MARITIME LAW

MARLAW 334
Topic 10: IMO Conventions
COURSE OUTCOMES:

• At the end of this Course, the student shall be able to:

• Apply UNCLOS to the West Philippine Sea (South China Sea)

dispute and determine the strength of the Philippine position for
its claims
LEARNING OUTCOMES:

• At the end of this Module, the student shall be able to:

• Determine the relevance of UNCLOS to the Philippine claim to

the West Philippine Sea (South China Sea).
INTRODUCTION
• The Philippine islands are at the center of current maritime disputes in the South China
Sea (SCS). The Philippines has had maritime disputes with a number of countries,
including the United States.
• Now, legal and policy attention is focused on sovereignty disputes between the
Philippines and principally China in four areas: Scarborough Shoal; Second Thomas
Shoal (the site of a beached former U.S. Navy LST); Reed Bank (or Reed Tablemount);
and a variety of features in the Spratly island chain, in which the contestants also include
Vietnam and the Republic of China (Taiwan).
• China’s assertion of its nine-dashed-line claim to the South China Sea in its 2009 filing
with the UN Commission on the Limits of the Continental Shelf (CLCS) and its most
recent actions5 to exclude Philippine fishermen from the waters around Scarborough
Shoal emboldened the Philippine government to seek assistance from an international
arbitration tribunal.
LEGAL HISTORY OF THE PHILIPPINE
ARCHIPELAGO
• The modern history of the Philippines can be traced to 1898, when, following
the SpanishAmerican War, the Spanish government ceded to the United
States the lands and waters of what is now the Philippines.
• Cession of these lands and waters was accomplished via the Treaty of
Paris,10 in which a large box (see figure 1) was drawn around the 7,107
islands that form the Philippine archipelago.
• Then, in 1932, the Philippine Senate passed Act No. 4003, classifying all of
the waters inside the Treaty Box as Philippine territorial waters for purposes
of regulating fishing, law enforcement, defense, and resource development.
LEGAL HISTORY OF THE PHILIPPINE
ARCHIPELAGO
LEGAL HISTORY OF THE PHILIPPINE
ARCHIPELAGO
• The documents effectuating the U.S. transfer of sovereignty in the 1930s did not
address the status of the waters which were enclosed inside the Treaty Box or the
legitimacy of Philippine Act No. 4003 which classified the enclosed waters as
internal waters. In 1955, the Philippines notified the Secretary General of the
United Nationals that it regarded all waters inside of the Treaty Box to be territorial
waters.
• In subsequent legislation, the Government of the Philippines established, in Act No.
3046 of June 17, 1961, a series of 80 straight baselines,15 which, as shown in
figure 1, more closely framed the Philippine archipelago and effectively repeals the
old Treaty Box claim. The position of the Philippine government in that legislation
was that all waters inside the baselines were considered internal waters and all
waters between the baselines and “Treaty Limits” were territorial seas.
• The United States and other states regarded this new claim as excessive because
it would have the effect of closing off numerous
LEGAL HISTORY OF THE PHILIPPINE
ARCHIPELAGO
• The documents effectuating the U.S. transfer of sovereignty in the 1930s did not
address the status of the waters which were enclosed inside the Treaty Box or the
legitimacy of Philippine Act No. 4003 which classified the enclosed waters as internal
waters. In 1955, the Philippines notified the Secretary General of the United Nationals
that it regarded all waters inside of the Treaty Box to be territorial waters.
• In subsequent legislation, the Government of the Philippines established, in Act No.
3046 of June 17, 1961, a series of 80 straight baselines,15 which, as shown in figure
1, more closely framed the Philippine archipelago and effectively repeals the old Treaty
Box claim. The position of the Philippine government in that legislation was that all
waters inside the baselines were considered internal waters and all waters between
the baselines and “Treaty Limits” were territorial seas.
• The United States and other states regarded this new claim as excessive because it
would have the effect of closing off numerous international straits (Surigao, Sibutu,
Balabac, and Mindora) and would deny the international community passage through
recognized “internal” passages.
PHILIPPINE ARCHIPELAGIC CLAIMS

• In 2009, the Philippine government enacted new legislation to amend its

prior archipelagic baseline claims.
• That legislation (Republic Act No. 9522) established archipelagic baselines
similar to those shown in figure 1; however, some of the baselines were
adjusted to conform to the technical requirements of Article 47 of the
UNCLOS, which states that baselines cannot generally exceed 100 nautical
miles in length.
• Preliminary analysis by the author and experts at the Department of State18
confirms that the new baselines conform to UNCLOS. None of the baselines
appear to depart in an appreciable amount from the direction of the islands,
and the baseline segments meet the technical standards in terms of length.
PHILIPPINE ARCHIPELAGIC CLAIMS

