Spratlys war of words must stop

Overlapping territorial claims to the Spratly Islands by China, the Philippines, Vietnam, Taiwan, Malaysia and Brunei have escalated the conflict in this region to a new high. China, Vietnam, and the Philippines, the three most assertive in their claims, have engaged in naval clashes before and there is prospect of more in the future.

United States cruisers operate in the South China Sea. Photo by Former Navy Gallery.

While China and Vietnam continue to flex their muscle by staging military exercises in the South China Sea, the Philippines, the weakest military-wise, is not to be outdone. With U.S. troops and naval ships under the Visiting Forces Agreement between the Philippines and the United States, both countries have been conducting their military games a few kilometres away from the disputed islands, prompting Beijing to complain that the exercises were an indirect offence to China’s sovereignty.

More than a territorial dispute

Clearly, this is more than a mere squabble over territory.

Ever since reports were published that the Spratlys may be sitting on enormous reserves of oil and natural gas, the jockeying between these three countries has never been more intense. China appears to be the most eager to lay its hands on Spratlys oil. Its booming economy needs the vast energy resources that Spratlys can provide. Vietnam and the Philippines can surely make use of Spratlys wealth to provide for their country’s needs.

The disputed Spratly Islands in the South China Sea. Photo by Google earth. Please click
the following  link to view http://www.youtube.com/watch?v=W-CDMSOGaRY,
"The South Cina Sea: Troubled Waters."

A 1969 United Nations report indicated probable rich hydrocarbon deposits in the Spratly Islands. The international oil industry has compared the Spratly petroleum deposit to an elephant with the potential to produce over a billion barrels of oil.

Each of the claimant countries shapes their claim on a variety of arguments, ranging from historical evidence of discovery and occupation to arguments based on international law principles and the UNCLOS provisions. Every state is sticking to their territorial claim of sovereignty, which for the most part is weak but no one is willing to budge.

The evidence presented by China, Taiwan and Vietnam to support their historical claims is unconvincing, if not dubious at most. Their evidence merely illustrates their countries’ intermittent contact and brief occupation of the islands. The same is true with the claims of the Philippines, Malaysia and Brunei which all suffer from factual weaknesses and legal misinterpretations.

Sovereignty claims are driving the Spratly Islands conflict to the edge of brinkmanship. It is now a war of words between China, the Philippines and Vietnam. This sabre-rattling must stop if they want a reasonable and equitable settlement of their dispute. Otherwise, they face the possibility of a military confrontation. In the end, whoever has control of the Spratly Islands will have hegemony in the entire region.

International case law

Two cases in international law are worth reviewing in regard to the conflicting territorial sovereignty claims over Spratly Islands.

The Island of Palmas case, decided by the Permanent Court of Arbitration in 1928, set forth the factors necessary in establishing territorial sovereignty over an island. In Palmas, the case is about the conflicting sovereignty claims of the United States and the Netherlands over an isolated, but inhabited island located between the Philippines and the former Dutch East Indies. The U.S. claimed that Spain originally discovered Palmas Island and subsequently ceded title to the United States under the Treaty of Paris.

The United States also based its claim on the island's contiguity to the Philippines. The Netherlands, on the other hand, claimed sovereignty based on their peaceful and continuous display of state authority over the island.

The court awarded Palmas Island to the Netherlands and held that the mere act of discovering an island results only in inchoate title and does not suffice to establish sovereignty unless the discovery is followed by a continuous and peaceful display of authority or some degree of effective occupation.

In contrast, the Permanent Court of Arbitration held in the Clipperton Island case that France's discovery and declaration of sovereignty in a Honolulu journal were sufficient to establish sovereignty over an uninhabited atoll. The court concluded that in some instances, where the territory claimed is completely uninhabited, the requirement of effective occupation may be unnecessary.

The Clipperton case involved the sovereignty claims of France and Mexico over an uninhabited atoll located off the coast of Mexico. France argued that a French Lieutenant claimed the island on behalf of the French government in 1858, while Mexico claimed ownership by way of cession from Spain.

The Clipperton Island case is relevant to the Spratly Islands dispute because the islands are similarly isolated and uninhabited. However, higher standards for effective control may be applied in the Spratly Islands dispute because of the number of claimant countries involved and the complexity of their claims. The International Court of Justice also held that when an ambiguity exists, actual displays of authority, evidence of possession, and acquiescence by other states to the exercise of sovereignty are of decisive importance in determining sovereignty issues.

