8 nations to 200 nautical miles. The UN decided
to put some order in the system by drawing up a Law of the Sea that was UNCLOS.

UNCLOS came up with five definitions: what constituted internal waters, territorial
waters, archipelagic waters, exclusive economic zones, and the continental shelf.
The two that most concern the Philippines in my view are archipelagic waters and
exclusive economic zones.

Archipelagic waters are waters inside a baseline drawn between the outermost
points of the outermost islands, subject to these points being sufficiently close to
each other. A state has full sovereignty over these waters but foreign vessels enjoy
right of innocent passage.

Exclusive economic zones extend out to 200 nautical miles from a coastal states
baseline. The state has sole exploitation rights over all natural resources.

The Law of the Sea Convention defined the rights and responsibilities of nations
with respect to the use of the worlds oceans. It also established guidelines for
businesses, the environment, and the management of marine natural resources. But
it did not define the territorial boundaries of nations.

While the US Congress ratified the Treaty of Paris defining the national territory of
the Philippines, it has not ratified UNCLOS.
The UNCLOS has gaps, particularly in defining and balancing rights and duties in the
exercise of transit rights through archipelagic waters that will require the
cooperation of major maritime powers like China.

The Aquino government has opted for compulsory arbitration by the UN in its
conflict with China because it believes a rules-based approach is the only way to
settle maritime entitlements of claimant countries than bilateral talks. Assuming it
is successful and the UN tribunal accepts jurisdiction, it could backfire one day on
the Philippines.

As Ambassador Encomienda pointed out, The ultimate end of establishing regional

ocean governance cannot be achieved by starting on the wrong foot through
compulsory arbitration to address maritime issues because the Philippines as an
archipelagic state has similar concerns on the nine-dash line.

The nine-dash line was originally an eleven-dotted line used by Taiwan in 1947 to
justify its claims in the South China Sea. In 1949 Chinas Chou Enlai endorsed the
line and revised it to nine.

Encomienda suggested the better approach is bilateral talks to resolve differences. I

agree. It makes no sense to shut the door to a major maritime power like China that
remains an important player on the Asian scene. This is like cutting our nose to
spite our face.