SCARBOROUGH SHOAL

A Research Report Submitted to

Professor Amanda V. Lachica
English Department
University of Santo Tomas

In Partial Fulfillment of
the course requirements of
English 3 (Academic Writing)

By

Cancino, Realyn R.
Macasaet, Maria Margaret A.
Palafox, Danielle Michelle L.
Pangan, Ian P.

June 30, 2015

 Chapter 1

INTRODUCTION

Historical Background

A territory is a geographic area where a nation exercises sovereignty and jurisdiction.

It is an administrative subdivision of a country hence, its determination is of paramount
importance. The United Nation Convention on the Law of the Sea (UNCLOS) provides
the laws or regulating principles relative to the proper determination of a territorial
baseline.

The South China Sea is part of the Pacific Ocean, semi-enclosed by Brunei, China,
Indonesia, Malaysia, the Philippines and Vietnam, spotted by islands, shoals, reefs and
rocks which are gathered into four groups: Xisha (Paracel Islands), Dongsha (Pratas
Islands), Zhongsha (which includes Huangyan Island or the Scarborough Shoal) and
Nansha (Spratly Islands).

The Philippines and China are both members of the United Nations, who both claim
jurisdiction over Scarborough Shoal, a shallow island located in the South China Sea. The
resolution of said dispute is a long standing argument that concerns not only both
countries, but the interational community as well.

Statement of the Problem

This study deals with the issue regarding the territorial dispute over Scarborough
Shoal. Specifically, it tries to answer the following questions:

1. What is the difference between territorial right and sovereignty or jurisdiction?

2. What are the modes of acquiring territory?
3. What is the international standard governing maritime affairs?
4. What is the nature of the dispute in the Scarborough Shoal?

Objectives of the Study

This study aims to or is written with the following objectives:

1. To differentiate territorial right and sovereignty or jurisdiction.

2. To briefly discuss the different modes of acquiring territory.
3. To present the United Nations Convention on the Law of the Sea (UNCLOS)
standard regarding baseline measurements.
4. To determine whether a Shoal can be legally possessed by a country or should
remain as part of the High Seas.
5. To lay down the contentions or basis of the Philippines and the Peoples
Republic of China in claiming Scarborough Shoal.
Significance of the Study

The issue of whether or not Scarborough Shoal belongs to the Philippines or to the
Peoples Republic of China is a long standing dispute that still remains unanswered at
present. Understanding said issue is relevant to any filipino as its resolution would
determine a national right and privilege since Scarborough shoal is strategically located
and is also known for its rich biodiversity, as well as gas and other mineral sources.

As such, this study could aid the readers and future reasearchers of the topic at hand
in undertsanding the effects of domestic and international laws pertinent to the disputed
territory. Furthermore, this study will also aid its readers in understanding the reasons
behind the claims of both countries, along with their international relevance.

Scope and Delimitation

This study will briefly define and explain several principles under the international
law that affects a countrys dometic law. These includes the principle of Territory in
general. However, the researchers will place more weight on discussing its maritime
aspect. This study will also discuss the modes of acquiring a territory and the different
land configurations of a country. However, the researchers will give emphasis on the
Archipelago Doctrine as well as the laws pertaining to it.

Although this study would present the claims of both countries participating in the
Scarborough dispute, the study would be limited to the presentation of facts alone. It
would include in-depth analysis of each claim nor a thorough discussion of said caims.

Definition of Terms

During the course of the study, the researchers made use of several terms adn used
them operationally. For better understanding the following terms are enumerated and
defined below:

ARCHIPELAGO. This is a group of islands which are situated close to each other to
form a compact whole.

ACHIPELAGIC BASELINE. This is the boundary from which an archipelago

country begins its measurement. The State may draw straight archipelagic baselines
joining the outermost points of the outermost islands and drying reefs of the
archipelago.

BASELINE. This is the boundary from which a nation may begin measurements to
determine the portion of the adjacent oceans or continental shelf over which it may
exercise sovereignty.

