ramification of scarborough shoal

RAMIFICATION OF

SCARBOROUGH SHOAL

GROUP 7 MEMBERS

Merlin, Meiki

Elopre-Arugay,

Ma. Elvira

Chua, Lorena

Quimado, Julie

Montances, Hazel Joy

Ubas, Michelle

Ortiz, Xyza Paola

RAMIFICATION OF SCARBOROUGH SHOAL

I. Background

II.Philippine Claims

III.China Claims

IV.Legal Issues

V. Arbitral Proceedings

BACKGROUND

SCARBOROUGH SHOAL

Chinese name: Huangyan Island; Huángyán Dǎo

Philippine names: Bajo de Masinlóc, Panatag Shoal, Karburo

- a group of rocks or very small islands plus reefs in an atoll shape, rather than as a shoal

- is located between the Maccles field Bank and Luzon Island of the Philippines in the South China Sea.

- named after the East India Company tea-trade ship Scarborough which was wrecked on one of its rocks with everyone perishing on board on 12 September 1784.

BACKGROUND

BACKGROUND

- triangle-shaped chain of reefs and rocks or very small islands 55 kilometres (34 mi) in circumference with a total area including shallow water areas of 150 square kilometers.

- encompasses a shallow lagoon measuring 130 km² and approximately 15 metres (49 ft) deep.

- a protrusion from a 3,500 m deep abyssal plain.

Several of the rocks or small islands including "South Rock" are 1/2 m to 3 m high, and many of the reefs are just below water at high tide. Near the mouth of the lagoon are the ruins of an iron tower, 8.3 m high, that was constructed by the Philippine Navy in1965. To the east, the 5,000 -6,000 meter deep Manila Trench separates the shoal from the Philippine archipelago. Scarborough 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.

BACKGROUND – Standoff at Sea

STALEMATE. Both sides agreed to back off but the dispute remains unsolved. Philippine sailors inspect on of the Chinese fishing boats which ventured into Scarborough Shoal in April. Photo courtesy of DFA

BACKGROUND – ASEAN Fiasco

FRACTURES. ASEAN did not deliver the consensus on the South China Sea that the Philippines wanted. AFP PHOTO/Tang Chhin Sothy

BACKGROUND – China Frictions

MENDING TIES. DILG Secretary Mar Roxas met with Chinese Vice President Xi Jinping on September 22, 2012. Photo courtesy of Xinhua/Xie Huanchi

BACKGROUND – Trillanes and the Brady Notes

SENATE CLASH. Senate President Juan Ponce Enrile and Sen Antonio Trillanes battled it out over China. Graphic by Emil Mercado

BACKGROUND – Passport War, Sansha Admin

GOVERNMENT SEAT. Sansha City's top government office is found on a South China Sea island called Yongxing. File photo from china.org.cn

BACKGROUND – Why Scarborough is Important

RICH IN RESOURCES. Scarborough Shoal sits in the middle of a region rich in minerals, oil and gas. Graphic by Emil Mercado

PHILIPPINE CLAIMS

• As early as the Spanish colonization of the Philippines, Filipino fishermen were already using the area as a traditional fishing ground and shelter during bad weather.

PHILIPPINE CLAIMS

• In 1957, the Philippine government conducted an oceanographic survey of the area and together with the US Navy force based in then U.S. Naval Base Subic Bay in Zambales, used the area as an impact range for defense purposes. An 8.3 meter high flag pole flying a Philippine flag was raised in 1965. A small lighthouse was also built and operated the same year.

PHILIPPINE CLAIMS

• In 1992, the Philippine Navy rehabilitated the lighthouse and reported it to the International Maritime Organization for publication in the List of Lights. As of 2009, the military-maintained lighthouse is non-operational.

PHILIPPINE CLAIMS

• Several official Philippine maps published by Spain and United States in 18th and 20th centuries show Scarborough Shoal as Philippine territory. The 18th-century map "Carta hydrographica y chorographic ade las Islas Filipinas" (1734) shows the Scarborough Shoal then was named as Panacot Shoal. The map also shows the shape of the shoal as consistent with the current maps available as today.