• The Philippines has still not formally clarified its position on

passage through its archipelagic waters or formally repudiated the
“internal waters” position which it took when it ratified the Law of
the Sea Convention in 1982.
• However, the Philippines indicated in a note verbal that the regime
of innocent passage applies in Philippine “internal” waters.19 And,
on October 26, 1988, multiple sources20 confirmed that the
Philippines had issued a clarifying statement to the Government of
Australia (via the UN Secretary General) that it would respect
archipelagic passage rights contained in UNCLOS:
PHILIPPINE ARCHIPELAGIC CLAIMS

• The Philippine Government intends to harmonize its domestic

legislation with the provisions of the Convention...the necessary
steps are being taken…the Philippine government wishes to
reassure the Australian Government and the States Parties to the
Convention that the Philippines will abide by the provisions of said
Convention....
PHILIPPINE ARCHIPELAGIC CLAIMS

• The Supreme Court of the Philippines also stated that the right of
innocent passage is a matter of customary law and would apply in
both Philippine territorial seas and archipelagic waters.
• The court also recognized that archipelagic sea lanes passage was
a necessary concession which archipelagic states made in
exchange for being able to enclose their outermost islands, but fell
short of describing how it would specifically apply in the case of the
Philippines.
• The president of the Philippines also made a tentative decision to
coordinate the sea lanes’ coordinates and regulations with those of
the International Maritime Organization.
PHILIPPINE ARCHIPELAGIC CLAIMS

• As we turn to the question of claims to waterspace and territory outside the

Treaty Box, it is important to keep in mind that some of the Philippine claims
to features (especially inside KIG) are predicated on the fact that the
features are either low-tide elevations or submerged at all times.
• If it meets those criteria and is within 200 nautical miles of an approved
Philippine baseline, then, as a matter of law, the feature is presumptively part
of the Philippine continental shelf unless there is another continental shelf
that can “compete” for it.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Scarborough Shoal
• The Republic of the Philippines has two basic external SCS claims:
claims to the features known as Scarborough Shoal; and claims to the
other features contained within the geometric area, which the Philippines
asserts are part of the KIG (area in figure 2 framed by the broken red line
and marked PD 1596).
• Although these two areas are depicted in figure 2, the discussion which
immediately follows concerns only the Scarborough Shoal, which is
claimed by the Philippines, the Republic of China (ROC, or Taiwan), and
the People’s Republic of China
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Scarborough Shoal: Features
and Modern History
• Scarborough Shoal is the
largest atoll in the South China
Sea.
• The features form a triangle-
shaped chain of reefs and
rocks.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Scarborough Shoal: Features and Modern History
• In retaliation for the Philippine actions, the Chinese imposed quarantine
controls over the import of Philippine bananas into China and began
stationing warships, and now coast guard vessels, in the area to prevent
Philippine fishing vessels from entering the region.
• According to the Philippine Ministry of Foreign Affairs, Chinese fishing
vessels are being given access to the disputed area. (See figure 4.)
China has made it known that it will forcibly eject and/or arrest any
future Philippine incursions into the area. Aerial photos also show man-
made concrete obstructions which tend to block the entrance to the
lagoon; however, there is conflicting evidence as to who put them there.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Scarborough Shoal: Features and Modern History
• The Shoal is roughly 120 miles off the west coast of Luzon and is well inside the
200-nm claimed exclusive economic zone (EEZ) of the Philippines and the
continental Shelf.
• The features are nearly 500NM from the nearest point on the physical coast of
China. Scarborough Shoal, or Scarborough Reef, is also known as Huangyan
Island (Chinese) Bajo de Masinloc or Panatag Shoal (Filipino).
• The name Scarborough was given to it by the East India Company after a tea
trading ship wrecked on one of the rocks which Spanish cartographers called
Maroona Shoal in 1748.
• For this reason, the particular areas comprising modern day Scarborough Shoal
was regarded by mariners as an area to be “avoided at all costs.” And, to the
extent that surveys were conducted of the features the intent was to properly chart
the features for safety of navigation purposes.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Scarborough Shoal: Features and Modern History
• The reef surrounds a lagoon of around 60 square miles.
• Many of the surrounding rocks protrude only a meter or so from the sea at low tide
and are completely submerged during high tide. Since a shoal is a linear landform
extending into a body of water, Scarborough Shoal is not technically a true shoal;
instead, it is a series of small islets.
• The waters around the Shoal make it a productive fishing area. The area was
charted by the U.S. Navy in three surveys – one in 1964 and two in 2005 – and
contains numerous “cautions” of obstructions in the entrance to the lagoon and
rocks. The lagoon is mostly uncharted.
• Apart from the presence of fishing and law enforcement vessels from China
recently, the area is unoccupied and not realistically capable of human habitation
unless it takes place on artificial structures.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Scarborough Shoal: Features and Modern History
• The reef surrounds a lagoon of around 60 square miles.
• Many of the surrounding rocks protrude only a meter or so from the sea at low tide
and are completely submerged during high tide. Since a shoal is a linear landform
extending into a body of water, Scarborough Shoal is not technically a true shoal;
instead, it is a series of small islets.
• The waters around the Shoal make it a productive fishing area. The area was
charted by the U.S. Navy in three surveys – one in 1964 and two in 2005 – and
contains numerous “cautions” of obstructions in the entrance to the lagoon and
rocks. The lagoon is mostly uncharted.
• Apart from the presence of fishing and law enforcement vessels from China recently,
the area is unoccupied and not realistically capable of human habitation unless it
takes place on artificial structures.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Chinese Claim to Sovereignty Over Scarborough Shoal
• In general terms, China’s claim is based on the argument that it acquired sovereignty through
discovery of unoccupied territory (terra nullius) and established (and maintained) a legal
presence on the island before anyone else. A Chinese Ministry of Foreign Affairs official does
a good job of summarizing the Chinese position in a response to an op-ed in the Wall Street
Journal:

