"Legal Status of the Airspace Over an Indeterminate Territory: The Case of the Spratly Islands"
Herbert Aclan Loja (PhD Candidate)
Summer/Fall 2017, Volume 4, Number 2, pp 7-31
Abstract: This paper proposes an alternative approach in addressing the legal status of the Spratly Islands and its superjacent airspace. The paper adopts the conceptual framework of territorial sovereignty indeterminacy first articulated in the case of Eritrea v. Yemen (1998) in determining the legal status of the Spratly Islands. Relevant provisions of the 1951 San Francisco Peace Treaty and pertinent United States of America (U.S.) archival records will be examined. The proposition that the Spratly Islands may have the status of an indeterminate territory possessed of an indeterminate territorial airspace finds strong support from the terms of Article 2(f) of the San Francisco Peace Treaty and from the behavior of the states parties particularly of the U.S. before, during, and after the conclusion of the treaty. The paper invites a reassessment of the foundation of the claimant states' territorial claims to the Spratly Islands based on ancient or historic title and res nullius. It advocates for a less adversarial way of pressing for the claims. This is the first instance where the concept of indeterminate territory is applied in examining the legal status of the Spratly Islands and its airspace.