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The Scarborough Shoal controversy: a personal connection

Posted On 2014 Mar 26
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PART II

Myrna Aquitana_LighthouseThe group forum centered on the discussion of  UNCLOS III’s convention on December 10, 1982. This marked the “culmination of 16 years of work involving participation by around160 countries, representing all regions of  the world, all legal and political systems and the spectrum of socio-economic development, backed by 320 articles and 9 Annexes.”

Per the group’s discussion  they pointed out some of the provisions issued by UNCLOS III which includes: “setting limit, archipelagic status, exclusive economic zones (EEZ), continental shelf jurisdiction and settlement of disputes.”

As it applies to Scarborough Shoal, the group discussed some of the following UNCLOS provisions:

1. Definition of  Baseline – the rights of the sea is “measured from a carefully defined baseline. A sea baseline follows the low-water zone, but when the coastline is deeply indented or is highly unstable, straight baselines maybe used. “

2. Territorial Waters – applies to  “12 nautical miles (22 kilometers)  from the baseline; the coastal state is free to set laws, regulate use and use any resource. From the same baseline, there are 200 miles which includes living and non-living elements such as oil.”

3. Sovereign Right – is the “right given to countries within the 200-mile count.”

4. Continental Shelf – is defined as the “natural prolongation of the land territory to the continental margin’s outer edge or 200 nautical miles  (370 km) from the coastal state’s baseline, whichever is greater. A state’s continental shelf may exceed 200 nautical miles (370 km) until the natural prolongation ends. However, it may never exceed 350 nautical miles (650 kilometers  400 miles from the baseline; or it may exceed 100 nautical miles  (190 kilometers, 120 miles) beyond the 2,500 meter isobath ( the line connecting the depth of  2,500 meters ). Coastal states also have exclusive control over living resources attached to the continental shelf, but not creatures living in the water column beyond the exclusive economic zone.”

5. Exclusive Economic Zone – these are the “extensions from the edge of the territorial waters out to 200 nautical miles (370 kilometers, 230 miles) from the baseline. Within this area, the Coastal State has sole exploitation rights over all natural resources. This term can be commonly used to include the territorial waters and even the continental shelf. The EEZ’s were introduced to halt the increasingly heated clashes over fishing rights, although oil was also becoming important.”

The UP forum further discussed the People’s Republic of China and the Republic of China’s (Taiwan) claim that it was the Chinese people who discovered the shoal centuries ago and that there is a long history of fishing activities in the area. The Chinese claim that the “shoal lies within the nine-dotted line drawn by China on maps marking its claim to islands and relevant waters consistent with UNCLOS.”  In an article published on May 2012 in the PLA  Daily, it states “that Chinese astronomers Guo Shoujing went to the island in 1279 under the Yuan Dynasty as part of  an empire-wide survey called “Measurement of the Four Seas” and that in 1979, historical geographer Han Zhenhua was among the first scholars to claim that the point called “Nanhai” (literally, South Sea) in that astronomical survey referred to is Scarborough Shoal.”

On a personal note, my  second son was born in 1979 and all of us who were born and raised in the province of Zambales, have called our coastal body of water, plainly as China Sea, which now is being called South China Sea or West Philippine Sea due to this territorial controversy.

Former UP College of Law Dean Merlin Magallona, challenges China’s claim that “UNCLOS is not applicable to the West Philippine Sea, because Scarborough Shoal is 454 nautical miles from Hainan, China, 750 nautical miles from Paracel Island (known in China as Xisha Islands and Hoang Sa Archipelago in Vietnam. It is a group of Islands in the South China Sea whose sovereignty is also being disputed by the People’s Republic of China and Vietnam) and 476 nautical miles from Vietnam.”