Hundreds of years of jurisdiction has consolidated China's sovereignty over the island.
Historic and legal evidences are explicit, clear, complete and thorough, as proved by
official documents, local chronicles and official maps throughout Chinese history.
China's sovereignty over Huangyan Island has long been recognized and respected by the
international community and had not been disputed by the Philippines. On the contrary,
the Philippine claim over the island has never been recognized by any other country.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Chinese Claim to Sovereignty Over Scarborough Shoal
• In general terms, China’s claim is based on the argument that it acquired sovereignty through
discovery of unoccupied territory (terra nullius) and established (and maintained) a legal
presence on the island before anyone else. A Chinese Ministry of Foreign Affairs official does
a good job of summarizing the Chinese position in a response to an op-ed in the Wall Street
Journal:

The claim that the Huangyan Island belongs to the Philippines because it's closer to the
country is a result of ignorance of the international law. In fact, “geographical proximity”
has long been dismissed by the international law and practiced as the principle of the
solution of territory ownership. If countries can make territorial claims at will on the
ground of “geographical proximity,” the world political map might be a complete mess.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Chinese Claim to Sovereignty Over Scarborough Shoal
• In support of this claim of first discovery and occupation, various Chinese scholars have
offered their views of history.
• Judge Zhiguo Gao, who now serves on the International Tribunal for the Law of the Sea,
wrote in the American Journal of International Law that none of the Philippine theories of
sovereignty effectively establish that the areas were terra nullius when they were annexed by
the Philippines (discussed below) and that “China can show a consistent line of legislative
and administrative acts in respect of the islands concerned.”
• Gao also asserts that China’s claim can be based on historic title as the principle is codified
in the 1998 Permanent Court of Arbitration Decision in Eritrea v. Yemen.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Chinese Claim to Sovereignty Over Scarborough Shoal
• Gao’s theory of acquisition is generally consistent with the views of other Chinese authorities.
The Xinhua news agency published an account by Fu Yu (Chinese National Academies of
Science),40 which said that in 1279 Chinese astronomer Guo Shoujing conducted a survey
of the seas in and around China under a commission from Emperor Kublai Khan, and that
Huangyan Island was chosen as the point for surveying the South China Sea – i.e., that the
shoal was discovered by China during the Yuan Dynasty (1271-1368).
• Moving into the modern era, Gao states that in January 1935, the “Map Verification
Committee of China” declared sovereignty over a number of islands, reefs and shoals,
including Scarborough and later, in 1983, included it among the official maps of the Chinese
government.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Chinese Claim to Sovereignty Over Scarborough Shoal
• In April 2012, the Chinese embassy in Manila issued a statement which repeated this theory
of the claim – i.e., discovery in 1279 or thereabouts. Bonnet writes that this argument has
been “used and re-used” and is in dispute even among Chinese historians.
• He documents that administrative maps of Guangdong Province and the Island of Hainan
(where one would assume that Scarborough Shoal would have been included) do not include
either Scarborough Shoal or the Spratlys as part of China.And, maps of Guandong Province
produced in the first part of the 20th century (based on a Chinese navy expedition in 1909 to
eject Japanese squatters) depict only the Paracel Islands as part of China, not Scarborough
Shoal or the Spratlys.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Chinese Claim to Sovereignty Over Scarborough Shoal
• The next date which the Chinese use in their official statements is 1935.
• Thus, one can reasonably conclude that prior discovery without any evidence of occupation
until, at best, 1935, makes the claim of historic title to be exceedingly weak.
• Furthermore, even if one were to move the date of discovery forward to 1935, when China
allegedly annexed the territory, the only evidence of effective occupation consists of fishing
activities and unspecified scientific expeditions into the region. There are no reports of human
occupation or recurring presence, public works, installation of sovereignty steles, aids to
navigations, surveys, detailed mapping, environmental protection, or other activities to
develop or protect the features – apart from the current exclusionary policies (using law
enforcement vessels) that commenced in 2012.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Philippine Claims to Sovereignty Over Scarborough Shoal
• The features which make up Scarborough Shoal were never inside the so-called
Treaty Box established in the Treaty of Paris, so the Philippine claim to sovereignty is
predicated on other facts.44 The official position of the Philippines is set forth in that
country’s official gazette in a statement made on April 18, 2012. It is quite
comprehensive and reprinted verbatim to aid analysis:

