by Frances Drew Bosque
Scarborough
Shoal or Scarborough Reef, also known as Huangyan Island or Panatag
Shoal, is located between the Macclesfield Bank and Luzon Island of
the Philippines in the South China Sea or West Philippine Sea. It is
a group of rocks or very small islands plus reefs in an atoll shape.
The shoal was named after the East India Company tea-trade ship
Scarborough which was wrecked on one of its rocks on 12 September
1784 with all lives lost. Scarborough Shoal forms a triangle-shaped
chain of reefs and rocks or very small islands 55 kilometers (34 mi)
in circumference with a total area including shallow water areas of
150 square kilometres. The shoal encompasses a shallow lagoon
measuring 130 km2 and approximately 15 meters (49 ft) deep. The shoal
is a protrusion from a 3,500 m deep abyssal plain. Several of the
rocks or small islands including “South Rock” are ½ m to 3 m
high, and many of the reefs are just below water at high tide. To the
east of the shoal is the 5,000-6,000 meter deep Manila Trench. Near
the mouth of the lagoon are the ruins of an iron tower, 8.3 m high,
that was constructed by the Philippine Navy as a lighthouse in 1965. The shoal is about 123 miles (198 km) west of Subic Bay. The nearest landmass is Palauig, Zambales, on Luzon Island in the Philippines, 137 miles (220 km) due east.
Today,
Bajo de Masinloc is known for its significant contributions to
sustaining marine life in the West Philippine Sea, and the entire
South China Sea. Philippine academic institutions like the Marine
Science Institute have conducted studies and carried out projects on
the shoal since the late 1980s. As more scientific data became
available, they realized the importance of Scarborough Shoal as an
offshore shelter, regeneration area, migration path, and food supply
for the fisheries in, as well as around, the South China Sea. Its
importance can be plainly seen in satellite images of chlorophyll
concentrations in the water. Chlorophyll represents plankton, the
base of the marine food chain; where the plankton go, the fish
follow. One satellite image demonstrates the biological linkage
between Bajo de Masinloc and the archipelago very clearly, showing a
plume of plankton connecting the reef to the country’s waters. This
shows that therefore, the Scarborough Shoal and its surrounding area
are rich in fishing grounds.
Conflict
in the South China Sea is not a new phenomenon. In fact, the area has
experienced conflict for centuries. Most of the disputes have
involved nations claiming islands or surrounding waters as part of
their sovereign areas, primarily the Spratlys and the Paracels. More
recently, some areas in the South China Sea, such as the Scarborough
Shoal, have been the center of controversy. Over the decades, six
countries have competed for rights over the area including China,
Philippines, Brunei, Malaysia, Vietnam, and Taiwan. But today, China
and the Philippines are the nations contending for control over the
prized fishing grounds found in the Scarborough Shoal. The current
conflict in the Scarborough Shoal is primarily between the
Philippines and China, although in the past, several Southeast Asain
nations have struggled for control over the various hotspots of the
South China Sea.
The
rocks of Bajo de Masinloc are Philippine territory. The basis of
Philippine sovereignty and jurisdiction over the rocks is not
premised on the cession by Spain of the Philippine archipelago to the
United States under the Treaty of Paris. That the rocks 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
is likewise not premised on proximity or the fact that the rocks are
within its 200 nautical mile EEZ or continental shelf under the UN
Convention on the Law of the Sea (Unclos). Although the Philippines
necessarily exercises sovereign rights over its EEZ and continental
shelf, the reason why the rocks of Bajo de Masinloc are Philippine
territory is anchored on other principles of public international
law. As decided in a number of cases by international courts or
tribunals, most notably the Palmas Island Case, a mode for acquiring
territorial ownership over a piece of real estate is effective
exercise of jurisdiction. In the Palmas case, sovereignty over the
Palmas Island was adjudged in favor of the Netherlands on the basis
of “effective exercise of jurisdiction” although the island may
have been historically discovered by Spain and historically ceded to
the United States in the Treaty of Paris.
In
the case of Bajo de Masinloc, the Philippines, since it gained
independence, has exercised both effective occupation and effective
jurisdiction over Bajo de Masinloc.
The
name Bajo de Masinloc (which means Shallows of Masinloc or Masinloc
Shoal) itself identifies the shoal as a particular political
subdivision of the Philippine province of Zambales, known as
Masinloc. In fact, One of the earliest known and most accurate maps
of the area, named Carta Hydrographical y Chorographica de las Yslas
Filipinas by Fr. Pedro Murillo Velarde, SJ, and published in 1734,
showed Bajo de Masinloc as part of Zambales. This map showed the
route of the Malaspina expedition to and around the shoal. It was
reproduced in the Atlas of the 1939 Philippine Census.