PHILIPPINE CLAIMS

• During the 1900s, Mapa General, Islas Filipinas, Observatorio de Manila , and US Coast and Geodetic Survey Map include the Scarborough Shoal named as "Baju De Masinloc." In 1792, another map drawn by the Malaspina expedition and published in 1808 in Madrid, Spain also showed Bajo de Masinloc as part of Philippine territory. The map showed the route of the Malaspina expedition to and around the shoal.

PHILIPPINE CLAIMS

• It was reproduced in the Atlas of the 1939 Philippine Census, which was published in Manila a year later and predates the controversial 1947 Chinese South China Sea Claim Map that shows no Chinese name on it. Another topographic map drawn in 1820 shows the shoal, named there as "Bajo Scarburo," as a constituent part of Sambalez (Zambales province).

PHILIPPINE CLAIMS

• The Scarborough Shoal is not included within the territorial lines defined in the Treaty of Paris (1898), Treaty of Washington(1900), Convention Between the United States and Great Britain (1930), 1935 Constitution of the Philippines, Republic Act No. 3046 "Act to Define the Baselines of the Territorial Sea of the Philippines“ (1961), or the 1987 Constitution of the Philippines.

PHILIPPINE CLAIMS

• The Philippine Department of Foreign Affairs (DFA) asserts that the basis of Philippine sovereignty and jurisdiction over the rock features of Bajo de Masinloc are not premised on the cession by Spain of the Philippine archipelago to the United States under the Treaty of Paris, and argues that 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.

The Philippines dismantled the Chinese structures and planted the Philippine flag on Scarborough Shoal, also known as Bajo de Masinloc. Photo courtesy of Raissa Robles

PHILIPPINE CLAIMS

POLICY IMPERATIVES

• FIRST, the Philippines is an archipelagic state and an archipelago.

• 7,100 islands• 31,800 km. coastline• 62 of 71 provinces are coastal

POLICY IMPERATIVES

PACIFICOCEAN

CELEBESSEA

SOUTHCHINASEA

• SECOND, RP is geo-strategically located at the heart of Southeast Asia.

• Lying between 21°5’N and 4°23’N, and 116°E and 127°E• Surrounded by three prominent waters: the Pacific Ocean

on the East, the South China Sea on the West and North, and Celebes Sea on the South

• THIRD, the Philippines is at the crossroad of major international navigational routes. More than half of the world’s tankers – estimated to contain 353.42 thousand barrels of oil – pass every year through the Straits of Malacca and Singapore and Sunda and Lombok Straits, with majority continuing on to the South China Sea

POLICY IMPERATIVES

• FOURTH, the waters Southwest of the Philippines is a hotbed of geological resources and activity. There is a high potential for the area to yield oil and gas.

POLICY IMPERATIVES

Source: TNC-SEACMPACHINA

MALAYSIA

INDONESIA

TAIWAN

SOUTHCHINASEA

PACIFICOCEAN

CELEBESSEA

straits used for international navigation

PAPUANEW GUINEA

VIETNAM

• FIFTH, the Philippines is the “center of center of marine biodiversity”, having the highest in the world.

• RP hosts a greater part of the Coral Triangle, which is an ocean space as having the highest degree of biological diversity

POLICY IMPERATIVES

“Archipelagic state” did not exist in international law

Historical fact prior to the Archipelagic State Principle

BACKGROUND: PHILIPPINE PUSH FOR RECOGNITION AS ARCHIPELAGIC STATE

RP coined & pioneered the development of “archipelagic doctrine”

“The Philippines advanced the archipelago principle as early as 1956 and we have established it in our national legislation. We are therefore happy that the archipelago principle has finally been recognized and accepted as part of public international law.”

