Bajo de Masinloc: Our Shoal, Our Territory, Our Right

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