The China-Philippines sea row re-emerged in a more worrisome status on April 8, 2012, when the Philippine navy interfered with the group of Chinese fishermen anchored in Scarborough Shoal or the Panatag Shoal in the Philippine name. This standoff remains controversial for over a week.
Territorial disputes among sovereign states and nations have been existing since the time of greed unknown to man. The histories of the world never tell a lie that territorial disputes speak of imperialism and war of aggression whereabouts.
As a consequence of a territorial dispute, the war of aggression always demands a price. Unfortunately, the costs of waging war are expensive—too costly for the Philippine government to buy it.
On this present China-Philippines sea row in the West Philippine Sea or the South China Sea, both China and the Philippines claimed steadfastly to “owning a piece of rock.”
What is at stake? Three underlying issues can be of significance when considering plans of action:
- the interest of China;
- the interest of the United States of America (US); and
- the sovereignty of the Philippines
Meanwhile, the US perceived humble presence in the China-Philippines sea row can be misleading. It either brings better insights or worse positioning than it most likely be.
Take note that the US can also be perceived as the most active actor in the Asia-Pacific region that would only draw its deck cards when the move is advantageous to its interest. If this is so, then, the US would benefit from the China-Philippines sea row backwash.
China’s Claim Over Scarborough Shoal
Scarborough Shoal (as called Huangyan Island in China) is a triangular atoll with a border of 46 kilometers. It has been considered as a part of the Zhongsha Islands in China since 1935.
China has since been constantly emphasizing and kept on asserting its claim whenever the Scarborough Shoal became the subject of dispute among the claiming parties. Hence, China claimed it and most islands in the West Philippine Sea or the South China Sea were based on historical ownership.
The Philippines’ Claim Over Scarborough Shoal
Bajo de Masinloc, what the Philippines named Scarborough Shoal, is 124 nautical miles west of Zambales. The Philippine government claimed Scarborough Shoal as a part of the Masinloc Municipality in Zambales.
Moreover, the Philippine government also claimed sovereignty over Scarborough Shoal under public international law and Philippine sovereign rights under the United Nations Convention on the Law of the Sea (Unclos). [1]
Backgrounds of Both Claims
Scarborough Shoal was named after the capsized tea-trade ship, Scarborough. The China-Philippines sea row first started on April 30, 1997, when the Filipino naval ships prevented the Chinese boats from approaching the shoal. This historic event prompted China to express its strong protest against the Philippines’ attempt. [2]
China has been adamant in claiming over Scarborough Shoal even as early as 1935. China listed the Scarborough Shoal as part of the Zhongsha Islands.
In 1956, China again protested against the Philippines’ claim of sovereignty over some of the islands in the South China Sea on a geographical basis. Ergo, the Philippines has made its claims over islands in the South China Sea based on territorial proximity around the Philippine archipelago.
Considering China’s reaction for the sake of argument after the Philippine government claimed sovereignty over those contested islands in 1956 claim, it could be possible that this triggered China to promulgate its 1958 Declaration on the Territorial Sea that recognized the breadth of the territorial sea of China. This declaration covered the Zongsha islands, where Scarborough Shoal was a part of these islands.
Moreover, the 1992 Law on the Territorial Sea and the Contiguous Zone reaffirmed the sovereignty of China over the Zongsha Islands. [3]
On the other hand, the Philippines has become too confident, so to speak, in claiming over Scarborough Shoal primarily based on Unclos provisions and the Philippine constitution.
China, Philippines, and Unclos
Unclos codifies comprehensive governance of law and order in oceans and seas around the entire globe. Its salient tasks enforce coastal and archipelagic states to exercise sovereignty over their territorial sea, establish exclusive economic zones (EEZs), subject parties to the International Tribunal for the Law of the Sea in cases of disputes, and others.
The Philippines signed Unclos on December 10, 1982, and ratified it on May 8, 1984, with reservations.
China ratified Unclos on June 7, 1996, also with reservations on territorial sovereignty, and made clear its opposition to Section 2 of Part XV of Unclos concerning respect to all categories of disputes.
Conclusion
China asserts sovereignty over Scarborough Shoal based on its historical claim. Its control over this shoal is evident in China’s issued proclamations and constant assertions.
On the contrary, the Philippines has no basis to claim the Scarborough Shoal on the principle of acquiring a territory that no one has been claiming for (terra nullius), if and only if the Philippines asserts its claim based on public international law relating to modalities of acquisition.
As far as independence is concerned, the Philippines gained its independence from the US in 1946. China has issued and asserted a declaration claiming over Zongsha islands, where Scarborough Shoal is a part, as early as 1935, and in 1947—Scarborough Shoal was given a name to Minzhu Jiao.
