Scarborough Affair

The Scarborough Islands dispute began when China blocked a Filipino warship from arresting Chinese fishermen in the area, a group of islands and reefs about 140 miles from the Philippines shoreline. Manila requested to take the issue to international court last week. Beijing refused, maintaining that the area is an indisputable part of Chinese territory.

Scarborough Shoal is a classic case of a territorial sovereignty dispute. The Philippines asserts that it has exercised effective occupation and effective jurisdiction over the Shoal since independence in 1946. To reinforce this claim it points out that it built a lighthouse on the Shoal in 1965 and that it has conducted surveys and research in the waters surrounding the Shoal.

China asserts that Scarborough Shoal and its adjacent waters have been Chinese territory for generations and that it discovered the Shoal, incorporated it into its territory and exercised jurisdiction over it. Further, China also claims that the Shoal is included in the Zhongsha Islands, one of the four archipelagoes inside China’s infamous nine-dashed line map to which it has historic claims to sovereignty. China also argues that the Philippines never disputed Chinese jurisdiction until 1979.

Scarborough Shoal is a large atoll surrounded by a reef with a lagoon of about 150km2. It is valuable because the lagoon and the surrounding waters are rich in fisheries and other marine life which have been exploited by fishing vessels from both China and the Philippines for decades. Scarborough Shoal is located 124 nautical miles (nm) from Zambalies Province in the Philippines and 472 nm from the coast of China. It is within the 200 nm exclusive economic zone (EEZ) claimed by the Philippines from its main archipelago.

The shoal was named after a tea-trade ship Scarborough which was wrecked on the rock with everyone perishing on board in the late 18th century. The Chinese name is Huangyan Island, while the Philippine name is Panatag Shoal, Bajo de Masinloc.

Because five or so rocks on the Shoal are reportedly above water at high tide, it meets the definition of an “island” under the 1982 UN Convention on the Law of the Sea (UNCLOS). Therefore, it is subject to a claim of sovereignty in its own right and is entitled to a 12 nm territorial sea of its own. The fact that it is within the EEZ of the Philippines is not relevant to the sovereignty issue. Neither is the fact that the Shoal is within the nine-dashed lines on China’s infamous map.

The news revealed Chinese hackers defacing the University of the Philippines’ official website in protest. The hackers posted a map to the website with a caption reading, “We come from China! Huangyan Island is Ours.” Huangyan Island is the shoal’s Chinese name.

Afterward, many Chinese websites including China Youth Online were attacked, with a message opposing that left by Chinese hackers: “Scarborough Shoal is ours. The Spratly Islands are ours.”

It would be foolhardy for the Philippines to think that it can maintain its claim to the Scarborough Shoal by force of arms. And our people know it. Thus the Philippines has made the only rational choice, namely to seek a resolution of the controversy with China through peaceful means.

The Philippines plans to seek counsel from the United States military over its standoff with Chinese ships operating in the Scarborough Shoal, a new step in the simmering dispute.

Philippine leaders said that they would bring up the issue when they met with U.S. officials next week.

The recent flare-up between the Philippines and China over Scarborough Shoal is a territorial sovereignty dispute, but it also raises issues relating to the interpretation and application of UN Convention on the Law of the Sea. The main issue is whether the two States can move beyond the current stand-off and negotiate a joint cooperation arrangement to manage fisheries exploitation in the area in dispute.

There are at least two possible options on how potential conflicts between China and the Philippines over Scarborough Shoal can be managed. Both require that the two States first agree (at least informally) that sovereignty over the Shoal and the 12 nm territorial sea around it are in dispute. They can do this without acknowledging the legitimacy of the other’s claim and without prejudice to their own claim.

The first option is for the two States to agree to refer the territorial sovereignty dispute to an international court or tribunal and ask them to decide which State has the better claim to sovereignty. This was done by Malaysia and Indonesia over Sipidan-Ligitan and by Singapore and Malaysia over Pedra Branca/Pulau Batu Puteh. In both cases the States agreed to refer the sovereignty disputes to the International Court of Justice.

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.

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.

The second option is for the two States to agree to set aside the sovereignty dispute and jointly manage the fisheries in the disputed area. They could either declare a fishing moratorium in the disputed area or agree to a total annual catch for each States’ nationals. Each State could agree to regulate its own nationals, and focal points and hotlines could be established to enable patrol vessels to immediately report any activities contrary to the arrangement.

If such a cooperative arrangement could be negotiated for the disputed area around Scarborough Shoal it could serve as a model for cooperative arrangements in the other disputed areas in the South China Sea.

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