INTERNATIONAL RECOGNITION OF THE “ARCHIPELAGIC DOCTRINE”

Minister of State Arturo M. Tolentino

Head of the Philippine Delegation

3RD UNCLOS ‘82 (Montego Bay, Jamaica))

INTERNATIONAL RECOGNITION OF THE “ARCHIPELAGIC DOCTRINE”

THE PHILIPPINES IS A SIGNATORY AND PARTY TO THE 1982 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS); SIGNED 10 DECEMBER 1982 AND RATIFIED 27 FEBRUARY 1984

Former Solicitor-General Estelito Mendoza

EEZ (200 M)

Juridical Continental Shelf (200 M)

Extended Continental Shelf (Theoretical at 350 M)

Territorial Sea (12 M)

Contiguous Zone (24 M)

Baselines

Archipelagic Waters

PHILIPPINES PROJECTED MARITIME REGIMES

Basemap c/o NAMRIA

1982 UNCLOS

POTENTIAL RESOURCES UNDER UNCLOS

…marine biodiversity for pharmaceuticals…

Oil,gas & mineral resources

as source of clean and sustainable energy

Aquaculture, seaweed farming…a leading industry in

both developed & developing economies

Baselines

BASELINES LAW

Republic Act No. 3046 (Jun 1961)amended byRepublic Act No. 5446 (Sep 1968)

HARMONIZE RP BASELINES SYSTEM W/ UNCLOS

140 nm.

Baselines Law (RA 5446)

MORO GULF

Article 47 (2), Part IV, UNCLOSArchipelagic Baselines

The length of such baselines shall not exceed 100 nautical miles,

except that up to 3 per cent of the total number of baselines enclosing

any archipelago may exceed that length, up to a maximum length of

125 nautical miles.

POCKETS OF HIGH SEAS

Illustrated 3nm from coast

Pockets of high seas

Pockets of high seas

MAP OF WCPFC AREA

Baselines

EEZ (200 nm)

ARCHIPELAGIC BASELINEEnclosing Main Archipelago, Scarborough Shoal & KIG

KIG BASEPOINTS

Sabina Shoal

Iroquois Reef

Flat Island

Northeast Cay

Commodore Reef

Southwest Cay

DiscoveryGreat Reef

Fiery CrossReef

WestReef

Amboynas Cay Mariveles ReefInvestigator Shoal

Basepoints

VIETNAM

PHILIPPINESUNOCCUPIED

CHINAMALAYSIA

Occupied byForeignCountries

Flat Island

Northeast Cay

Commodore Reef

Southwest Cay

DiscoveryGreat Reef

Fiery CrossReef

WestReef

Amboynas Cay Mariveles ReefInvestigator Shoal

PD 1596

CHINA CLAIMS

CHINA CLAIMS

In 1994, the Chinese set up an amateur wireless radio transmitter on Huangyan Island (Scarborough Shoal) and claimed this as proof of its sovereignty. Photo courtesy of Raissa Robles

http://raissarobles.com/wp-content/uploads/2013/01/SCS-Huangyan-Island-or-Sca.jpg

According to an official website of China:• China is the first country to discover and name Huangyan Island, incorporate it into its territory, and exercised jurisdiction over it (china.org.cn)• Huangyan Island was first discovered and drawn into China’s map in China’s Yuan Dynasty (1271-1368 AD)• In 1279, Chinese astronomer Guo Shoujing performed a survey of the seas around China for Kublai Khan, and Huangyan Island was chosen as the point in the South China Sea

CHINA CLAIMS

• China has been developing and exploiting Huangyan island for a long time

• Huangyan island and its surrounding waters are a traditional fishing place for Chinese fishermen. Since ancient time, the Chinese fishermen have been fishing in Huangyan island and its surrounding waters

CHINA CLAIMS

• In January 1935, the Map Verification Committee of China, which consisted of representatives from Ministry of Interior Affairs, Ministry of Foreign Affairs, Ministry of Education and Navy, declared sovereignty over 132 islands, reefs and shoals

• Huangyan Island, which was called ‘Scarborough Shoal’ at the time, was included as a part of Zhongsha Islands and included in the territory of China

CHINA CLAIMS

• In October 1947, Chinese government announced the new name list of South China Sea islands and Scarborough Shoal was renamed as Minzhu (or Democratic) Reef

