The South China Sea is the universal, official name of the waters
west of the Philippines, which the latter and the U.S. called it
as, West Philippine Sea—a trying hard ‘name-calling’
so provocative as it gestures outright, exclusive ownership.
▲ The Philippines’ Assertions
⇒ According to the Department of Foreign Affairs, the Philippine sovereignty and jurisdiction over the Scarborough Shoal is neither premised under the Treaty of Paris; nor on proximity but on certain principles of public international law.
The Philippines cited the Palmas Island case in which the Netherlands has sovereignty over the island on the basis of the effective exercise of jurisdiction. In relation to this, the Philippines claimed the exercise of both effective occupation and effective jurisdiction over the Scarborough Shoal since its independence.
⇒ The Philippine sovereignty over the Scarborough Shoal is based on sovereign rights under UNCLOS or United Nations Convention on the Law of the Sea.
China has sovereignty over Scarborough Shoal on the basis of historic claim and constant claim or assertion of sovereignty over the years and counting. Not only that, it can also be pointed out that this issue to be settled in accordance with the mechanics of UNCLOS provisions is totally unwise, incompetent, and I should add, self-serving to one party and outright adversarial to the other, especially to China.
Furthermore, when the Constitution of a sovereign state is in trouble with the international law, the former prevails. I believe that even in disputes, such as territorial conflict, this concept remains incontestable and undebatable. Besides, the claimant parties (China and the Philippines in particular) have expressed reservations upon their ratification of UNCLOS, declaring that such signing shall not in any manner affect the sovereign rights of their respective states. Then, who is fooling us around?
▲ Weak Points of the Philippines’ Assertions
Firstly, the Philippines should not be too shy to use the Treaty of Paris as the basis of a territorial claim. Why? For all we know, the Treaty of Paris has long been internationally recognized so long before the birth of UNCLOS.
Unfortunately, the 1987 Philippine Constitution (including those prior to this constitution, except the 1935 Philippine Constitution) has not become too effective in laying out its territorial waters even until today when the former President Gloria Macapagal-Arroyo enacted the Philippine Baselines Law or the RA 9522 in 2009. Rather, this enacted law classified the Spratlys and Scarborough Shoal as a regime of islands.
For the Philippines to classify Scarborough Shoal as a regime of islands, is this ‘implying’ that the Philippines has either none at all or so doubtful to exercise full sovereign rights over Scarborough Shoal, even if it addresses likewise an exercise of sovereignty and jurisdiction over the Shoal? Yes, it is. Then, it deprives the Philippines to redeem the exclusive economic zone or EEZ and continental shelf when Article 121 (Regime of Islands) of UNCLOS is defined strictly.
Consequently, the Philippines had lost its sovereignty and jurisdiction over the Scarborough Shoal the moment the Philippine government classified it as a regime of islands as it was so in the enacted Philippine Baseline Law in 2009.
From the standpoint of a sovereign state as being presumably guilty of acquiescence amid the constant claim of China of its jurisdiction over the Scarborough Shoal for over the years and the 1992 Law on the Territorial Sea and the Contiguous Zone that reaffirmed China’s claim way back in 1947, it can be deduced that the Philippines either emphatically left that issue to UNCLOS, or impliedly subscribed to China’s long-standing claim over the Scarborough Shoal.
Furthermore, over the years before 2009, the conduct of the Philippines with regard to Scarborough Shoal has revealed a humble admission, implied recognition, and outright acquiescence to the constant claim of China over the islands in the South China Sea, including the Scarborough Shoal. Therefore, RA 9522 in 2009 is weak in asserting the Philippine claim of jurisdiction and sovereignty over Scarborough Shoal, not to mention categorizing the Shoal as a regime of islands.
Moreover, UNCLOS provision on Regime of Islands would simply become moot and academic because China over and over the years and counting has already been claiming sovereignty and jurisdiction over Scarborough Shoal very long before UNCLOS ratification and these early years of an active claim of the Philippines happened. Thus, China’s reservations are absolutely binding and legitimate.
Secondly, the Philippines should not be too assuming, too confident to claim effective occupation and jurisdiction over Scarborough Shoal. Moreover, the Philippines should not rely only on the island of Palmas case since under the international law, it can not serve as a guaranty for the Philippines to expect the same result from a related problem by invoking the principle of effectiveness as far as sovereignty and/or jurisdiction over the disputed territory are concerned.
Scarborough Shoal, including the rest of islands in the South China Sea, has different determining factors. To be accurate, it has intertwining, complex understanding to decide jurisdiction over it. However, one thing is very clear not only to the Filipinos but to the international arena that China has been exercising its constant claim over the disputed territory so many, many years back.
As far as we hardly know, the Philippines should be guided that China over the years and counting has been exercising effective occupation and effective jurisdiction over the disputed islands in the South China Sea.
Thirdly, the Philippines asserted that its acquiescence must be affirmative.
This is a too weak of a defense. Where in the hell you could consider overdue acquiescence as positive or active in claiming a jurisdiction when the other party has been constantly asserting the same claim?