SHOAL. This is a land area covered by shallow water, a part of which is not
submerged at the lowest low tide.

SCARBOROUGH SHOAL. This is also called Panatag Shoal, Bajo De Masinloc or

Karburo, and refers to a group of rocks or very small islands and reefs in a triangle
shape 123 miles (198 kilometers) west of Subic Bay. Its nearest landmass is Palauig,
Zambales.

TERRITORY. This constitutes the core of the definition of the State, and as such it is
tied to the issue of jurisdiction and the extent of the power exercisable by the State. It
is also central to the organization of the international order, for a State-based world
community requires rules by which to determine how Territory may be allocated to
States and the sanctions that may be applied for violation of territorial integrity.
 Chapter 2

PRESENTATION OF DATA

Territory

Territory s defined as a fixed portion of the surface of the earth inhabited by the
people of the State. It must be permanent and indicated with precision because its limits
generally define the jurisdiction of the State.

Modes of Acquiring Territory

Loss and acquisition of a territory can be done through any of the following
modes: (1) Discover and Occupation, (2) Cession by Treaty, (3) Prescription, (4)
Conquest or Subjugation, or (5) Accretion.

In Discovery and Occupation, a land belonging to no one (terra nullius) may be

acquired by discovering and effectively occupying the land for a reasonable length
of time. In Cession by Treaty, a previously owned territory maybe surrendered or
transfered to another country through a formal agreement or treaty. In Prescription,
a territory maybe acquired through uninterrupted possession of said land for a long
period of time. In Subjugation or Conquest, use of threat or force maybe employed
by a country over another to gain authority on said land. This mode, however, is no
longer recognized by the International Community. Lastly, Accretion is the increase
in the land area of the State, either through natural means, or artificially, through
human labor. (Cruz, 20013)

Land Configurations

In Topography, deailed mapping or charting of the different features, forms, contours

and elements of a region is neccessary to determine the over-all topograpy of a place. One
essential element is the configuration or shape of the land. And currently, there are four
(4) types of land configuration defined under the International Law. These are: (1)
Coastal Land, (2) Landlocked State, (3) Archipelago, and (4) Island Country.

A Coastal land or country is a region where interaction of the sea and the land
processes occurs. It literally means land next to the sea and is the geographic
configuration of New Zealands west coast and the United States east and west
coasts. On the other hand, A Landlocked state is one which lies between two (2) or more
countries and does not have a sea coast nor a direct access to the sea. Countries such as
Afghanistan, Nepal, Botswana, Central African Republic, Malawi, Rwanda, Uganda,
Zambia, Hungary, Switzerland, Paraguay and Bolivia relie on neighboring transit
countries for their external trades. While Archipelago refers to a group of islands,
including parts of islands, interconnecting waters and other natural-features which
collectively forms an intrinsic geographical, economic and political entity, or which
historically have been regarded as such. (Article 46, UNCLOS) Lastly, an Island country
is a mass of land that is surrounded by water and is isolated and detached from other
countries. Island countries such as the Bahamas, Madagascar, Rhode Island, and Nauru
are significantly smaller than a contnent and lacks land borders.

Maritime Dispute

Philippines Claim - Territorial Right

The State shall protect the nations marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens. ( Article 12 Section 2, paragraph 2, 1987 Constitution)

The Philippine Archipelago

The archipelago doctrine is articulated in the second sentence of the definition of

National Territory as provided in the Philippine Constitution, It provides that, The
water around, between, and connecting the islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal waters of the Philippines. (Cruz,
2003)

The Philippine comprehends as many as 7,100 islands of varying sizes. Under the
archipelago doctrine, all these islands should be considered one integrated whole instead
of being fragmented into separate units each with its own territorial sea.