The basis of Philippine sovereignty and jurisdiction over the rock features of Bajo de
Masinloc is not premised 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.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Philippine Claims to Sovereignty Over Scarborough Shoal
• The features which make up Scarborough Shoal were never inside the so-called
Treaty Box established in the Treaty of Paris, so the Philippine claim to sovereignty is
predicated on other facts.44 The official position of the Philippines is set forth in that
country’s official gazette in a statement made on April 18, 2012. It is quite
comprehensive and reprinted verbatim to aid analysis:

Philippine sovereignty and jurisdiction over the rocks of Bajo de Masinloc is, likewise,
not premised 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.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Philippine Claims to Sovereignty Over Scarborough Shoal
• The features which make up Scarborough Shoal were never inside the so-called
Treaty Box established in the Treaty of Paris, so the Philippine claim to sovereignty is
predicated on other facts.44 The official position of the Philippines is set forth in that
country’s official gazette in a statement made on April 18, 2012. It is quite
comprehensive and reprinted verbatim to aid analysis:

As decided in a number of cases by international courts or tribunals, most notably the

Palmas Island Case, a modality for acquiring territorial ownership over a piece of real
estate is effective exercise of jurisdiction. Indeed, in that particular case, sovereignty
over the Palmas Island was adjudged in favor of the Netherlands on the basis of
“effective exercise of jurisdiction,” although the said island may have been historically
discovered by Spain and historically ceded to the U.S. in the Treaty of Paris.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Philippine Claims to Sovereignty Over Scarborough Shoal
• The features which make up Scarborough Shoal were never inside the so-called
Treaty Box established in the Treaty of Paris, so the Philippine claim to sovereignty is
predicated on other facts.44 The official position of the Philippines is set forth in that
country’s official gazette in a statement made on April 18, 2012. It is quite
comprehensive and reprinted verbatim to aid analysis:

In the case of Bajo de Masinloc, the Philippines have exercised both effective
occupation and effective jurisdiction over Bajo de Masinloc since its independence.

The name Bajo de Masinloc (translated as “under Masinloc”) itself identifies the shoal
as a particular political subdivision of the Philippine province of Zambales, known as
Masinloc.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Philippine Claims to Sovereignty Over Scarborough Shoal
• The features which make up Scarborough Shoal were never inside the so-called Treaty Box
established in the Treaty of Paris, so the Philippine claim to sovereignty is predicated on
other facts.44 The official position of the Philippines is set forth in that country’s official
gazette in a statement made on April 18, 2012. It is quite comprehensive and reprinted
verbatim to aid analysis:

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, included
Bajo de Masinloc as part of Zambales.

The name Bajo de Masinloc was a name given to the shoal by the Spanish colonizers. In 1792, another
map drawn by the Alejandro Malaspina expedition and published in 1808 in Madrid, Spain, also
showed Bajo de Masinloc as part of Philippine territory. 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.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Philippine Claims to Sovereignty Over Scarborough Shoal
• The features which make up Scarborough Shoal were never inside the so-called Treaty Box
established in the Treaty of Paris, so the Philippine claim to sovereignty is predicated on
other facts.44 The official position of the Philippines is set forth in that country’s official
gazette in a statement made on April 18, 2012. It is quite comprehensive and reprinted
verbatim to aid analysis:

The Mapa General, Islas Filipinas, Observatorio de Manila, published in 1990 by the U.S. Coast and
Geodetic Survey, also included Bajo de Masinloc as part of the Philippines.