Each of the countries in the Spratlys dispute has made attempts to occupy the islands. Taiwan, for example, has continuously occupied Itu Aba since 1956, and Vietnam, the Philippines, Malaysia, China and Brunei have each controlled several features of the archipelago. These occupations most likely satisfy the Palmas standard of a continuous display of authority. Other claimant countries, however, have protested and not acquiesced to these sovereign displays.

UNCLOS has little impact

In 1982, the United Nations United Nations Convention on the Law of the Sea (UNCLOS) was adopted. While UNCLOS embodies customary international law and governs practically every aspect of ocean management, it is of little impact in the Spratly Islands dispute since it fails to provide specific guidelines for delimiting maritime boundaries, especially where there are overlapping claims. The only guidance UNCLOS provides is that boundary disputes involving the continental shelf or exclusive economic zone (EEZ) shall be resolved by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, to achieve an equitable solution.

Both China and Vietnam have rejected Philippine challenges to elevate the Spratly Island dispute to a special tribunal created under UNCLOS for maritime disputes or to the International Court of Justice. It is rather obvious that China and Vietnam would have difficulty substantiating the legal basis for their claims. However, China is agreeable to a joint undertaking to explore Spratlys’ natural wealth but only on a bilateral basis.

Possible joint development zone

Settlement of the Spratlys dispute by an international court or tribunal appears to be beyond the immediate horizon. The only alternative, which may work in the best interests of all the countries, would be to establish a joint development zone. Previous studies in the past have stressed the need to implement more confidence building measures among the claimant states. There was also a proposal made to establish a three-tiered joint development agreement, consisting of twelve separate joint development zones.

More than fifty years have passed, yet the settlement of Spratlys dispute appears headed nowhere. The Spratly claimants, perhaps, can learn some lessons from the negotiations over the Timor Gap, originally between Australia and Indonesia, and later between Australia and East Timor, when the latter seceded from Indonesia to become an independent state.

Originally known as the Treaty between Australia and the Republic of Indonesia on the zone of cooperation in an area between the Indonesian province of East Timor and Northern Australia, the treaty provided for the joint exploration of petroleum resources in a part of the Timor Sea seabed which was claimed by both countries. East Timor at the time was invaded by Indonesia and was annexed as its province. The negotiations between Australia and Indonesia and the ultimate signing of the treaty were criticized as Australia’s de jure recognition of the Indonesian invasion and annexation of East Timor.

Lessons from Timor

When East Timor seceded from Indonesia in 1998, a new treaty was negotiated resulting in the Timor Sea Treaty. Although the negotiations over Timor Gap had a long and complex history, Australia and independent East Timor have generally accepted that the issue of East Timor’s maritime boundary is much less important than the wealth that could be generated for the new country by the exploitation of the Timor Sea resources.

Cumulative oil slick footprint in the Timor Sea, August 30, 2009. Photo by Sky Truth.
Please click the following link http://www.youtube.com/watch?v=-XyatkST4m8 to
view "The Timor Gap - East Timor."

The new Timor Gap Treaty which was signed on July 5, 2001, guaranteed that the East Timorese and Australian economies would both benefit from the sea’s oil resources, instead of keeping a protracted conflict over which country owns the seabed and has jurisdiction to its resources. Time will tell when the issue of sovereignty shall again arise between the two countries since no one is willing to give ground on its respective position, although anything is possible once the oil is gone.

Spratlys’ competing states could similarly opt to follow the Timor Sea Treaty framework. Exploit the archipelago’s vast reserves of oil and natural gas, share the fruits among them based on their permanent economic interests to their territorial claims, and decide on the sovereignty conflict later, perhaps after all the oil is gone.

Both international law and the UNCLOS fail to provide a definitive answer to the Spratly Islands dispute. Any solution, however, will take time. By agreeing to a provisional joint development plan that will benefit every claimant state, the countries will at least be able to jointly and equitably exploit the natural resources of Spratlys, or until they can agree on a more permanent solution.

U.S. proxy war with China imminent in the Spratlys

 

Of all the competing claims for territorial sovereignty to the Spratlys, the Philippine claim is the strongest and most compelling.

Based on the criteria of discovery, occupation and settlement, and jurisdictional rights outlined under the U.N. Convention on the Law of the Seas (UNCLOS), the Philippines can make a more solid case than either China or Vietnam, the two other countries that are also asserting their claims over a potentially oil-and-other-minerals-rich Spratlys.

