SCARBOROUGH ISSUES

Scarborough Shoal

Joaquin G. Bernas, S.J.

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 resolution of the controversy with China through peaceful means. 

But what is the bone of contention?  It is about a group of islands, reefs and rocks and waters possibly rich in natural resources. 

Jurisdiction over waters is necessarily dependent on jurisdiction over land to which the waters adjoin.  This is governed by the 1982 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 Philippine 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 fishing area of Filipino fishermen.  The Philippine Air Force, together with United States planes when the US 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 fisher 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 draw 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 R.A. 9822, 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. 

R.A. 9522 provides for one baseline around the archipelago and separate baselines for a “regime of islands,” that is, islands other then those within the archipelago.  Like the archipelago, islands within a “regime of islands” outside the archipelago have their own “territorial sea, contiguous zone, exclusive economic zone and continental shelf.”  R.A. 9522 places the Scarborough Shoal within a Philippine regime of islands.

The enactment of RA 9522 was immediately met with protest from China and Vietnam, both of which also claim historic title over the area.  At the moment, national interest is focused on the activities of Chinese fishing vessels and patrol planes in the area of the Scarborough Shoal. 

Although the land area may be relatively insignificant, the waters are not.  From the baseline are measured the territorial sea (12 nautical miles outward), the contiguous zone (24 miles from the outward edge of the territorial sea), and the exclusive economic zone (200 miles from the outward edge of the territorial sea).  A coastal state has control over fishing, mining, oil exploration, and other economic resources within the exclusive economic zone.  These are what the Philippines wants to protect.  When one considers the vastness of the territory and the riches that lie within it,  it is understandable why states should quarrel over their control.  This is where we are today in relation to China.  How will the quarrel be resolved?

The Philippines has invited China to submit the case to the International Tribunal on 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 submission to the International Tribunal for the Law of the Saw. 

All is not lost, however.  Part XV of the Convention 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.   Submission to the International Tribunal on the Law of the Sea, which, it seems, has been rejected by China, is just one of them. There still remain three: 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 administration.

23 April 2012