Philippine flags have been erected on some of the islets of the shoal, including a flag raised on an 8.3-
meter high flagpole in 1965 and another Philippine flag raised by Congressmen Roque Ablan and Jose
Yap in 1997. In 1965, the Philippines also built and operated a small lighthouse in one of the islets in
the shoal. In 1992, the Philippine Navy rehabilitated the lighthouse and reported it to the International
Maritime Organization for publication in the List of Lights (currently, this lighthouse is not operational).
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Philippine Claims to Sovereignty Over Scarborough Shoal
• The features which make up Scarborough Shoal were never inside the so-called
Treaty Box established in the Treaty of Paris, so the Philippine claim to sovereignty is
predicated on other facts.44 The official position of the Philippines is set forth in that
country’s official gazette in a statement made on April 18, 2012. It is quite
comprehensive and reprinted verbatim to aid analysis:

Bajo de Masinloc was also used as an impact range by Philippine and U.S. Naval Forces
stationed in Subic Bay in Zambales for defense purposes. The Philippines Department of
Environment and Natural Resources, together with the University of the Philippines, has also
been conducting scientific, topographic, and marine studies in the shoal. Filipino fishermen
have always considered it as their fishing grounds, owing to their proximity to the coastal towns
and areas of Southwest Luzon.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Philippine Claims to Sovereignty Over Scarborough Shoal
• The Philippines’ claim rises and falls on whether it has exercised effective occupation
over the features.
• It cites inclusion in Spanish maps of 1734 and 1899,46 hydrographic surveys in the
area, erection of a flag, and maintenance of a lighthouse in the 1960s as evidence of
government authority over the features.
• Western scholars also highlight that China failed to protest Spanish and British naval
expeditions that surveyed and conducted rescue operations on Scarborough Shoal in
the 1800s or an incident in 1913 when a U.S. Coast Guard cutter rescued a Swedish
vessel that had run aground on the Shoal.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Philippine Claims to Sovereignty Over Scarborough Shoal
• Even though maritime features may only rate a 12-nm territorial sea (versus
the full maritime zone accorded an island in Article 121 of UNCLOS), the
International Court of Justice (ICJ) in Nicaragua v. Colombia reaffirmed that
features are capable of appropriation or claims of sovereignty provided that
the features are above water at high tide. Parts of Scarborough Shoal are
above water at high tide.
• In terms of the facts which support the Philippine claim of effective
occupation, Bonnet and others49 have chronicled that even though
Scarborough was mostly ignored until 1997,50 there was some activity by
former colonial administrators of the Philippines – Spain and the United
States – which undergirds the current Philippine claim.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Philippine Claims to Sovereignty Over Scarborough Shoal
• Maps produced by Spanish cartographers produced in the 18th century show some shoals
off the coast of Luzon at roughly the same latitude as Scarborough, but those maps give
no indication of who had management control over the areas. Also, Hancox and Prescott
document that the United States, the United Kingdom, and possibly Japan conducted
surveys in the area for possible establishment of refueling or observation stations.
• In 1937, while the Philippines was under the territorial administration of the United States,
Captain Thomas Maher, then director of the U.S. Coast and Geodetic Survey, entered into
an exchange of letters between the U.S. high commissioner and the Department of State
because there was confusion over whether the Scarborough Shoal area was part of the
“Treaty Box” since the coordinates for Scarborough were nine miles outside the Treaty of
Paris limits. According to Bonnet, Commonwealth President Quezon also intervened,
saying that the Shoal belonged to the Philippines. The conclusion by then Secretary of
State Hull was as follows:
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Philippine Claims to Sovereignty Over Scarborough Shoal

