Scarborough Shoal

Jurisdiction over waters is necessarily dependent on jurisdiction over land to which the waters adjoin. This is governed by the 1982 United Nations Convention on the Law of the Seas (Unclos). Although the Scarborough Shoal is outside the limits set by the Treaty of Paris for Philippine territory, the Philippines has had a long history of activities related to the area. The area’s official Philippine name is Bajo de Masinloc, which in English means “below Masinloc,” Masinloc being a town in Zambales.  The waters have been treated as a fishing area of Filipino fishermen. The Philippine Air Force, together with United States planes when the United States still had bases in the Philippines, used the area for target practice. It has been the practice of the Philippine Navy to chase away foreign fishing vessels intruding into the area.

Our Constitution declares that Philippine territory consists of the archipelago and “and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas,” that is, other territories which, depending on available evidence, might belong to the Philippines. The 1973 Constitution referred to these as “other territories belonging to the Philippines by historic right or legal title.”
The extent of the archipelago can be verified by reference to the lines drawn by the Treaty of Paris. But the Constitution does not specify where the “other territories” over which the Philippines has jurisdiction are. Scarborough Shoal lies outside the limits of the Treaty of Paris.

The latest move of the Philippines to assert its claim over Scarborough Shoal, among other areas, was the enactment of Republic Act 9522, the new baseline law. Baselines are lines drawn along the low water mark of an island or group of islands which mark the end of the internal waters and the beginning of the territorial sea. Each country must draw its own baselines following the provisions of the Law of the Sea.

The People's Republic of China and the Republic of China (Taiwan) claim that the shoal was first discovered and drawn in a map in the Yuan Dynasty as early as 1279 and was historically used by Chinese fishermen. In 1279, Guo Shoujing, a Chinese astronomer, performed surveying of the South China Sea, and the surveying point was reported to be the Scarborough Shoal. In 1935, China regarded the shoal as part of the Zhongsha Islands. In 1947, the shoal was given the name Minzhu Jiao. In 1983, it was renamed Huangyan Island with Minzhu Jiao reserved as a second name. In 1956, China protested Philippine remarks that South china Sea islands in close proximity to Philippine territory should belong to the Philippines. China's Declaration on the territorial Sea, promulgated in 1958, says in part,

The breadth of the Territorial Sea of the People's Republic of China shall be twelve nautical miles. This applies to all territories of the People's Republic of China, including the Chinese mainland and its coastal islands, as well as Taiwan and its surrounding islands, the Penghu Islands, the Dongsha Islands, the Xisha Islands, the Zhongsha Islands, the Nansha Islands and all other islands belonging to China which are separated from the mainland and its coastal islands by the high seas.

The Philippines has invited China to submit the case to the International Tribunal for the Law of the Sea (Itlos). The tribunal is an independent judicial body established by the Unclos. It can adjudicate disputes arising from the Law of the Sea. So far it seems that China has rejected the submission to the Itlos.

All is not lost, however. Part XV of the Unclos provides for a comprehensive system for the settlement of disputes. It requires parties to settle their disputes by peaceful means. They have a choice of four alternatives. The submission to the Itlos, which seemingly has been rejected by China, is just one of them. The remaining three are: the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII to the convention, and a special arbitral tribunal constituted in accordance with Annex VIII to the convention. But the parties must agree on the choice of the method of settlement to be used.  This is a major challenge to the legal and diplomatic skills of the Aquino administration.