Evaluation of the Nature and Legal Basis of the Cloma/Colonia Claim to the South China Sea

The Cloma Claim has been recognized by scholars as a legitimate claim since its discovery in 1947 (Samuels 1982; Fernandez 1992; Hil et al., 1991). As described by a leading scholar of the South China Sea, Marwyn Samuels, the Philippines justifies its claims to the Spratlys principally on “discovery” of certain islands by Tomas Cloma in 1947
(See Samuels, Contest for the South China Sea, 81-86). As noted by Samuels, Tomas Cloma, an enterprising Filipino businessman and owner of a fishing fleet and private maritime training institute, aspired to open a cannery and develop guano deposits in the Spratlys. It was principally for economic reasons, therefore, that Cloma “discovered” and claimed the Spratly Islands and established several colonies on them by 1950 (Samuels 1982, pp.
81-86). Interestingly, in 1971, the Philippine government asserted its first official claim to the Spratly’s based solely on the Cloma Claim in response to a Philippine fishing vessel being fired upon by Taiwanese forces stationed on Itu Aba Island (Fernandez 1992; Villacorta 1991).

Other scholars have also recognized the importance of Samuels research regarding the Philippines discovery claims over a group of islands known as the Kalayaan Island Group (KIG) based on the discovery and occupation of certain
features in the KGI by one of its citizens, Tomas Cloma, who in 1956, asserted ownership over fifty-three features in the South China Sea, naming them Freedomland (Beckman & Davenport 2010). These features were claimed on
Tomas Cloma’s own behalf and not on the behalf of the Filipino Government (Samuels 1982 at p. 82), and the features which were occupied by Tomas Cloma in 1956 are “regarded as res nullius and may be acquired according to the modes of acquisition recognized under international law, among which are occupation and effective administration (Samuels 1982, p. 89).

Significantly, as noted by the sescholars, the Philippines claim was based not on their own discovery and occupation of the Spratly Islands, but solely on the Cloma Claim and the rightful discovery and occupation of the Islands by Tomas Cloma in 1947 (see Fernandez 1992 and Samuels 1982). Importantly, under international law t h e Cloma Claim to the Spratly Islands has never been refuted. Further, according to Samuels the notification of the
Cloma Claim was submitted to the U.S. Securities and Exchange Commission, the US.. Board of Geographic Names and the U.S. Embassy in Manila (Samuels 1982 ) . Moreover, Samuels further notes that a September 1968 letter from the Assistant Geographer of the U.S. State Department to a representative of the Kingdom/Republic suggests that, the Cloma claim was given recognition as a legitimate claim by the U.S. Government (Samuels 1982; See also Hurwitt 1980, p. 29).

The Cloma Claim under International Law

Though long ignored internationally, claims to sovereignty over territory in the South China Sea are based on acts of discovery and occupation. (Joyner, p. 58). The significance of the claims became more striking for governments
when the prospects for petroleum development became more real during the 1970s and in 1982 The Law of the Sea became the standard for jurisdiction limits for offshore resource exploitation.

Though not a member of the United Nations (UN), Colonia remains a viable actor in the SCS under international law (United Nations Charter). United Nations membership is not a prerequisite for sovereignty under customary international law and the Charter recognizes the obligation of its UN members to protect the rights of non- member states, particularly to protect them from aggression by other states (United Nations Charter; Bederman 2010). Sovereignty has been recognized as “a hypothetical trade, in which two potentially conflicting sides, respecting de facto realities of power, exchange such recognitions as their least costly strategy” (Wallerstein 2004).

Importantly, Colonia also has established the four commonly recognized elements necessary for recognition as a sovereign nation highlighted below (1) Discovery and Notification to the World; (2) Occupation; (3)Governance; and (4) Recognition. (Brand 1995; Krasner 2001; Bederman 2010): Discovery and Notification to the World: The following documents serve as notification from the 1950s up to the present time.

a.  Hartendorf Chaptero n Freedomland – provides the details from the 1950s of Cloma’s notification to the world
of discovery of the territory, declaration of the state, establishment of government, civilian occupation, foreign relations, Philippine support, and visit to UN.

b.  Proclamation changing the name of the country from Freedomland to Colonia and to elevate its status from a principality to the Kingdom of Colonia (Proclamation 1974).

c.  Charter of the Free Territory of Freedomland, 6th day of July, 1956, Executed by Tomas Cloma President, Tomas Cloma & Associates.

d.  Decree of Change of Name to Colonia, with Resignation of Tomas Cloma as Head of State, and with Appointment of John Barnes as Head of State, position Absolute, August 24, 1974.

e.  Deed of Succession 1974.

f. Constitution of the Kingdom of Colonia and governing laws.

g.  The notification of the Cloma Claim to the U.S. Securities and Exchange Commission, the U.S. Board of Geographic Names and the U.S. Embassy in Manila (Samuels 1982; ).

h.  Colonia’s Amicus Brief filed in the Hague in May 2014.

Extracted in part from: Virginia A. Greiman, A Model for Collaborative Development in the South China Sea, Journal of Asian Finance, Economics and Business Vol. 1 No. 1(2014) 31-40 originally published in the Proceedings
of the International Management and Development Association, Resolving the Turbulence ni the South China Sea: A Pragmatic Paradigm for Joint Development Taiwan, June 29 2013.

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