On April 19, the Philippine Department of Foreign Affairs published a paper titled Philippine position on Bajo de Masinloc and the waters within its vicinity. The paper is an official presentation of the legal arguments by which the Philippines seeks to prove its ownership of the Scarborough Shoal, also known in Taiwan and China as Huangyan Island (黃岩島), but a close examination of these arguments reveals they do not stand under scrutiny.
First, the paper states that the Philippines’ claim over the Scarborough Shoal is not based on the Treaty of Paris between Spain and the US, or on the Philippines’ exclusive economic zone (EEZ) as defined by the UN Convention on the Law of the Sea (UNCLOS). Nor is it based on the principle of proximity, but rather, on the international legal principles of effective exercise of jurisdiction and occupation.
The paper gives as an example the Island of Palmas case, in which an international court ruled that the island belonged to the Netherlands, not the US, based on effective exercise of jurisdiction, although the island may have been discovered by Spain and lies within an area ceded to the US under the Treaty of Paris.
Drawing a parallel with the Scarborough Shoal, the paper says: “In the case of Bajo de Masinloc, the Philippines has exercised both effective occupation and effective jurisdiction over Bajo de Masinloc since its independence.”
The Philippines has apparently abandoned its previous position that its ownership of the Scarborough Shoal or the Spratly Islands (Nansha Islands, 南沙島) was based on the principle of proximity and on its EEZ under the UNCLOS, and is instead basing its claim on the principle of effective exercise of jurisdiction.
The paper cites various maps to prove that the Philippines owns the Scarborough Shoal. It says the Carta Hydrographica y Chorographica de las Yslas Filipinas, published in 1734 by Father Pedro Murillo Velarde, includes the shoal as part of the province of Zambales.
In 1792, the Alejandro Malaspina expedition drew a similar map which showed the route of the Malaspina expedition to and around the shoal and was reproduced in the Atlas of the 1939 Philippine Census. The paper also says that the Mapa General, Islas Filipinas, Observatorio de Manila, published in 1990 by the US Coast and Geodetic Survey, also includes the Scarborough Shoal as part of the Philippines.
None of these maps proves that the shoal belongs to the Philippines.
The Mapa General, Islas Filipinas, Observatorio de Manila was first published in 1899, and it does not specify that the shoal belongs to the Philippines. If all land shown on the map belonged to the Philippines, why would the southern part of Taiwan be shown at the top and part of Borneo at the bottom? Does this mean these places belong to the Philippines too? It is unacceptable for the Philippines to try to confuse the issue by making false claims.
The paper further states that the Philippines raised its flag and built a lighthouse on the shoal in 1965, reporting it to the International Maritime Organization for publication in its List of Lights. The paper says that then-Philippine congressmen Roque Ablan and Jose Yap raised another national flag on the shoal in 1997.
At present, there is no lighthouse on the shoal, nor is there any Philippine flag flying there. There are no buildings or other structures on it that show the Philippines ever exercised effective jurisdiction over it.
The paper then criticizes China’s historical claim over the Scarborough Shoal. It says that a historical claim does not equal a historical title in international law. A historical claim on its own is not a sufficient basis for acquiring a historical title, and demonstrating long usage is also not enough.
It says that such usage must be open, continuous and acquiesced to by other states. It says that other states’ silence about a claim is not acquiescence under international law, and that acquiescence must be affirmative such that other states recognize the claim as a right on the part of the claimant and agree that other states have a duty to respect it. The paper concludes that the international community has never acquiesced to China’s historical claim.
Taiwanese and Chinese fishermen have long made use of the shoal and the waters around it. Other nearby countries may have never discovered the shoal, in which case there can be no question of the usage of it being open and acquiesced to by other states.
Besides, until recently, the shoal and its adjacent waters had never been an area of contention among surrounding countries. When the Republic of China (ROC) announced the inclusion of the Macclesfield Bank (Zhongsha Islands, 中沙群島) in its territory in 1947, the Philippines did not voice opposition. At the time, many members of the international community recognized the islands belonged to the ROC. Many maps around the world can be held up as evidence that they do belong to the ROC.
On Sept. 2, 1956, and in February 1957, the US was granted permission by the ROC to carry out topographical surveys around the Scarborough Shoal, the Macclesfield Bank and other areas.
It was not until the mid-1960s that the Philippines made its own claim to the shoal, prompted by the idea that there could be oil and natural gas reserves in the area. So there is some doubt about the Philippines’ motive for staking a claim.
With relation to the Scarborough Shoal and the Spratly Islands, no matter what kind of legal claim the Philippines puts forward, it cannot go beyond the territories included in the Treaty of Paris.
The Treaty of Paris is internationally recognized and has long been implemented in the South China Sea. If the Philippines appropriates the Scarborough Shoal and the Spratly Islands on the pretext of “effective jurisdiction,” it will be guilty of the flagrant occupation of another country’s territory.
Chen Hurng-yu is a professor in the Graduate Institute of Asian Studies at Tamkang University.
Translated by Julian Clegg
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