• In 1983, the China Board on Geographic Names... decided to use Huangyan Island as the standard name of the island and Minzhu (or Democratic) Reef as alternative name

CHINA CLAIMS

• All the official maps published by Chinese governments of different periods marked Huangyan Island as Chinese territory

• Huangyan Island has been consistently under administration of China’s Guangdong Province first and Hainan Province later

• China has noted that the Huangyan Island is Chinese territory in all its declarations concerning the sovereignty of the South China Sea islands

• All of these happened long before UNCLOS came into force in 1994

CHINA CLAIMS

• The Chinese government had sent teams of scientists to investigate Huangyan Island over the years

• October 1977 & June 1978: researchers from the South China Sea Institute of Oceanology under the Chinese Academy of Sciences went there to do research

• April 1985: the South China Sea branch of the State Oceanic Administration organized a comprehensive expedition to Huangyan Island

CHINA CLAIMS

• 1994: a South China Sea scientific expedition went there to investigate it and built a one-meter-high concrete monument on the island

• 1994, 1995 and 1997: China gave permission to radio amateurs to go to the island and broadcast from there

CHINA CLAIMS

China’s Position on South China Sea

Foreign Ministry spokesman, February 2012:•“Neither China nor any other country lays claim to the entire South China Sea”Letter to UN Secretary-General from China’s UN Mission, May 2009:•“China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map)”

CHINA CLAIMS

China’s Map with Nine-Dash-Line CHINA CLAIMS

China’s Criticism of PH Claim

• The Philippine territory was determined by a series of international treaties, and none of these stated that Huangyan island belongs to the Philippines

• The Treaty of Paris (1898), the Treaty of Washington (1900) and the US – UK Convention (1930) clearly defined that 118 degrees East longitude is the western limit of Philippine territory. The Huangyan Island is outside this limit

CHINA CLAIMS


• The 1935 Philippine Constitution, the US-Philippines Treaty of General Relations and the Mutual Defense Treaty, the 1961 Republic Act No. 3046 setting the baselines of the Philippine territorial sea and the 1968 Republic Act No. 5446 amending the territorial sea baselines have reaffirmed the legal effects of the three treaties and explicitly recognized that the Philippine territory does not include the Huangyan Island

• The above facts fully prove that Huangyan Island is outside the scope of Philippine territory and does not belong to the Philippines.

CHINA CLAIMS

China’s Criticism of PH Claim • “Until 1997, the Philippines has never raised an

objection about China’s jurisdiction and development of Huangyan Island, and even repeatedly stated that it was outside Philippine territory”

• “The maps published by the Philippines in 1981 and 1984 also did not incorporate Huangyan Island” (including the latest official map, according to Vice Foreign Minister Fu Ying)

• “The Philippine Ambassador to Germany indicated clearly in his letter to a Germany radio amateur on February 5, 1990 that the Huangyan Island was not within the Philippine territorial sovereignty according to the National Mapping and Resource Information Authority of the Philippines”

CHINA CLAIMS


• “The documents sent by the National Mapping and Resource Information Authority of the Philippines to the American Amateur Radio Association on October 18, 1994 and November 18, 1994 have also confirmed respectively that the Philippine territorial limits and sovereignty were stipulated in Article 3 of the 1898 Treaty of Paris and Huangyan Island was located outside the boundary of Philippine territory”

CHINA CLAIMS

China’s Criticism of PH Claim• “It is the basic principle of the international

maritime law that land dominates the sea. UNCLOS allows coastal states to claim a 200-nautical-mile EEZ, but coastal states have no right to harm the inherent territory and sovereignty of other countries”

• “Any attempt to use UNCLOS to change the territorial sovereignty of a country is a violation of the principles of international law, including UNCLOS”

• “The maritime jurisdiction of the Philippines should not infringe upon the territorial sovereignty of China over the Huangyan Island”

CHINA CLAIMS

Weakness of China’s Position

• China’s historical claim does not necessarily constitute a “historical title” to Scarborough Shoal (also, debatable basis of historical claim)