The
Mapa General, Islas Filipinas, Observatorio de Manila published in
1990 by the US Coast and Geodetic Survey, also showed Bajo de
Masinloc as part of the Philippines. In 2009, when the Philippines
passed an amended Archipelagic Baselines Law fully consistent with
Unclos, Bajo de Masinloc was classified under the “Regime of
Islands” consistent with the Law of the Sea.
“Section
2. The baseline in the following areas over which the Philippines
likewise exercises sovereignty and jurisdiction shall be determined
as “Regime of Islands” under the Republic of the Philippines
consistent with Article 121 of the Unclos:
a) The Kalayaan Island
Group as constituted under Presidential Decree No. 1596; and
b) Bajo de Masinloc, also
known as Scarborough Shoal.”
On
the other hand, China tries to justify that Scarborough Shoal is
their territory by asserting that they have sovereignty over the
shoal, which it calls Huangyan Island. In April 2012, the Embassy of
the People’s Republic of China published the basis of its claim to
Bajo de Masinloc, through a paid advertisement in the local
newspapers. In sum, China argues that it is entitled to Bajo de
Masinloc on the ground that it first discovered the island, gave its
name and incorporated it into its territory, and had always exercised
jurisdiction over it. A serious examination of these grounds,
however, bears out severe internal inconsistencies. Examination of
the evidence shows the basis to be largely published fiction. As to
the claim of first discovery, China asserts that Chinese explorers
discovered the shoal in the 13th century during the Yuan Dynasty. But
the Yuan Dynasty was a foreign dynasty, established by Kublai Khan,
and China was at the time merely part of the great Mongol Empire. If
Bajo de Masinloc was indeed acquired by virtue of discovery, then
such discovery could only be in the name of the sovereign, the Mongol
Empire. Perhaps it should therefore be claimed by the remnant of the
Mongol Empire, which is Mongolia, not China.
Be
that as it may, as Justice Carpio points out and as seen on some of
the maps in the exhibit, any ordinary person can see how tenuous this
claim is. “Huangyan Island” never appears as such in any of the
ancient maps of China, even after the Yuan Dynasty. We have two
examples. In the “Hun Yi Jiang Li Li Dai Guo Du Zi Tu” (Map of
the Entire Empire and Frontier Countries) made by Quan Jin in 1402,
based on maps from the Yuan Period, the Philippines is included in
the lower part of the map. But, it appears as only as a collection of
small vague patches, indicating only the largest islands of Mindoro
and parts of Palawan. Huangyan Island is not indicated at all. The
Philippines argues that the historic claim of China over the
Scarborough Shoal still needs to be substantiated by a historic
title, since a claim by itself is not among the internationally
recognized legal basis for acquiring sovereignty over territory. It
also asserts that "there is no indication that the international
community has acquiesced to China's so-called historical claim,"
and that the activity of fishing of private Chinese individuals,
claimed to be a "traditional" exercise among these waters,
does not constitute a sovereign act of the Chinese State. Since the
legal basis of its claim is based on the international law on
acquisition of sovereignty, the Philippine government explains that
its Exclusive Economic Zone claim on the waters around Scarborough is
different from the sovereignty exercised by the Philippines in the
shoal.
The
risks of a clash between China and Japan are rising and the
consequences could be calamitous. The Scarborough Shoal is ours.
Therefore, we should not give it to the hands of the people who took
away our right to claim what truly belongs to our own territory. A
war might be coming but us, Filipinos, should not be afraid. We
should stand up for what's right and fight for what is ours just like
how our heroes fought for the freedom that we are enjoying today. Let
us not repeat history and be manipulated again in our own land. We
should not fight because it is what United States of America want us
to do. Each and everyone of us should fight because after all, we are
all independent Filipinos. Our country may not be as rich as China,
or as powerful as Russia. We may have nothing compared to what other
countries have, but there is one thing that we should always
remember: our rights. It may be the only thing that we have now
against China, but it is indeed the most powerful weapon to win this
battle. Therefore, let us never allow anyone to take it away from us.
Sources:
http://www.australianfilipina.com/article.aspx?aeid=32016
http://www.voanews.com/content/china-philippines-tensions-on-agenda-at-asean-summit/2731498.html
http://www.reuters.com/article/2015/02/04/us-philippines-china-idUSKBN0L81IM20150204
http://www.ibtimes.com/china-philippines-territorial-dispute-ancient-maps-debunk-chinese-claim-over-scarborough-1686914