Because of the absence of other claims, the shoal should be regarded as

among the islands ceded to the United States by the American-Spanish
Treaty of November 7, 1900…and in the absence of a superior claim...the
Department of State would interpose no objection to the proposal by the
Commonwealth Government to study the possibilities of the shoal as an
aid to air and ocean navigation.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Philippine Claims to Sovereignty Over Scarborough Shoal
• After this flurry of activity in the late 1930s, the United States did not take
any overt actions to assert the claim.
• But, in 1957, the Philippine government conducted an oceanographic
survey of the area and, together with U.S. Navy forces based in Subic
Bay in Zambales, used the area as an impact range for defense
purposes. U.S. Navy charts also denote that U.S. Navy vessels
conducted a survey in the area in 1964.
• An 8.3-meter-high flagpole flying a Philippine flag was raised in 1965. An
iron tower that was to serve as a small lighthouse was also built and
began operations that year.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Philippine Claims to Sovereignty Over Scarborough Shoal
• In 1963 the Philippine Navy discovered that the Shoal was being used as
a safe haven for smugglers from Macao.
• The Philippine Navy entered the area, arrested some of the offenders,
and destroyed temporary structures that the criminals had built.52
• Thereafter, plans were put in place to establish regular patrols in order to
ensure that smugglers did not reenter the area. Also, as indicated, in this
same general timeframe the Philippine government erected a flag and a
lighthouse.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Philippine Claims to Sovereignty Over Scarborough Shoal
• In terms of legal declarations, Scarborough Reef (Bajo de Masinloc) is
classified as part of the clegal province of Zambales.
• It is also known as Panatag and Karburo.
• In 2009 the Philippine legislature passed the Republic Act 9522, which
assimilated Bajo de Masinloc and KIG into Philippine sovereignty and
jurisdiction.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Analysis of the Positions of China and the Philippines
• As relates to Scarborough Shoal, it is important to recall that the general principle of international law
is that the title to uninhabited features at sea must be established by one of three methods: cession
(conveyance from one sovereign to another); prescription (peaceful occupation of another country’s
territory over a considerable period of time); or occupation of territory that is not under the control of
any other state (terra nullius).
• Since Scarborough is a feature which was roughly 9 nautical miles outside of the so-called “Treaty
Box,” the Philippines would have to make its case that the territory was occupied by Spain and United
States when it was terra nullius, that the rights to the territory were ceded to the Philippines, and that
the Philippines has effectively occupied it since then.
• The difficulty with that position is that the geographic coordinates in the Treaty of Paris are precise,
and there is no question that Scarborough Shoal is outside of the “box.” In modern property law, in
which title is based on written records of title and precise locations, one cannot wish one’s way into
another geographic location in order to take advantage of a legal benefit. For this reason, it is prudent
for the Philippines to predicate its claim on the generalized notion that these areas have been
effectively occupied by Spain, the United States, and, more recently, the Philippines.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Analysis of the Positions of China and the Philippines
• The difficulty for both China and the Philippines is that they are attempting to
establish sovereignty over features which they have never physically inhabited—and
which are not capable of being inhabited.
• Any efforts they have made regarding these features were simply to catalog them and
record them on nautical charts, with the intent of keeping people away from the Shoal
since the features constituted a serious hazard to navigation.
• Even though some jurists (as was the case in Eritrea v. Yemen) might hold that
Scarborough Shoal is too foreboding and remote to be capable of legal appropriation
and occupation, it is likely that a court seized of this dispute, would classify the Shoal
as a feature (high-tide elevation) capable of appropriation and assess the merits of
both claimants using the same sort of analysis that would be employed if the features
were physically occupied.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Analysis of the Positions of China and the Philippines
• China
• The Chinese claim has two possible pillars: legal annexation via the nine-dashed-
line claim (circa 1947-1949), and the continuous presence by fishermen to
establish effective occupation.
• Assuming for the moment that the annexation was lawful because the area was
terra nullius, the question becomes whether China has done enough to support
its claim that it has effectively occupied the territory.
• In regard to fishing, it is true that fishermen have regarded the area as a rich
fishing area, harvesting fish and marine resources in the absence of a
government license or a management scheme; however, that is hardly evidence
of effective occupation. Indeed, many would characterize unlicensed activity as
illegal.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Analysis of the Positions of China and the Philippines
• China
• Also, borrowing briefly from the English common law, a component in the
passage of title included the “Livery of Seisin,” which consisted of the hand-to-
hand passage of a clod of soil or a twig from the seller to the buyer to symbolize
the passage of title.
• This was legally followed by the Statute of Frauds, which required all transactions
conveying title in property to be formalized and particularized in a very formal
written instrument.
• The Livery of Seisin ritual would certainly not apply to the conveyance of title to