• Even if the Treaty of Paris & other treaties did not include Scarborough Shoal as Philippine territory, it does not follow that the shoal belongs to China

• China still has to prove that it exercised “effective occupation and jurisdiction” over it during a long, continuous period of time

CHINA CLAIMS

Weakness of China’s Position

China’s claim in the 9-dash-line map

• conflicts with UNCLOS

• exceeds what is permitted under UNCLOS

• intersects and overlaps with the exclusive economic zones of the Philippines, Malaysia, Brunei, Indonesia and Vietnam

CHINA CLAIMS

Possible Solutions

• Diplomatic vs legal solution, bilateral vs multilateral solution, unilateral vs joint development

• China’s proposal: Bilateral talks, Deng Xiaoping’s idea of “shelving sovereignty and engaging in joint exploration and development,” concept on “joint fishing zone” or “joint maritime zone” (eg. Gulf of Tonkin)

CHINA CLAIMS

• First, it argues that China’s “nine-dash line” is not supported by UNCLOS, and therefore the only valid maritime claims in the South China Sea are to the territorial seas, EEZs, and continental shelves adjacent to coastlines and islands. This is the only definition of such maritime claims allowed under UNCLOS.

LEGAL ISSUES - Philippines

• Second major request is for the tribunal to rule on whether certain “islands” occupied by China are islands at all. This is critically important because under UNCLOS only features which are above water at high tide are considered islands capable of generating a 12 nautical mile territorial sea. Any features not above water at high tide are not islands, and belong to whichever country owns the continental shelf on which they sit, or to no one if they lie beyond any continental shelf. The Philippines asserts that Mischief Reef, McKennan Reef, Gavin Reef, and Subi Reef fall under this category.


• Certain high-tide features on which China has built structures are entitled to only a territorial sea, not a 200 nautical mile EEZ or continental shelf. This rests upon UNCLOS rules stating that only islands capable of supporting human habitation and/or independent economic activity generate EEZs of their own. The Philippines lists Scarborough Shoal, Johnson South Reef, Cuarteron Reef, and Fiery Cross Reef as features occupied by China that do not meet this requirement.


ARBITRAL PROCEEDINGS

Why is the Philippines bringing China to an arbitral tribunal?

- China's 9-dash line claim encompasses practically the entire West Philippine Sea (WPS). We must challenge the unlawful claim of China under their 9-dash line in order to protect our national territory and maritime domain.

Why does it have to do this now?

Having exhausted all possible initiatives, we feel the time to act is now. If we do not act now, we will be in default.


What is the basis of the legal action?

The legal action is pursuant to the President's constitutional mandate to pursue the national interest and defend the Philippine territory and maritime domain. It also pursues the policy of a rules-based approach based on international law, especially UNCLOS, in resolving the disputes in the WPS.


What can be expected from this arbitral tribunal?

We hope that the arbitral tribunal will issue an award in accordance with international law that will direct China to respect our sovereign rights and jurisdiction over our EEZ, continental shelf, contiguous zone, and territorial sea over the West Philippine Sea, and to desist from undertaking unlawful acts that violate our rights.


What is the process of arbitration?

Under Annex VII of UNCLOS, the arbitration process begins by notifying the other party to the dispute and giving a statement of facts on which the notification is based.

In accordance with this process, the Philippines through the DFA handed the Note Verbale to the Chinese Ambassador in Manila in the afternoon of 22 January 2013 notifying China that the Philippines is bringing the dispute in the WPS before an arbitral tribunal under Annex VII of UNCLOS.

The next step is to form the 5-member arbitration panel. When the panel is formed, the parties will present their documents to further explain their case.


Is the legal track the only option?

We have adopted three tracks in terms of the political, diplomatic and legal approaches. At this stage, the legal track presents the most durable option to defend the national interest and territory on the basis of international law.


Who filed the case and where?

The Philippines filed the arbitration case against China. The parties will have to agree on the place where the arbitral tribunal will hold the hearing of the case.