The national territory comprises the Philippine archipelago, with all the islands and
waters embraced therein, 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. The water around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of the internal waters
of the Philippines. (Article 1, 1987 Constitution)

The above provision substantially classifies the Philippine National Territory into
two. The first part refers to the Philippines archipelago which refers to the compact 7,107
islands contiguous to one another. The second part refers to all other territories over
which the Philippines has sovereignty or jurisdiction. The latter is sometimes called
Regime of Islands under UNCLOS which includes:

1. Kalayaan Island Group

2. Bajo de Masinloc, also known as Scarborough Shoal

-----
The Philippines claims that Scarborough Shoal is within their sovereignty and
jurisdiction. Their basis is that the rock features of Bajo de Masinloc is not based on the
cession by Spain of the Philippine archipelago to the United States under the Treaty of
Paris. The matter that the rock features of Bajo de Masinloc are not included or within the
limits of the Treaty of Paris as alleged by China is therefore immaterial and of no
consequence.

Philippine sovereignty and jurisdiction over the rocks of Scarborough Shoal is

likewise not based on proximity or the fact that the rocks are within its 200-NM EEZ or
CS under the UN Convention on the Law of the Sea (UNCLOS). Although the
Philippines necessarily exercise sovereign rights over its EEZ and CS, nonetheless, the
reason why the rock features of Bajo de Masinloc are Philippine territories is anchored on
other principles of public international law.

Effective Occupation and effective jurisdiction were both exercised by the

Philippines over Scarborough Shoal since its independence. Philippines supported their
claims through the Philippine flags which were erected as early as 1965. In addition,
lighthouses were built in one of the islets of the shoal which were rehabilitated in 1992.

With regard to Chinas historical claim, it is but worthy to note that historical
claims should be based on authentic historic titles. Also, under public international law,
historical claims are not historical titles. A claim itself could not be used as a method of
acquiring a territory.

Moreover, international law has laid down the modes of acquiring a territory 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 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 states. Mere silence by other states to ones
claim is not acquiescence under international law. Compliance must be affirmative such
that other states recognize such 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 have acquiesced to Chinas so-called historical claim.

In relation to name-giving and maps, name-giving (or names in general), and placing
of land features on maps, these are also not 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.

------
What does the term all other territories mean? What comprises this all other
territories?

Baselines Laws in the Philippines

A. Republic Act No. 3046 as amended by Republic Act No. 5446

This law basically defines the archipelagic baselines to include the Scarborough
Shoal and designates the Kalayaan Island Group (KIG) as a regime of islands.

B. Presidential Decree No. 1599

This law is a unilateral declaration by the Philippines of its EEZ as measured from
the baselines as defined by RA 5446. It was signed by then Pres. Ferdinand Marcos on 11
June 1978.

C. Republic Act No. 9522

In 2009, this law amended Republic Act No. 3046. The statute now under scrutiny.
The change was prompted by the need to make RA 3046 compliant with the terms of the
United Nations Convention on the Law of the Sea which the Philippines. Among others,
UNCLOS III prescribes the waterland ratio, length, and contour of baselines of
archipelagic States like the Philippines complying with these requirements, RA 9522
shortened one baseline, optimized the location of some basepoints around the Philippine
archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG)
and the Scarborough Shoal, as "regimes of islands" whose islands generate their own
applicable maritime zones. The new law adopted a mixed-formula for fixing the
baselines. Relying on UNCLOS Article 121 (regime of islands) and by authority of
UNCLOS Article 14 which authorizes a combination of methods for determining
baselines to suit different conditions, it adopted archipelagic baselines for the main
islands of the Philippines and the regime of islands for the Kalayaan Islands Group in the
Spratlys area and Scarborough Shoal. In other words, the 2009 law shunned the
package deal, so to speak, to encompass all the islands, including the KIG and
Scarborough Shoal, within archipelagic baselines.

How did each baseline law altered the territorial boundaries of the Philippines
maritime territory?

Jurisdictional Claim

Jurisdiction is the authority exercised by a state over persons and things within or
sometimes outside its territory, subject to certain expectations.

Chinas Claim - Historical Right

 Constitutional Law

China promulgated its Declaration on the Territorial Sea on September 4, 1958

particularly Article 1 which provides the 12 nautical mile territorial sea.