Filipinos in Toronto rally before the Chinese Consulate, July 8, 2011, to protest
China's encroachment in Philippine territory in the Spratly Islands. Click link to
view :http://www.youtube.com/watch?v=6qTkQSbYmJU (Spratly Islands).

Recent reports that China is shipping a giant oil rig to start drilling in the hotly-contested Spratly Islands have enraged concerned Filipinos, particularly those living in the United States and Canada, to protest on the streets in several cities which observers believe could draw U.S. involvement in the escalating South Sea China conflict.

With China’s recent aggressiveness near the Spratly Islands, the Philippines ran to the United States to invoke the moribund 1951 Mutual Defence Treaty which made it obligatory for one to defend the other, when the latter is being attacked.

The United States government, with its usual diplomatic double-talk, made reassurances that it will not abandon the Philippines should the Spratly conflict further intensify. Senator John McCain publicly exhorted his government to extend stronger diplomatic support to an ally in the face of China’s bullying tactics.

During a meeting between U.S. Secretary of State Hillary Clinton and Philippine Foreign Affairs Secretary Albert del Rosario, Secretary Clinton committed to defend the Philippines and emphasized that the U.S. would provide the Philippines with reliable military hardware so it can upgrade its capability to defend its territories in the South China Sea.

U.S. to beef up military response

It must be recalled that when the United States closed its military bases in the Philippines, China declared the whole of the South China Sea in 1992 as a part of its internal waters. The U.S. reaction was ambiguous as it stressed its neutrality on the Spratlys issue. It only changed its posture when the Chinese occupied the Panganiban (Mischief) Reef in 1995, prompting the U.S. to fashion a new type of military response through the Philippine-American Visiting Forces Agreement (VFA) to justify the presence of American troops conducting joint and combined military exercises with the Armed Forces of the Philippines in its territories.

The global war on terrorism in 2001 further gave impetus to American military presence on Philippine soil. China’s assertiveness in the South China Sea is now viewed not only as a security challenge but more of a military threat.

Map of Spratly Islands, Encyclopedia Britannica, 1996. Click link
 http://www.youtube.com/watch?v=vKgh-ydvXqo&feature=relmfu,
to view "The Meaning of Military Exercises in South China Sea."

It was in this context that many observers interpreted Secretary Clinton’s robust commitment to defend the Philippines in the South China Sea as a clear indication of the U.S. intent to remain and exert a strong military presence in the region.

China, on its part, has asked the United States to stay away from the regional conflict, thus signalling what many have observed as the beginning of a US proxy war with China in the South China Sea, particularly on Philippine battleground.

What is a proxy war?

A proxy war is not really a full-scale war and it works best during a Cold War, when there are no real armed hostilities. It results when opposing powers, such as the United States and China, use a third party like the Philippines as a substitute for fighting each other directly. A proxy war does not necessarily lead to full-scale armed hostilities, especially when two superpowers do not wish to fight each other directly and would not risk an escalation to a bigger and more destructive conflict.

From a strategic perspective, some political observers in the region are viewing the ongoing territorial disputes in the South China Sea as not just a battle for maritime rights over oil and other mineral resources.

Many affirm that these disputes pose a real test to the emerging regional structure dominated by an ever-growing Chinese influence due to its robust economy, on one hand, and the shrinking U.S. clout in the region, on the other.

Security, in addition to oil, is another incentive in the Spratlys dispute. The Spratlys have long been considered as strategic bases for sea-lane defence, interdiction, surveillance and potential launching sites for land attacks.

The United States has very significant national security interests in maintaining unimpeded transit rights—on the surface, in the air and under the sea—throughout the South China Sea, especially to protect Japan in the event of hostilities. It seems unlikely for the U.S. to voluntarily accede to China’s supremacy over this part of the world without getting major concessions that will enhance its security interests. U.S. involvement becomes even more imminent due to pressures from its allies like Australia, Japan, and South Korea to counter the growing threat of a Chinese hegemony in the Asia-Pacific.

Daixu, a strategic analyst at the Chinese Energy Fund Board, has written that a Sino-U.S. proxy war is absolutely not alarmist. Quoting from the work of the American scholar Wei Lianen, he wrote that “expansion through war is in the nature of the United States….it has been transformed into a belligerent Sparta state.”

Popular opposition to China’s intimidating behaviour toward the other claimant countries in the South China Sea augurs well for American involvement in the regional conflict. It provides the United States with the opportunity and justification to enter into the fray, thus ensuring its strategic economic and military presence in the region.

