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riod of time have acquired a valid title by prescription, but they d not, and such claim as she had she renounced in 1951. In my view therefore the period of Japanese control may be disregarded for the purpose of ascertaining which State now has sovereignty. Nor do I think anything may be made of the argument that the mention of the Spratly Islands in the Peace Treaty was intended to be narrower than the area to which Japan had laid claim. A similar argument has been advanced by the Japanese (in my view correctly) in regard to the mention of the Kurile Islands in the Peace Treaty. But in the case of the Kurile Islands the issue involved two islands which were up to 1951 indisputably under the sovereignty of Japan, and which did not come within the normal geographical use of the expression
'Kurile Islands'. Most of the islands outside what is obviously 'Spratly Islands' are not capable of occupation in law (because they are not above water at all times), Japan did not have a clear title to the others but only a claim, and it seems to me obvious that the intention of the Allies was that Japan should be totally divested of any claim to the Spratly Islands in its widest sense.
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the
This narrows us down to a field of five starters Philippines, the UK, South Vietnam, France and China. I think that the first two of these can be totally eliminated from the running, and the third, South Vietnam, would come in a poor third on the evidence in the Memorandum.
The Philippines
There are three possible ways in which the Philippines could put forward a claim to the Spratly Islands: cession, contiguity and occupation. The cession argument would depend on establishing that title was transferred from Spain by the reference in the 1900 Treaty between Spain and the United States to "any and all islands belonging to the Philippine Archipelago, lying outside the lines described in Article III of that Treaty'. I do not think the argument would stand up - firstly because it does not seem to me that the Spratly Islands form part of the Philippine Archipelago, and more importantly because there is not the slightest evidence (at least not in the Memorandum) that Spain ever had sovereignty over the Spratly Islands, and there is a clear rule of law as well as of common sense which is phrased as 'nemo dat quod non habet'. The contiguity argument fails in my view because there is not sufficiently close contiguity (being on the Philippine Continental Shelf is not enough and in any case they are also on the Continental Shelf of Malaysia and even conceivably of Indonesia and South Vietnam). Moreover contiguity will base a title in international law only where sovereignty cannot be established by a State on some other ground (compare Gibraltar and Hong Kong Island). The third ground of claim - occupation depends on maintaining, as the Philippines has done, that Japan had sovereignty over the islands, or such of them as could be acquired, and that on her renunciation of sovereignty the islands came under the trusteeship of the victorious Allied Powers. They thus became terra nullius and were capable of effective occupation by the Philippines depending partly on the activities of Mr Cloma and partly on occupation directly on behalf of the Philippine government in 1970. But I have already shown that Japan never acquired a title to the islands but only a rather dubious claim. In my view the Philippine Government are in a similar position to the Government of Japan in 1939 they have a claim which might in time, by occupation in the absence of protest or challenge by other claimants, transform itself into a valid title. It has not yet done so, and it seems highly unlikely that it will.
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