The 1992 Law on the Territorial Sea and the Contiguous Zone of the Peoples
Republic of China, Article 2 applies the breadth of its mainland coast, coastal island and
off-lying islands of the South China Sea.

Historical Claim

China, being the third largest country with an area of 9.6 million square kilometers
stretches its border over 22,000 kilometers on land and its coastline extends over 18,000
kilometers. They have 6,536 islands, Taiwan being the largest, Hainan being the second
and South China Sea Islands are outermost island group of China.

According to Chinas history, around 13th century or as early as 2,000 years ago,
Emperor Kublai Khan from Yuan Dynasty assigned Guo Shoujing, an astronomer, to
conduct a territory survey to unify the calendar nationwide. In 1279, Huangyan Island as
China calls it, is one of the 27 measuring location in the survey. Its long-term jurisdiction
proves its sovereignty claim through a number of Chinas government actions.

Huangyan Island has been under the administration of Guangdong province before
and it was currently under the administration of Hainan province.

A Reviewing Commission from the Chinese Government was tasked to review maps
and atlases which were published in January 1935, listing 132 names for Chinese Islands
and other insular features in the South China Sea.

Further inspections and surveys, Chinese Government published the 1947 atlas in
February 1948, which is an atlas of national administrative districts. It draws an eleven-
dash line to indicate the geographic scope of its authority. In May 1949, the four (4)
island group were placed under Guang Dong Province. They have maintained its position
with relatively minor changes over the years.

International Implication

The said arbitrary case between Philippines and China is still pending under
International Tribunal on Maritime Dispute. The Chinese Government is still firm on
their claim and has already constructed some infrastructures primarily for military
purposes. The Philippines on the other hand is under the Visiting Forces Agreement with
the United States of America wherein the Armed Forces of the Philippines were trained
under Balikatan Exercises to strengthen its national security. Moreover, according to
Secretary Voltaire Gazmin of the National Defense, the Philippine Government is
likewise considering to execute another Visiting Forces Agreement with Japan
 Chapter 3

CONCLUSION AND RECOMMENDATION

Conclusion

The dispute over Scarborough Shaol begun since early 1900s. The resolution of this
dispute is vital to both countries because determining national territory is a form of self-
determination; it is not just for supremacy purposes but rather it is one of the
characteristics of a state which forms part of territorial integrity that is inherent in
sovereignty and independence of a state.

The two (2) countries involved in this dispute premised their claims upon valid
assertions rendering it difficult for the International Tribunal to give an outright decision
regarding the matter. The Philippines based its claim not on the cession made under the
Treaty of Paris nor over the guidelines for maritime baseline measurements under the
UNCLOS. The Philippines, instead, anchored its claim on the principle of Jurisdictional
Right in Public International Law. Under this principle, the Philippines have exercised
Effective Occupation and Effective Jurisdiction over Scarborough Shaol since its
independence as supported by the national flag and the light house built in the said area
as early as 1960s. (DFA-Official Gazette, 2012) China, on the other hand, based its
contentions on Historical Claim as supported by the 1279 map made by the astronomer
Guo Shoujing during the Four Seas Survey under the Yuan Dynasty and the several
expeditions made by China in the said area. (South sea Conversations - wordpress.com,
2012)

The national interest lies in keeping the largest possible scope of maritime territory,
and that to demote full sovereignty over those waters to a mere exclusive jurisdiction
over the economic uses is tantamount to surrendering a part of that sovereignty. However,
it cannot be disputed that both countries are members of the UN organization. As
members of this international community, it is but a neccessity to give due respect to each
member-country and to abide by the rules laid down by the organization.

Recommendation

Technically, both countries have plausible stand in the Scarborough dispute. It

cannot be denied that Chinas assertions were sufficiently supported by the
countrys historical records. However, it is also a fact that the foundation of the
Philippines contentions were in line with the International standards, as well as its
own domestic law.

