Spratlys Idiosyncrasies : Does the Philippines Have What It Takes to Prevail Over China?

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This write-up will not dwell on the political and military capability of the Philippines over a rising power such as China, but will provide a sketch of the relative legal merits of the Philippine claims over the Spratlys Island or Kalayaan Island Group, in the recently-named West Philippine Sea.

The late Prof. Haydee Yorac of the University of the Philippines College of Law, wrote as early as 1983 in a Philippine Law Journal article that

Persuasive arguments in favor of the Philippine claim are the related notions of abandonment, territorium nullius and effective occupation.

Prof. Yorac explained that the case for abandonment is anchored on the premise that it is Japan, not China, that can be considered to trace their legal title to the islands before World War II, making the earliest categorical claim of sovereign occupation over the islands and actually occupying the islands for a long period of time. The existence of a legal title can also be inferred from the way Japan was made to renounce title to the islands in both the Treaty of Peace with the Allies in 1951 and the Bilateral Treaty of Peace with the Republic of China. Since it was not clear to which country the renunciation was made in favor of, then the islands became what in international law is called as territorium nullius.

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