A study conducted by Rand Corporation has recommended that the U.S. government beef up its military forces in the region and shift its security strategy from north to south. The Rand proposal envisions the integration of the Philippines into a new comprehensive security partnership along with Japan, South Korea, Australia, Singapore and Thailand to prevent the rise of a dominant regional power (like China) that could undermine America’s role in the region.

Philippines caught in tug-of-war

U.S. involvement in the Spratlys dispute will further entrench the PHL-U.S. Visiting Forces Agreement (VFA) and deepen the participation of the Philippines in American military operations in the region. Since the VFA was signed in 1999, several war exercises between the two countries have been conducted in Palawan or just a few kilometres away from the disputed Spratly islands, which Beijing protested as an indirect offense to China.

In August of this year, the Philippines and the United States are meeting to review their little-used mutual defence pact and consider U.S. access to its former military bases in the country. According to many observers, all these can be viewed as U.S. initiatives to revitalize and entrench its military involvement in the region.

Filipino demonstrators march during a protest rally in front of the US embassy in
 Manila,  opposing  joint military exercises. Photo by Francis R. Malasig/EP. Click
link to view http://www.youtube.com/watch?v=66V8JQRKDxI&feature=relmfu,
" The Balance in the South China Sea."

Loud and boisterous protests by overseas Filipinos against China’s aggressive stance in the South China Sea are playing into the hands of the U.S. government. Global Filipinos are giving the United States a welcome invitation, which if not carefully dealt with, could undermine or short-change the long-term economic interests of the Philippines in the Spratlys.

Need to assert national sovereignty

During the Philippine celebration of Independence Day last June 12, Vencer Crisostomo, chairman of the national youth group of Anakbayan, denounced Philippine president Noynoy Aquino for begging for U.S. intervention in the Spratlys dispute. The youth leader said, “Their script is predictable: on the grounds of China’s bullying, we will ask for help from our supposed long-standing ally, the U.S. First, we will be given more arms, then more U.S troops, and then eventually the return of U.S military bases.”

“We should assert our national sovereignty on our own terms, instead of allowing ourselves to become the battleground of a U.S proxy war with China,” Crisostomo added.

The trajectory of Filipino protests against China, therefore, must be redirected, not against China’s show of military muscle in the region, but against its continuing refusal and arrogance in refusing to recognize the claims of the other nations, and its bull-headed objection to a multilateral settlement of the conflicting territorial claims. China’s intransigence is the cause of the present stalemate. Absent China’s cooperation, however, the disputes will remain for generations and this could engender a de facto military occupation by whoever has the military wherewithal.

Promoting a multilateral solution

At the same time, the protests should also target American entrenchment of its military goals and operations in the region. Continuing U.S. presence will only exacerbate the tense atmosphere in the South China Sea, which could potentially trigger a military confrontation in the region.

Instead of hyping up the Spratly Islands conflict by issuing provocative and agitative statements, the Philippines can take the lead in promoting a peaceful and multilateral resolution of the Spratlys dispute by the Southeast Asian nation-claimants, without U.S. intervention.

The Spratlys: Crisis in the high seas

It is relatively easy for any government, like the Philippines or China, to claim territorial sovereignty over an island or group of islands such as the Spratly Archipelago in the South China Sea. What complicates this claim is the uncertainty as to how many islands, cays, reefs and atolls are actually present since many remain submerged at high tide, thus making it more difficult even to confirm their presence or exact locations.

Map of Spratly Islands. Photo courtesy of Centre for International Development.

But no matter, several countries have staked out their claims on this group of islands in South China Sea, notably among them, the Spratlys, now the most hotly contested offshore seabed resource in the region. Those who have claimed sovereignty over Spratlys are Brunei, China, Malaysia, the Philippines, Taiwan and Vietnam.

U.N. Convention on the Law of the Seas (UNCLOS)

Spratlys is at the centre of the world’s busiest sea lanes in the region and widely presumed to be rich with oil and other mineral resources such as hydrocarbons underneath and around the islands. The various claims stem largely from jurisdictional rights as set out in the 1982 United Nations Convention on the Law of the Seas (UNCLOS).

But the UNCLOS is not fully determinative because there are conflicting claims of sovereignty over the Spratlys. Under UNCLOS, the country that holds valid legal title to sovereignty over their islands has exclusive right to exploit living and nonliving resources within twelve miles of their territorial sea and 200 miles beyond, known as the exclusive economic zone (EEZ).