an atoll; however, lawyers schooled in the common law tradition are likely to
regard itinerant fishing in an area as insufficient to denote intent to occupy the
features as a matter of law.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Analysis of the Positions of China and the Philippines
• China
• Occupation requires an affirmative level of state action, such as active
management of the fisheries and licensing of fishing; isolated and sporadic acts
by private citizens do not qualify as occupation.
• Traditional fishing is a legitimate factor under UNCLOS in the delimitation of an
opposing or adjacent continental shelf or adjacent territorial boundaries – around
the margins. In this case, if China had longstanding and internationally
transparent regulations which licensed and scientifically managed the fisheries in
that region, perhaps the result would be different – but those are not the facts at
hand.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Analysis of the Positions of China and the Philippines
• China
• China’s modern actions to make the case for effective occupation based on
government action are also problematic.
• The rules for acquisition of territory were summarized in the first (1998) Eritrea v.
Yemen Arbitration Award: “the acquisition (or attribution) of territory generally
requires that there be an intentional display of power and authority over the
territory, by the exercise of jurisdiction and state functions, on a continuous and
peaceful basis. The latter two criteria are tempered to suit the nature of the
territory and size of its population, if any.”
• Also, the critical data for assessing this conduct are based on actions before a
dispute over the features becomes crystallized.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Analysis of the Positions of China and the Philippines
• China
• Therefore, only actions prior to 1997 (the date on which the dispute became
crystallized between China and the Philippines) are legally relevant in assessing
the strength of the two claims.
• Put another way, once the legal issues have been made known to the
international community, neither party can enhance the legal merits of its case
based on subsequent actions.
• China seems to base much of its occupation claim on fishing in the Shoal; for a
legal claim, it would need to have taken consistent action to assert rights in the
fisheries and regulate fishing prior to 1997, when the bilateral dispute became
manifest.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Analysis of the Positions of China and the Philippines
• China
• Regarding the effectiveness of Chinese actions prior to 1997, the Eritrea case
states that the modern international law of acquisition of territory requires that
there be an “intentional” display of “state functions” on a continuous and peaceful
basis, which, in the case of islands, includes both a declaration of sovereignty
and legislative acts seeking to regulate activity on the islands.
• Simply excluding fishermen from an area was not held to be sufficient evidence of
effective occupation. Also, simply making the annexation declaration in 1935 and
including the territory on Chinese maps circa 1947 is insufficient absent evidence
of effective occupation.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Analysis of the Positions of China and the Philippines
• China
• Most of the contestants in the SCS rely heavily upon early maps as evidence of
their claim; however, the ICJ in the case of Kasikili/Sedudu Island 63 “made it
clear that maps merely constitute information which varies in accuracy from case
to case; of themselves, and by virtue solely of their existence, they cannot
constitute a territorial title….”
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Analysis of the Positions of China and the Philippines
• China
• Perhaps the most important factor in assessing the relative weight of the claims
was China’s complete acquiescence in the U.S. Navy’s survey of Scarborough in
1964 and 200564 using unarmed survey vessels.
• This militates against the notion that China regarded Scarborough to be part of
greater China. As is well documented, China takes a very dim view of U.S. Navy
survey activities in Chinese waters and has used a combination of military actions
and diplomatic protests to resist those actions.
• It undertook no such actions or protests in 1964 or 2005, however, even though
publicly available charts clearly depict the presence of U.S. naval vessels in the
Shoal during those periods.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Analysis of the Positions of China and the Philippines
• China
• The question of which sovereign first discovered Scarborough Shoal is not easily
answered since both sovereigns recorded its location only to warn mariners to
stay clear.
• The aggregate records of activity by Spain, the United States, and the Philippines
over the last 100 years seem to support the notion that Spain was the first to
discover the Shoal and assert a form of sovereignty over it. Regardless, even
assuming arguendo that China first discovered Scarborough Shoal, the claim of
China to have effectively occupied the Shoal over the past 100 years is extremely
weak.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Analysis of the Positions of China and the Philippines
• China
• Further, the case law does not support a claim to historic title. China’s actions in
2012 to establish barriers to prevent Philippine fisherman from entering the area
and threatening the use of military force does not enhance their legal position
since they occurred after the “critical date” when the dispute became crystallized
(~1997).
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Analysis of the Positions of China and the Philippines
• Philippines
• The few isolated rocks above water at high tide are capable of sovereign
appropriation since the ICJ in Nicaragua v. Colombia held that all features which
are above waters at high tide are capable of appropriation. If these features were