Ergo, the Philippines cannot just suffice its claim based on the principle of terra nullius. It can also be deduced that the Philippines failed to consider the historical basis and pertinent historical documents on the territorial claim when drawing out the territorial border.
Furthermore, the 1978 map published by the Philippine National Mapping and Resource Information Authority does not include Scarborough Shoal as part of the Philippine territorial sea.
Moreover, the Philippines has already expressed its claim over the islands in the South China Sea and that was limited only to the Kalayaan islands based on Presidential Decree No. 1596. [4] Ergo, the Philippines’ claim over Scarborough Shoal is virtually inconsistent unless otherwise PD No. 1596 was superseded.
While the Philippines has been willing to submit the dispute to the international tribunal, as far as provisions in Unclos are concerned, China, on the contrary, closed its door for any international interventions.
This China’s response should not be undermined, misinterpreted, or even misunderstood. For it only shows that China is firm and impossible to give up Scarborough Shoal and is very clear on this issue living by its historic claim. The Philippines should think twice in pursuing any moves beyond diplomacy.
But up to what extent can diplomacy go? Or what will happen if all diplomatic options fail? Will history repeat itself? Which of these, the Falklands war or the Mischief Reef settled case?
Meanwhile, circumventing the whole China-Philippines sea row issue based on historical perspective and the present international treaty, especially Unclos, this territorial scuffle is unwise, unfitting, and incompetent to resolve through Unclos provisions because of the following issues that cannot be set aside:
- While Unclos has provided the sovereign state a basis for a claim to a 200 nautical miles EEZ to an island, the disputed Scarborough Shoal is categorically not an island.
- China’s interest to expand over Asia and the Pacific cannot be set aside; in the same way, the US would never settle to just sit and watch the game of China with the Philippines as the latter being her “little sister.”
- Both the Philippines and China signified their reservations upon its ratification of Unclos. [5]
The signatories-disputing parties have expressed reservations upon subscribing to Unclos. Then, what makes sense in bringing up the issue to the international tribunal and resolving it based on Unclos when both the disputing parties-signatories have conditions hostile to the very Unclos provisions?
Neither bilateral diplomacy nor waging war against each other is the best option to generate a win-win solution at this moment. But the right timing for diplomatic options would be the last resort.
The Philippines should come to know that despite the US allegiance to the Mutual Defense Treaty and her promises, still, the US would position itself toward achieving her interest at whatever cost.
It may also be contentious that proximity claim must not supersede historical claim. However, painful it is, history teaches us good values such as respect.
When China’s claim over Scarborough Shoal has been recognized so long before the birth of Unclos and other international laws and independence of the other claiming sovereign states like the Philippines, then why is the latter, still so persistent of a claim when in fact both have expressed reservations?
In one way, doubts cast a black hole over this China-Philippines sea row pointing out back to the role of the US in the present arena of territorial conflict in the Asian empire.
Although the US has not yet ratified Unclos, her role in either diplomacy or military support to the Philippines poses malignant symptoms to China’s common sense yet is dubious in some ways.
When the US cast a favorable side to the historical basis of Great Britain over the proximity claim of Argentina to the Falkland Islands, the 1982 Falklands war broke out. But seeing China expanding in some way or another in the Asia-Pacific region, can the US afford to do nothing with the Scarborough Shoal dispute? The Philippines then will be torn between two boulders.
The best option left for this China-Philippines sea row is the right timing for any diplomatic moves. Not today, while the iron is still hot. Not also tomorrow when pride and sovereignty will be at stake. But as of this moment, the Philippines may show respect and listen to the giant’s historical claim drama. It isn’t a form of being bullied; neither is it a body language of cowardice nor is it a symptom of being on a losing end in a battle that we have never been to. Only fools rush in. ▲
(This opinion piece of the author was first published on Yahoo! Voices of the already defunct Yahoo! Contributor Network)
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References:
[1] Zou, Keyuan. “Law of the Sea in East Asia: Issues and Prospects.” Routledge: 2005.
[2] “Philippine Position on Scarborough Shoal and the Waters Within Its Vicinity.” Philippine Official Gazette, April 18, 2012.
[3] “1992 Law of the People’s Republic of China on Territorial Sea and the Contiguous Zone” by lehmanlaw.com
[4] “Presidential Decree No. 1596” by chanrobles.com
[5] “Declarations and Statements” by un.org
Since 2011, Regel Javines has been writing online, sharing news and analysis on a range of noteworthy and urgent social issues. He completed his bachelor’s degree in office administration at the Polytechnic University of the Philippines (PUP)—Taguig Campus, where he also served as editor-in-chief of the official school newspaper. See Regel’s published articles here.