Sovereignty issue

One must understand that even if Spratlys is within the Philippines’ EEZ from its coastline, it is not enough to acquire jurisdictional rights. It must first satisfy the sovereignty conundrum.

Does the Philippines or any of the other claimant states have legal title to sovereignty to Spratlys? This is the crux of the problem. At the core of Spratlys dispute is the question of territorial sovereignty, not law-of the sea issues. If the issue of sovereignty can be resolved, then the maritime jurisdictional principles codified under UNCLOS can be applied to the Spratlys.

At present, no claimant government has yet established sufficiently substantial legal grounds to validate its claim over Spratlys. China, the wealthiest and with the most military clout in the region, has been traditionally opposed to multilateral negotiations with its rival claimant countries, primarily because its sovereignty over the islands is held as non-negotiable, although it has been willing to negotiate joint ventures for exploiting natural resources in the area bilaterally.

Obviously, China’s position is self-serving since it can be outvoted by the other countries in the dispute if the issue of sovereignty is put on the table, thus putting the situation in a stalemate. The possibility of resorting to military action by the rival states to defend their claims has already started, albeit on limited scale, but could potentially exacerbate an already protracted problem.

The countries more assertive of their claims over Spratlys are China, the Philippines and Vietnam. Their respective claims are based on acts of discovery, occupation and more recently, by way of the UNCLOS, on certain inferred rights over continental shelf delimitation. When the prospects for petroleum exploration became real during the 1970s, the 1982 UNCLOS appeared as the standard for demarcating offshore jurisdictional limits for resource exploitation.

China’s historical justification

China’s claim of territorial sovereignty in the South China Sea rest on historical claims of discovery and occupation that went back to references to the 12th and 18th centuries during the Sung Dynasty and Qing Dynasty, respectively. There are, however, problems of authenticity and accuracy in describing references for the Spratly Islands. The China case is further compounded by the fundamental question of whether proof of historical title today carries much legal weight to validate acquisition of territory.

Chinese map of Spratly Islands. Photo courtesy of Joe Jones.

The Philippine claim: Discovery and occupation

The Philippines justifies its claim to the Spratlys on discovery and occupation by Tomas Cloma, an enterprising Filipino businessman and owner of a fishing fleet and a private maritime training institute. Cloma aspired to build a cannery and develop guano deposits in the Spratlys. Until World War II when there was no mention yet of potential mineral deposits in the Spratly Islands, the Chinese considered the islands in the South China Sea as having no precious value to them and were only worth their weight in guano.

In 1947, Cloma established a settlement on eight islands of the Spratly Archipelago. He declared himself protector of the islands in 1956 and named them Kalayaan Islands (Freedomland). Then, Cloma deeded the Kalayaan Islands to the Philippines in 1974, after which President Ferdinand Marcos formally declared Kalayaan Islands as part of the Philippines and placed them under the administration of Palawan province. Quite interestingly, the official Philippine position asserts that the Kalayaan Islands group are separate and distinct from the Spratlys and Paracels. This claim is based on a geological assertion that the continental shelf of the Kalayaan Islands group is juxtaposed to the Palawan province and extends some 300 miles westward, into the heart of the Philippines’ EEZ.

Vietnam: History and continental shelf principle

Vietnam’s claims are based on a combination of historical data and the continental shelf principle. According to Vietnamese court documents during the reign of King Le Thanh Tong in the 15th century, the Vietnamese claimed sovereignty over the Spratly Islands. This claim was well documented during the 17th century when Vietnamese maps incorporated the Spratly archipelago into Vietnam. In 1884, the French established a protectorate over Vietnam and asserted their colonial claim to the Spratly and Paracel island groups. Ironically, the present Vietnamese government continues to use these historical claims to justify their sovereignty in the South China Sea.

Under modern international law, the mere discovery of some territory does not sufficiently vest to the discoverer valid title of ownership. Discovery only creates an inchoate title, which must be perfected by subsequent continuous and effective acts of occupation and settlement.

Evidence of permanent settlement is not compelling in the case of China’s claim to the Spratlys. There are considerable doubts as to the authenticity and accuracy of the Chinese historical records. This is why international law usually regards mere historical claims, without evident occupation and permanent settlement, as only as arguably binding and open to legal challenge in order to establish a valid claim over territory in the oceans.