below water at high tide or were terra nullius, they would clearly belong to the
Philippines as an appurtenant portion of its continental shelf.
• However, because the question of appropriation has been fairly raised by both
countries, it is clear that Scarborough Shoal is no longer terra nullius and the
claim must be decided based on the strength of each country’s title as of the
critical date (~1997).
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Analysis of the Positions of China and the Philippines
• Philippines
• It is the author’s view that the evidence supports Philippine sovereignty over the
Shoal. When comparing the Chinese and Philippine cases, evidence of effective
occupation is not overwhelming in either case – but, of the two, the Philippines’
case is stronger.
• Past activities by the U.S. Navy and Philippine authorities to survey the Shoal so
that it could be safe for shipping, constitute some positive occupation, along with
its contemporaneous appearance on Philippine charts.
• Past actions by the Philippine armed forces to exercise law enforcement
jurisdiction in the 1960s, both to eject smugglers and to monitor future movement,
show intent to exercise jurisdiction over the atoll.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Analysis of the Positions of China and the Philippines
• Philippines
• The past uses of the shoal by the U.S. Navy for military activities and its legal
assessment that the atoll was part of the Philippines also support the case that
the Republic of the Philippines was exercising sovereignty over the atoll.
• Even though the Philippines today asserts that its current claims are independent
of the territory that was ceded by Spain to the United States, the key point is that
the U.S. government considered it to be part of the Philippines, and any
“occupying” activities which it undertook can be vicariously attributed to the
Philippines because the United States was the legal proxy for the Philippine
people until full independence in 1946.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• Analysis of the Positions of China and the Philippines
• Philippines
• Conversely, after that time – when the U.S. Navy surveyed the area and installed
navigational aids – it took those actions with Philippine consent since it was
functioning as military ally.
• Finally, the Philippines should only be able to claim the Shoal as a high-tide
elevation (or rock), not as an island (as defined in Article 121 of UNCLOS)
entitled to a full maritime zone under Article 121 of UNCLOS. Given that this
Shoal already sits on the Philippine continental shelf and EEZ, the 12-nm zone
around it would simply be assimilated into the larger EEZ and continental shelf
(albeit the features would generate their own territorial sea).
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• The Kalayaan Island Group (the Spratlys)
• Figure 5 depicts the Kalayaan island group, which is currently claimed by the
Philippines and lies within the Spratly island chain. China, Vietnam, and Taiwan
also claim all of the features in the KIG, and Malaysia claims some of them.
• Of note, many of the minor features in the KIG are within 200 nautical miles of its
archipelagic baselines and – absent a superior claim and occupation – would
presumptively be part of the Philippine EEZ/continental shelf.
• The KIG claim includes the various features inside the red line (labelled PD 1596)
and the associated maritime areas. The claim was formally asserted by President
Marcos in Presidential Decree 1596 on June 11, 1978. The total amount of KIG
land area is less than one square mile, but the overall region consists of nearly
65,000 square miles of ocean territory.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• The Kalayaan Island Group (the Spratlys)
• The KIG is part of Palawan Province, and it has a mayor and local government to
see to the needs of its 222 inhabitants, who reside on 9-10 features. The features
consist of six islets, two cays, and two reefs.
• Those currently occupied by the Philippines (all above water at high tide) are listed
in table 1 of the appendix. The high tide elevations occupied other countries are
listed in table 2.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• The Kalayaan Island Group (the Spratlys)
• In addition to the preceding seven high tide elevation features, there are two
submerged reefs that are currently occupied by Philippine military personnel: Rizal
Reef (Commodore Shoal)65 and Ayungin Shoal (Second Thomas Shoal).
• Ayungin Reef – Second Thomas Shoal is near Mischief Reef, which is a
permanent Chinese military outpost built on a coral reef. (See figure 6.)
• Second Thomas Shoal is also a coral reef and hosts a former World War II LST,
now known as BRF Sierra Madre, which the Philippine armed forces deliberately
ran aground in 1999 to establish a Philippine presence near Mischief Reef. (See
figure 7.)
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• The Philippine Ministry of Foreign Affairs stated that it considers Second
Thomas Shoal an “integral part” of the Philippines because it is well within
the 200-nm expanse of the Philippine continental shelf.
• The Chinese government maintains that China exercises “indisputable
sovereignty” over the submerged shoal and will assert its sovereignty to
prevent Philippine ships from entering the area to resupply the military
contingent aboard Sierra Madre.
EXTRA-ARCHIPELAGIC CLAIMS TO
TERRITORY
• There are many contested features in and around the KIG. In the Spratly
island chain as a whole, China occupies seven features, Taiwan occupies
one (the largest island in the Spratly group – Itu Aba), Vietnam occupies
roughly 16 features and Malaysia occupies three.
• Of note, China possesses only one feature that might protrude above water
at high tide (Cuarteron Reef) and could generate a maritime zone. All of the
other features that it occupies are low-tide elevations (see table 3).
• This is because Beijing was the last of the claimants to begin occupying
features in the Spratlys and all the best “real estate” had already been taken.
End of Topic 7
UNCLOS