UNCLOS provides for numerous means of peaceful settlement of maritime

disputes, which include non-binding means between the disputing parties
and binding means involving third parties such as arbitration and adjudication.
While all States may resort to any of the non-binding means at any time, Article
287(3) requires them to select their preferred binding means involving third parties.
If they do not do so, they are deemed to have selected arbitration under UNCLOS
Annex VII as the mode of dispute settlement. Since neither the Philippines nor
China expressed any preferred third-party dispute settlement mechanism in their
ratifications, the researchers sees Arbitration as the best mode of dispute settlement.

Arbitration is the process by which the parties to a dispute submit their

differences to the judgment of an impartial person or group appointed bymutual
consent or statutory provision. Through this mode, both parties may present and
defend their contentions before a competent tribunal. The judgment made by such
tribunal is based solely on the evidences presented and is free from biasness.

Furthermore, the researchers would also like to encourage its readers and the
future researchers to conduct and in-depth analysis of the contentions of both
countries and to perform a comparative study on the relation of history and
domestic law to international law. Also, a future study on the effects of this maritime
dispute to both countries, as well as to their neighboring countries or the disputes
effect to the marine ecology in Scarborough shoal is highly recommended by the
researchers. Since this study only focused on data presentation and superficial
correlation, any in depth study of the matters presented in this research is
encouregd of to the future researchers.
 REFERENCES

Books

Batongbacal, J. L. (2001). The Maritime Territories and Jurisdictions of the Philippines

and the United Nations Convention on the Law of the Sea. Philippine Law Journal. 76
(2), 123-168.

Cruz, I. (2003), International Law, p. 5-6 927, Quezon Avenue, Quezon City, Philippines
Central Lawbook Publishing Co. Inc.

Cruz, I. (2003), International Law, p. 110-115, Quezon Avenue, Quezon City, Philippines
Central Lawbook Publishing Co. Inc.

Cruz, I. (2014). Philippine Political Law. 927 Quezon Avenue, Quezon City, Philippines:
Central Lawbook Publishing Co. Inc.

Department of Foreign Affairs. (1991). Primer on the United Nations Convention on the
Law of the Sea.

Jayewardene, Hiran Wasantha (1990). The Regime of Islands in the International Law.
Martinus Nijhoff Publishers.

Martinez-Tria, M. (2013). A Critical Analysis of the New Baselines Laws of the

Philippines (R.A. No. 9522), 87-90.

Munawwar, Muhammad (1995). Ocean States: Archipelagic Regimes in the Law of the
Sea.

Pagalangan, Raul . Recent Developments in the Baseline Laws. Quezon City Philippines:
University of the Philippines Diliman.

Supreme Court Reports Annotated (2011) Magallona vs. Ermita G.R. No. 187167.
Quezon City, Philippines: 927 Quezon Avenue Central Lawbook Publishing Co, Inc.

Talmon, S., & Bing, B. (2014). The South China Sea Arbitration: A Chinese Perspective.
Oxford and Portland, Oregon: Hart Publishing.

Taton, R. (2013). The Scarborough Shoal Dispute: An Analysis of the dispute resolution
mechanisms under International Law.

Trillanes, Antonio (2013). The Baseline Issue. Quezon City, Philippines: University of the
Philippines Diliman.
1987 Constitution of the Philippines, Quezon City, Philippines: 84 P. Florentino St.,
Quezon City. Rex Printing Company, Inc. (2010)

Electronic Sources

Hanada, Yukinora Retrieved from

http://www.academia.edu/4835233/The_Strategic_Significance_of_the_Scarborough_Sh
oal_Standoff_and_China_s_Aggressive_Legalism_

Hollins, Daniel Retrieved from

http://www.eoearth.org/view/article/156775/

Lolita Farmer Retrieved from

http://www.australianfilipina.com/article.aspx?aeid=32016

Peace Palace Library Materials Retrieved from

http://www.peacepalacelibrary.nl/research-guides/special-topics/territory/#introduction

Philippine Star Retrieved from

http://www.philstar.com/headlines/2014/04/03/1308385/chinas-position-paper-sea-
disputes-philippines