Interestingly, Article 121 of the UNCLOS states that “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive zone or continental shelf.” This particular provision has been used by the claimant countries to justify attempts to build structures on submerged rocks and reefs in order to establish a new EEZ in the region. But if two countries establish structures in close proximity, then an overlapping EEZ could emerge, thus creating potential overlapping claims which may not be resolved under the law of the seas.

Spratlys a vortex of competing claims

In short, the Spratlys situation remains complicated by competing claims and the possibility of military confrontation. China, in the foreseeable future, will remain dominant throughout the South China Sea because it has the economic wherewithal, the technology and the military might to assert itself either through naval force or diplomacy. An expansionist China is being compelled by a need to support greater demands for more goods and services from its burgeoning population of close to 2 billion people, and China has already demonstrated its willingness to use military force, if necessary, to protect and support that expansion.

David vs. Goliath and R.P.-U.S. Mutual defence pact

However, the other claimant states in the South China Sea dispute will not give up easily their sovereignty claims. Fuelled by nationalistic motivations, each country perceives its sovereignty as exclusive and sacred. The history between China and Vietnam in the South China Sea has been antagonistic. Now, the Philippines, in a kind of mismatch between David and Goliath, has entered the fray and been making overtures to the United States for possible military assistance should confrontation with China become imminent.

Filipino-Canadians hold picket at the Chinese Consulate in Toronto to protest China's
 initiative to take control of the Spratly Islands in the South China Sea, July 8, 2011.
Please click the following link: http://www.youtube.com/watch?v=wgPcunivDXg
  to view Loida Nicolas Lewis, Chair of the U.S. Pinoys for Good Governance
(USP4GG) speak against China's "intrusion" in Philippine waters.

The Philippines is relying on its mutual defence treaty with the U.S. that commits American military action to defend governments within the treaty area, including the South China Sea. But the mutual defence pact between the two countries has been suspect for a long time, and whether the U.S. is under obligation to come to the aid of the Philippines in the event of an armed attack is highly dubious. Besides, if there is an armed attack against the Philippines, it should be first reported to the United Nations Security Council of which China is a permanent member. Thus, multilateral diplomacy has to be exhausted before resorting to use of reasonable force.

China to U.S.: Stay out

Will the United States take the risk of alienating and angering its principal trading partner and creditor? Again, that is very unlikely. China has already warned the U.S. to stay out of the South China Sea conflict.

But Filipino-Americans in the United States and other Filipinos in the diaspora, including in Canada, are being urged to picket Chinese consulates around the world to protest China’s apparent power grab in the South China Sea. This is fine if the purpose is to push China to accept multilateral talks among the South China Sea disputants, but not to further inflame the conflict with nationalistic claims that will not result in lasting solutions. Statements such as “China’s intrusion in Philippine waters” or “Spratlys are worth dying for,” especially coming from Filipino émigrés, are vacuous and empty. Here comes again the opportunity for Filipinos who did well abroad to make light of the real economic and poverty issues that confront their countrymen in the Philippines, by focusing on an issue that hardly matters to the average Filipino.

Not that sovereignty or our national patrimony is not an important matter, but this issue has always been sidestepped by our own leaders in government when it comes to foreign investments.

The Malampaya “10 per cent” lesson

Take the case of the Malampaya project in offshore Palawan. Former President Gloria Arroyo ignored and violated the Philippine Constitution by allowing Shell and Texaco to get a 90 per cent stake in the entire project, divided equally between them, and leaving the remainder, or 10 per cent, to the Philippine National Oil Corporation (PNOC).

Or the Joint Marine Seismic Undertaking (JMSU) signed between China, Vietnam and the Philippines in 2005? This is another clear example of a violation of the Philippine Constitution which might have been signed in exchange for bribe-tainted loans, prompting a Philippine newspaper columnist to write: “It isn’t that we sold potentially oil rich shores so cheaply, but we have bartered our souls.”

How about the current Aquino government reclaiming back our constitutional right to our natural resources, instead of making idle overtures on Spratlys over which all we have is a disputable claim to territorial sovereignty?

Waging a proxy war for the U.S.

Something smells fishy in the sudden interest of the present Philippine government and their followers abroad such as U.S. Pinoys for Good Governance (USP4GG) to engage China in the Spratlys dispute. In inviting the United States to join the fray, it looks very obvious that this is turning to be a U.S. proxy war with China on Philippine battleground.

Filipino-Canadians picket the Chinese Consulate in Toronto, July 8, 2011.