Under UNCLOS, Parties to a dispute have the choice on where to file the case, either in the International Court of Justice, ITLOS, arbitral tribunal and special arbitral tribunal. The Philippines chose to bring this case before the arbitral tribunal because it believes it is the appropriate body to hear the complaint of the Philippines against China.


How long will the arbitration process last?

Based on the cases so far handled by international tribunals on maritime disputes, the case would take 3-4 years.


Will the Philippines win the case?

We believe we have a very good case under international law. In any legal action, however, there are many different factors to consider. What is more important is that we are able to present our case against China and defend our national interest and maritime domain before an independent international tribunal. We expect international law to be the great equalizer.


Who are the members of the PH legal team?

Solicitor General Francis H. Jardeleza is the agent or the legal representative of the Philippines in this arbitration case. Mr. Paul Reichler of the Washington law firm Foley and Hoag is the lead counsel.


Why are the other countries not filing a case against China?

The Philippines is taking action based on its national interest and not on the actions or non-action of other countries.


What if China refuses to participate in the arbitration?

The Philippines will pursue the procedures and remedies available under Annex VII of UNCLOS to achieve the award outlined in the Statement of Claim. Annex VII of UNCLOS provides for compulsory proceedings with binding decision.


What's next for the Philippines?

The Philippines will now prepare for the formation of the 5-member arbitration panel and agree on the venue.


Does the Philippines have the support of the other branches of the government?

Yes, all the three branches of the Philippine Government support the President's decision to bring the dispute in the West Philippine Sea before the UNCLOS arbitral tribunal.


What will be the effects on Philippines-China economic relations?

As arbitration is friendly and peaceful, we hope that there will be no adverse effects on our trade with China. President Aquino and President Hu Jintao agreed that the bilateral agenda will be moved forward while contentious issues will be abstracted for separate treatment.

We are all for improving our economic relations with China but it should not be at the expense of surrendering our national sovereignty.


What will be the effects on tourism?

The Philippines and China have an incredible people-to-people engagement. We look forward to enhance it through an effective tourism program.


What will happen to our OFWs who may be affected by this action?

The Philippine Government will provide the appropriate safety net for the OFWs.


Did the US and Japan influence the decision to take this action?

No. The Philippines is taking this action independently.


What are the opinions of the different sectors in Philippine society?

While there are varied opinions on the dispute, nevertheless, all Filipinos should unite to support the President's constitutional mandate to protect Philippine territory and national interest.


Will this result into a military conflict?

China is a good friend. Arbitration is a peaceful and amicable process to settle a dispute between and among friends.


What will happen to PH-China relations?

We will continue to pursue an enhancement of our bilateral relations in all areas of cooperation.


Would this action affect ASEAN?

We are counting on ASEAN to support us in finding a peaceful and durable solution to the dispute. The Philippines must protect its own national interest in this regional forum as well as in other fora in order to enhance the respect of our international partners who support our cause.


Would discussions on the Code of Conduct (CoC) continue?

Yes, the Philippines will continue to work with ASEAN and China in crafting the Code of Conduct and implement the commitments of ASEAN Member States and China in the Declaration on the Conduct of Parties in the South China Sea (DOC).


Why can we not do joint development with China?

Joint development, following the Chinese model, is a violation of the Philippine Constitution. Joint development should be in accordance with Philippine law.


How much will this cost the Filipino people?

One cannot put a price in the concerted effort of the Filipino people and government in defending our patrimony, territory, national interest and national honor.


Why should the Filipinos support this action?

If someone forces himself into your house and tries to unlawfully take away what belongs to you, should you not take action against the intruder? Our action is in defense of our national territory and maritime domain.


How can all Filipinos help in promoting a positive result of this legal initiative?

All Filipinos should stand behind the President to defend what is ours in accordance with the Philippine Constitution. We should all firmly demonstrate our patriotism. We should all stand united as one before the whole world to manifest the President's leadership on this issue.


RAMIFICATION OF

SCARBOROUGH SHOAL

ramification of scarborough shoal

Documents

philippine government

philippine flag

philippine names

philippine sailors

philippine archipelago

background standoff

panatag shoal

south china sea island