Overdue silence cannot be equated to active, affirmative claim. Should an international law consider it affirmative, there is a different story we are very much sure of.
For over the years when China repeatedly, constantly claimed sovereignty and jurisdiction over the Scarborough Shoal, the world never heard of the Philippines protesting China’s claim not until these early years. Is this the way we must consider it affirmative?
I believe that international communities have observed China’s strong claim over Scarborough Shoal for years. In fact, the 1992 Declaration affirmed China’s ardent claim in as early as 1947 and preserved their jurisdiction over it as early as the Yuan Dynasty in 1279. Such a historic milestone!
Finally, the Philippines asserted to bring up the issue to the international tribunal in accordance with UNCLOS provisions.
This is self-serving as I have said in the preceding discussion. Because before the claimant-disputing parties ratified UNCLOS, they have already their Constitutions and laws on a territorial basis and both have expressed reservations. Then, what’s again the point? Ah! There’s a point, anyway; it would be an amicable settlement that would compromise each sovereign rights.
▲ Some Supplemental Weak Points of the Philippine Claim
Firstly, the surfaced ancient maps in as early as 1598 do not correlate to the Philippine claim at that period as official territorial breadth.
Rather, those ancient maps were only be considered as documentary evidence of ancient expeditions and geographical representation of explorations and routes. In fact, those ancient maps, if and only if they will be used as territorial evidence, they can be tantamount to an affront to the Treaty of Paris, which clearly does not include Scarborough Shoal in the Philippine territory.
I would like to stress that the Philippines cannot ignore the efficacy and the legality of the Treaty of Paris, including the 1987 Philippine Constitution on the territorial emphasis that never clearly addressed the Scarborough Shoal as part of its territorial breadth.
Moreover, the enacted 2009 Baseline law never clearly emphasized a legitimate claim of sovereignty over the Scarborough Shoal either; rather it classified as a regime of islands—very suggestive that the Philippines recognized its illegitimate claim of sovereignty and jurisdiction over those islands being classified as that.
Secondly, the 1916 Philippine Supreme Court decision pertaining to the Scarborough tragedy is with all due respect can not be construed as a clear manifestation that the Philippines has long been exercising jurisdiction over the Scarborough Shoal.
There’s a wide margin of difference between a constant claim of a historical effective exercise of jurisdiction and just a claim of a historical exercise of jurisdiction.
According to raisarobles.com, Dr. Jay Batongbacal, a University of the Philippines law professor stated:
The lawsuit decided by the Philippines’ top court in 1916 – led by Filipino Chief Justice Cayetano Arellano – is clear evidence that we were exercising jurisdiction over the shoal and incidents on it during the American colonial period in the Philippines.
Dr. Jay Batongbacal, according to the same blog, added:
This case is proof we are the ones responsible when it comes to shipwrecks on Scarborough.
I couldn’t stop myself from commenting on this especially that I always looked up Dr. Batongbacal’s insights on international maritime law, but not definitely on this.
Shipwreck incident happened during the American colonial period in the Philippines. Treaty of Paris exists. What the treaty does not say so about the Philippine territorial waters, this mere incident cannot supplant instant jurisdiction of a colony over what the treaty has only specified.
Moreover, when the incident had happened during the American colonial period in the Philippines, why the Philippines had to claim and not America instead? Seriously, it was because of proximity? Proximity does not guarantee a jurisdiction over a proximate territory.
If Dr. Batongbacal is correct in his opinion, then the Philippine claim of jurisdiction over Scarborough jeopardizes the legality of the Treaty of Paris on the Philippine territorial specification. How was it? Don’t tell me it’s out of the context anymore.
The shipwreck incident happened proximate to the Philippine territory. It has become our standard of actions to rescue and take moves in response to such eventuality. Since the Philippines is the nearest island from the shipwreck incident, it is just fitting to be the first instance to investigate the incident. It must also be noted and considered that during that period international and domestic laws have not yet been polished. So, implying the event as a jurisdictional claim is too weak to consider it effective.
The proximity of the incident that happened calls on the immediate position of the Philippines to respond to the incident. However, this proximity and response cannot be construed laxly as a territorial jurisdiction just because the responding country has investigated and decided on the case. Call this as a call for time or chance.
Still, there was this thing called Treaty of Paris that specifically delineated the Philippine territory. The Philippines cannot deny it bluntly or just set it aside.
I believe that to end China-Philippines dispute, self-restraint and a bilateral agreement between the conflicting sovereign states would be rightful and equitable to push that through.
Cooperation and respect for history in every sovereign state can make a difference toward strengthening economic and political relations with all the neighboring countries.
The Philippines has rich and a sacrosanct history in restoring democracy. For China and other countries to deny such fact, Filipinos will no longer have confidence to face their identity and national pride. The same will hold true to China when her neighbors challenged the veracity and integrity of her history.
Nobody shall be deprived of a historical claim. The overdue cold silence of the Philippines pertaining to the disputed shoal does only show Philippine recognition of China’s fervent claim over the Scarborough Shoal exercising an indisputable effective jurisdiction. ▲