But not everything is lost yet over Spratlys. There are precedents of resource development arrangements that have been successfully negotiated in the past which could serve as models for managing resource development in the South China Sea. These arrangements also mirror the problems faced in Spratlys, issues such as disputed sovereignty, maritime jurisdiction, geostatic considerations, and access to natural resources.

Precedents worth considering

Precedents like the Australia–Indonesia Timor Gap Agreement, the Spitsbergen (Svalbard Treaty) Arrangement Svalbard for the cluster of glaciated islands in the Arctic Ocean, and the Antarctic Treaty, can provide insights and salient lessons for negotiating an arrangement that could resolve, if not at least mitigate the disputed sovereignty situation in South China Sea.

These arrangements from the past demonstrate that international agreements are possible and resource development schemes can be created—if the parties are willing to make them happen. However, no agreement would be possible absent the political will to enter into compromises. China must accept multilateral negotiations, bearing in mind that there is more than one or two disputants in the South China Sea.

Posturing from the Philippines will not help either, especially if it would only draw the United States in a proxy war with China. The mutual defence pact between the Philippines and the U.S. has outlived its usefulness, assuming it was in the past. The United States probably needs the sea lanes and the airspace in the South China Sea for its naval force to manoeuvre in protecting Japan and South Korea—two countries which should also play an active role in resolving the Spratlys dispute.

Life in the underground

The exact nature of illegal immigration makes it difficult to establish the actual number of illegal immigrants in any country. At least two of them are now out in the open, from between 7 and 20 million illegal immigrants estimated to be living in the United States.

In an article in The New York Times magazine, Jose Antonio Vargas, who shared a Pulitzer Prize for the coverage of the Virginia Tech massacre, came out of the backwoods to admit he was an undocumented immigrant after turning 30 early this year. He wrote: “I’m done running. I’m exhausted. I don’t want that life anymore.”

Jose Antonio Vargas, Pulitzer Prize winning journalist, admits  in the New York Times
 magazine that he was an undocumented immigrant in the United States. Please click to
view his website "Define American" at http://defineamerican.com/

Vargas wrote that his Filipino mother sent him to live with his grandparents in the United States because she wanted to give him a better life. He was 12 years old when he left the Philippines and only after several years did he realize that he was living in the United States with false documents. Although fearful that his undocumented status could soon be exposed, Vargas was able to finish school and pursue his dream of becoming a journalist by lying about his status and with a little help from people who became his mentors and supporters.

Meanwhile, Elisha L. Dawkins, a US army and navy veteran, is now in jail because the government wants to deport him after they found out he lied in his passport application. Dawkins served with distinction in Iraq and at Guantanamo Bay, although he has never ever been an American citizen. Coming to the United States from Bahamas as an infant, he was raised to believe he was a bona fide American citizen.

Elisha Dawkins, shown in Baghdad in 2007, is accused of lying on a passport application
and has spent a month in jail. Photo by Senior Master Sgt. Brian Boone -US Air Force

In general, illegal immigrants in the United States are in search for well-paying jobs, which in most cases are the type of work the average American citizen would not like to do. These are “underclass” jobs that include harvesting crops, unskilled labour in landscaping and construction, house-cleaning work in hotels and restaurants, all of which have a disproportionate number of illegal workers. Many of them would be willing to take these “underclass” jobs because they still pay relatively higher wages than those in their home countries.

Imagine if all these undocumented workers would voluntarily confess in public as what Jose Antonio Vargas has done because they’re fed up with living in the underground. They probably would not attract the same sympathy or stir up a false sense of honesty or courage to speak up, not having the cache of a Pulitzer prize-winning writer. Without a doubt, the Department of Homeland Security would have swiftly rounded them up and put them on the next flight to their home countries.

Canada, with a more liberal immigration system in place, would have from 200,000 to 300,000 illegally staying in the country. These are mostly people who came by approved visa but overstayed after their visa expired, and those who came as refugees but failed to establish their claim as convention refugees.

By and large the Canadian immigration system is so dysfunctional and works against illegal immigrants. Canada wants the best of the best—those with university and post-graduate degrees—but the jobs available are trades people and low-skilled workers who have no hope of entering Canada under the current points system which favour academic qualifications and not skilled trades. The current system, therefore, is an inefficient way of meeting the demands of the labour market. Besides, applications for immigration for skilled workers take 5 to 6 years to process and that’s a long time to wait.

