How to stake claim over territory

By William M. Esposo

MANILA : Many of the charlatans and overnight Sabah claim experts thought they were patriots fighting for Philippine national interest. They didn’t even realize that the arguments they were mouthing were supporting China’s very claims to our territory in the South China Sea.

Dr. Renato de Castro heads the De La Salle University International Studies Department. Rene was kind enough to share with me an article written by him in 2000 where he probed weaknesses of China’s claims to our Spratly islands.

Rene wrote: “International Law and the status of historic claim

China’s historic claim to the Spratlys is based on the principle of first discovery. However, international law does not recognize discovery as a sufficient mode of territorial acquisition. Rather, international law recognizes effective control of the territory as the important element in the acquisition of territories, irrespective of modalities. Claims based on discovery, in the sense of first sighting, are generally considered insufficient to acquire a territorial title. Effective control requires not only a single act of assertion of naked control but by a continuous and comprehensive acquisition of a title to a landmass or a maritime area of the earth and its use and exploitation. Noted international law scholar L. Oppenheim emphasizes the importance of effective control or possession of a territory when he noted:

The territory must really be taken into possession by the occupying state. For this purpose it is necessary that it should take the territory under its sway (corpus) with the intention of acquiring sovereignty over it (animus). This can be done by acquiring sovereignty over its animus. This can be done by a settlement on the territory accompanied by some formal act, which announces both that the territory has been taken possession of and that the possessor intends to keep it under his sovereignty. Opinion ( Article MRec ), pagematch: 1, sectionmatch: 1

A more contemporary scholar on territorial acquisition, Surya Sharma, supported this opinion when he wrote:

“Discovery and symbolic annexation, taken separately or together, were not regarded by states as sufficient to constitute an independent mode of exclusive territorial acquisition. These modalities were frequently equated with the intent to occupy. The most extreme legal title which the general community concedes in favor of these modes [of territorial acquisition] was the creation of an “inchoate title,” which had to be perfected within a reasonable time by effective occupation, or else the inchoate title would lapse. In short, nothing less than effective occupation was regarded as sufficient to establish title to territory and temporary titles created by discovery and symbolic annexation have to be perfected within a reasonable time by effective control. This view, has the support of the majority of influential writers and a vast body of state practice, in addition to judicial backing.” The importance of effective control over discovery has been clearly imputed by famous legal cases such as the Island of Palmas Case (1928), the Clipperton Arbitration Case (1931) and the Minquiers and Ecrehos Case (1953).

The island of Palmas Case involved a dispute between the United States and the Netherlands over the island of Palmas, which is located between the Celebes Island and the Philippines. The United States, as a successor to the rights of Spain over the Philippines, based its claim on discovery, based on the Spanish sighting of the island in the 16th century. On the other hand, the Netherlands founded its claim on a continuous and peaceful display of authority over the disputed island. The arbitrator, Judge Max Huber, decided in favor of the Netherlands by ruling that even admitting that Spain had discovered the island and had a inchoate title over it, an inchoate title could not prevail against continuous and peaceful authority by another state. The ruling further added that such display might prevail over a prior, definitive title put forward by another case. The Island of Palmas case showed that holding a title based on effective exercise of sovereignty is superior to a claim founded on discovery. The Palmas case maintains that even if discovery was recognized by international law as a mode of acquiring a title to a territory, the present title has to be complemented by an effective display of authority. In other words, a title established by discovery, if valid, could be lost by “failure to display continuous state activity.” Based on the Las Palmas Case, it has been maintained that there is greater weight in the opinion [of the international legal community] that discovery alone does not constitute an independent mode for territorial acquisition: at beast it creates an inchoate title which must be perfected within a reasonable time by effective occupation or it will lapse.” “Another case that provides an important precedent on the importance of effective occupation over discovery is the Clipperton Case Island Arbitration Award.” Rene mentioned a third case to demonstrate his point — the Minguiers and Ecrehos Case. He wrote: “The three cases raise valid questions on the legal validity of China’s claim of sovereignty to the Spratlys in three ways. First, they weakened China’s claim over those islands on the basis of discovery. The three cases uphold an argument that discovery, in itself, is an insufficient basis for the acquisition of a territory.” Rene’s article provided more insights but we opted to use only this portion that drives home the point — historic claims, such as the one we have with Sabah, are the weakest cases when international courts decide territorial dispute. Favoring the historical claims would have opened a Pandora’s box worldwide.

The problem with our charlatans and self-appointed Sabah experts is that they choked on reference materials and failed to see the big picture. They should first make sure that their brains were engaged before putting their mouths into gear. They didn’t bother to check if we have a say in something that’s strictly a row between the Kiram family and Malaysia.

Never mind the President Benigno S. Aquino III (P-Noy) haters who rode on this Sabah issue to try to bring down the president’s political stock. They’re best left to wallowing in their venom. What’s deplorable is how otherwise right thinking Filipinos had been taken for an emotional ride. Many bit into the Sultanate of Sulu’s deception and were ready to castigate one of the best presidents that we ever had.

Alas, we’re indeed our biggest enemies.