Per UNCLOS’ principles of International Law on Philippine sovereignty in the Scarborough Shoal dispute, the “Chinese assertions based on historical claims must be substantiated by a clear historic title. It should be noted that under public international law, historical claims are not historical titles. A claim by itself, including historical claims, could not be a basis for acquiring territory. Under international law, the modes of acquiring teritory are: discovery, effective occupation,, prescription, cession and accretion. Also, under public international law, for a historical claim to mature into a historical title, a mere showing of long usage is not enough.”

Other criteria for acquiring territorial bases claims “have to be satisfied, such as that the usage must be open, continuous, adverse or in the concept of an owner, peaceful and acquiesced by other state.  Mere silence by other states to one’s claim is not acquiescence under international law. Acquiescence must be affirmative such that other states recognize the claim as a right on the part of the claimant; that other states ought to respect as a matter of duty. There is no indication that the international community has acquiesced to China’s so-called historical claim.”

“Naming and placing on maps are also not the bases in determining sovereignty. In international case law, relating to questions of sovereignty and ownership of land features, names and maps are not significant factors in the determination of  international tribunals’ determination of sovereignty.”

PHILIPPINE SEA (Sept. 18, 2013) Sailors assigned to the Arleigh Burke-class guided-missile destroyer USS Preble (DDG 88) prepare for an underway replenishment as the guided-missile destroyer USS Curtis Wilbur (DDG 54) conducts an underway replenishment with the Military Sealift Command fleet replenishment oiler USNS Yukon (T-AO 2). Preble and Curtis Wilbur are on patrol with the George Washington Carrier Strike Group in the U.S. 7th Fleet area of responsibility supporting security and stability in the Indo-Asia-Pacific region. U.S. Navy photo by Mass Communication Specialist 3rd Class Paul Kelly

PHILIPPINE SEA (Sept. 18, 2013) Sailors assigned to the Arleigh Burke-class guided-missile destroyer USS Preble (DDG 88) prepare for an underway replenishment as the guided-missile destroyer USS Curtis Wilbur (DDG 54) conducts an underway replenishment with the Military Sealift Command fleet replenishment oiler USNS Yukon (T-AO 2). Preble and Curtis Wilbur are on patrol with the George Washington Carrier Strike Group in the U.S. 7th Fleet area of responsibility supporting security and stability in the Indo-Asia-Pacific region. U.S. Navy photo by Mass Communication Specialist 3rd Class Paul Kelly

The April 8 2012 incident in the Scarborough Shoal is currently the subject of diplomatic discussions between the Philippines and China. Per newspaper articles published immediately after the incident, there were “ Chinese fishing vessels using water cannons to drive off  2 out of the14 fishing vessels by Filipino fishermen, who must have gone close to the Chinese Coast Guard ship.” The Chinese claim that they have “indisputable sovereignty over the South China Sea islands and their adjacent waters Huangyan Island included, and that they are conducting regular patrols within their jurisdiction.”  On the other hand, per the Philippine Department of Foreign Affair’s (DFA) website, they sent a memorandum to the Chinese Embassy, with a message that said “ Bajo de Masinloc is an integral part of the Philippines, over which the Philippines exercises sovereignty, sovereign rights, and jurisdiction; Philippine vessels have been routinely, continuously. peacefully and sustainably been fishing in Bajo de Masinloc.”

Apparently, China’s response to the DFA memo was “we urge the Philippines side to work with the Chinese side to resolve differences through bilateral consultations and negotiations.”

Finally, according to the group discussion in the UP forum, this controversy has yet to be addressed by The International Tribunal for the Law of the Sea (ITLOS). This is an “intergovernmental organization created by the mandate of UNCLOS III.” It is based in Hamburg, Germany and it was enforced on November 16, 1994 whose purpose is “to establish an international framework for law over all ocean space, its uses and resources.”  This Tribunal has the power to settle disputes between party states (there are currently 161; 160 states plus the European Union).

For all of us who somehow have personal connections and interests in this long-standing controversy, all we can do is wait for ITLOS to convene to resolve the dispute. Let’s all look forward to a peaceful and diplomatic settlement in this matter.

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