To stave off illegal immigration, the Canadian government has shifted its focus on recruiting temporary low-skilled workers whose applications can be processed much faster to fill in labour shortages. But temporary foreign worker programs are inherently exploitative. Based on Europe’s experience with similar guest worker programs, they could lead to more serious social issues like racialization and poverty.

A work permit ties the worker to a specific employer and a specific location, creating a relationship of dependency that imitates indentured servitude. Under programs such as the Seasonal Agricultural Worker Program, the Live-In Caregiver Program and the Temporary Foreign Workers Program which includes the Low-Skilled Pilot Project, temporary foreign workers are at the mercy of their employers, a situation that makes these workers vulnerable to exploitation.

At present, temporary foreign workers in Canada are authorized to work for four years cumulatively, after which they must return to their home countries. If they want to come back to Canada under this program, they must wait for another four years before they can apply, which appears like a clear strategy set by the Conservative federal government to keep low-skilled immigrants out.

Given the exploitative nature of temporary work and the lack of opportunity for temporary workers to acquire permanent residence or simply improve their working conditions in the future, it might be better off to go underground and work as illegal immigrants. With a little luck they could eventually apply for permanent residence if they have found an opportunity that underscores their education and skills or if they have met the right partner to marry and be sponsored for permanent residence. But these situations are very few far and between.

Illegal immigrants chase false hope to Canada. Photo courtesy of New York Times.
 A Mexican  illegal immigrant packs his car moving out of a motel in Windsor, Ontario.
Please click following link to view Canada's Conservative Party advertisement in the
last federal elections: http://www.youtube.com/watch?v=bcptS3RSvyY

After the 9/11 terrorist attack on the New York Twin Towers, US immigration authorities tightened up travel to the United States. One Filipino woman was caught by the new restrictions imposed by the United States government. She and her husband both held work permits but she needed to go home to the Philippines because her parents were sick. She left her husband and children in California and decided to return after 9/11. She was refused entry and her immigration papers were invalidated. After she was ordered deported, she entered Canada and attempted to re-enter the United States first from Vancouver and later from Toronto, where she was both refused.

Although returning to the Philippines with her husband and children was an option, she thought she would never have the same economic opportunity to find a well-paying job and give her children a better future. Realizing it would be futile to enter the U.S. in order to reunite with her family, she decided to take the long route to permanent residency in Canada—find work as a caregiver, divorce her husband, remarry a Canadian and get sponsored as a permanent resident.

After ten years since 9/11, by now she would either be a permanent Canadian resident or citizen. But her connection with her family would have been effectively broken and her relationship with her Filipino husband crushed while she continues to nurse hopes she can go back to the United States to reunite and live with her family.

The are other stories about many visitors from the Philippines and South America who came to Canada during the papal summit in 2002 but who decided to stay—first, by claiming refugee status when their visas expired, and living in the underground when their claims were refused. Some of them have been successful in obtaining permanent residence through marriage to Canadians while others are probably still undocumented without status, but contributing to the economy nonetheless.

It may actually cost more for the government and to employers to deport illegal immigrants who are already working in the country. Removing them will choke healthy industries that have relied on their labour, which in the long run can seriously undermine the country’s economic interests.

It is estimated that the number of illegal foreign workers in Canada could reach a high of half a million. The Ontario Construction Secretariat has estimated that the province alone loses over 1.5 billion dollars in unpaid taxes and premiums annually to the underground immigrant economy. That’s a lot of revenue lost.

Deportation and stricter border controls are the easiest solutions but not necessarily the most effective in curbing illegal immigration. Granting amnesty to those already in the country is only a stop-gap measure and not a permanent solution.

Click following link to view National Day of Action Against Jason Kenney
http://www.youtube.com/watch?v=Ty5ntADWBFg

Illegal immigrants are simply willing to work undesirable jobs even for unusually low wages and many employers are taking advantage of this situation. Opening up the borders for low-skilled immigrants and hiring them as temporary workers without any pathway to permanent residency and all the protections and rights afforded to native-born workers or citizens is not going to stem the flow of illegal immigrants. Besides being exploitative and reducing temporary foreign workers to a disposable workforce, many will choose to go underground and this could lead to other serious political, economic, social and ethical issues.

If temporary foreign worker programs are inherently exploitative and there exists a real need in the labour force, people should be allowed to enter Canada with rights as permanent residents. This is a much better approach than continuing with temporary foreign worker programs, deportation or stricter immigration controls. The key issue the government must address is the creation of pathways to permanence, anything less would be a continuing human rights violation.