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Speech: THE RULE OF LAW IN THE WEST PHILIPPINE

SEA DISPUTE
(Publication Version)
Speech delivered before the Philippine Bar
Association
29 August 2013
Justice Antonio T. Carpio
In the 17th century, England, Spain and Portugal, the
naval superpowers of the day, claimed ownership of the
oceans and seas they discovered, and enforced their
claims through the barrel of the naval cannon. In 1609,
Hugo Grotius, the father of international law, argued in
his classic Mare Liberum (The Free Sea) that the oceans
and seas belonged to all mankind and no nation could
claim them as its own. After over a century of battle
between those who insisted on ownership of the oceans
and seas and those who fought for freedom of the
oceans and seas for all mankind, Grotius idea
eventually prevailed and became part of international
law. It also laid the foundation for the law of the sea.
In this the 21st century, China, Asias rising regional
naval power, is claiming ownership by historical right to
almost 90% of the South China Sea. Chinas claim,
represented by its 9-dashed line map, echoes the 17th
century maritime claims of the naval superpowers of
that era. China is enforcing its claim through its rapidly
growing naval fleet. If left to stand, Chinas claim will
bring the world back to the turbulent maritime era 400
years ago, when nations claimed the oceans and seas
and maritime claims were settled through the naval
cannon, not through the Rule of Law.
What is the dispute in the West Philippine Sea?
China claims indisputable sovereignty over all the
waters, islands, reefs, rocks, seabed, minerals, and
living and non-living resources falling within its 9-
dashed line claim in the South China Sea. The 9-
dashed line area comprises almost 90% of the total area
of the South China Sea. Chinas 9-dashed line claim
encroaches on 80% of the Philippines 200-nm exclusive
economic zone (EEZ) and 100% of its 150-nm extended
continental self (ECS) facing the South China Sea
what the Philippines calls the West Philippines Sea.
Chinas 9-dashed line claim has similar effects on the
EEZs and ECSs of Vietnam, Malaysia, Brunei and
Indonesia facing the South China Sea. The countries
most adversely affected by Chinas 9-dashed line claim,
in terms of the size of the area encroached by the 9-
dashed line claim, are the Philippines, Vietnam,
Malaysia, Brunei and Indonesia, in that order.
Is there an international law that governs the
resolution of the West Philippine Sea dispute?
The 1982 United Nations Convention on the Law of the
Sea, or UNCLOS, which entered into force in 1994,
governs the conflicting maritime claims in the South
China Sea. All the claimant states in the South China
Sea dispute, including the Philippines and China, have
ratified UNCLOS. UNCLOS is the Constitution for the
worlds oceans and seas. UNCLOS codified the then
existing customary international law of the sea, created
novel entitlements in favor of coastal and landlocked
states, and adopted a compulsory dispute settlement
mechanism to insure that there is a final authoritative
body to interpret and apply its provisions.
UNCLOS has been ratified by 165 states, comprising an
overwhelming majority of the members of the United
Nations. For this reason, even the novel maritime
entitlements under UNCLOS in favor of coastal and
land-locked states, which maritime entitlements have
been consistently affirmed by international tribunals
since 1994, now form part of customary international
law. Even non-signatory states, as well as signatory
states that later withdraw from UNCLOS, are bound by
these maritime entitlements.
UNCLOS governs only maritime entitlements, maritime
space and maritime disputes. The maritime
entitlements of states the territorial sea, EEZ and ECS
and their resources emanate and are drawn only from
baselines on continental land or islands. UNCLOS
provides for a compulsory dispute settlement
mechanism, subject to certain types of disputes that
states are allowed to exclude from compulsory
arbitration. All states that ratified UNCLOS bound
themselves in advance to this compulsory dispute
settlement mechanism. The Philippines and China,
having ratified UNCLOS, are bound by this compulsory
dispute settlement mechanism.
UNCLOS does not govern territorial sovereignty
disputes over land or land features in the oceans and
seas. Territorial sovereignty disputes over land or land
features that is, islands, reefs and rocks above water
at high tide are governed by the rules and principles
of general international law. An international tribunal
can acquire jurisdiction over territorial sovereignty
disputes only with the consent of the states that are
parties to the particular dispute, in the absence of a
treaty binding them in advance to the jurisdiction of
such tribunal. There is no such treaty between the
Philippines and China.
In short, any maritime dispute between the Philippines
and China is subject to compulsory arbitration under
UNCLOS, except for the disputes that China has
excluded from compulsory arbitration in accordance
with UNCLOS. In contrast, the territorial sovereignty
dispute between the Philippines and China over land
and land features is not subject to compulsory
arbitration.
What is the right or entitlement of the Philippines
under international law that is being violated by
China?
Under UNCLOS, every coastal state is entitled as a
matter of international law to a 200-nm EEZ, plus an
additional 150-nm ECS where applicable, drawn from
baselines on continental land or islands. In lieu of this
additional 150-nm ECS, a coastal state may adopt an
ECS of up to 100-nm seaward from the 2,500 meter
isobath. This legal maritime entitlement is one of the
most important reasons why developing coastal states
approved UNCLOS. Without this important legal
maritime entitlement there might have been no
UNCLOS. In case of overlapping EEZs or ECSs, the
opposing or adjacent coastal states shall negotiate in
good faith an equitable maritime boundary.
Also, land-locked states joined UNCLOS for two
reasons: first, the area of the sea beyond the EEZ of a
coastal state, called the high seas, is open to fishing for
all states, whether coastal or land-locked; and second,
the seabed and its minerals beyond the ECS of a
coastal state is declared the common heritage of
mankind belonging to all states, whether coastal or
land-locked.
Chinas 9-dashed line claim negates, and thus violates,
the Philippines legal entitlement under UNCLOS to an
EEZ and ECS. Chinas 9-dashed line claim also
negates, and thus violates, the right of all states on this
planet, including the Philippines, to fish in the high
seas or the area beyond the EEZ of a coastal state.
Chinas 9-dashed line claim furthermore negates, and
thus violates, the right of all states on this planet,

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including the Philippines, to the seabed and its mineral
resources beyond the ECS of a coastal state. Finally,
Chinas claim of indisputable sovereignty to areas of
the South China Sea beyond the EEZs of coastal states
violates the prohibition under UNCLOS against states
subjecting the high seas to their sovereignty.
What is the basis of Chinas 9-dashed line claim?
China anchors its 9-dashed line claim on so-called
historical rights. However, China admits that its 9-
dashed line claim was first included in an official
Chinese map only in 1947 during the Kuomintang
Government. In 1998, China enacted its Exclusive
Economic Zone and Continental Shelf Law to affirm its
sovereign rights and jurisdiction over its EEZ and ECS
under UNCLOS. A provision in this 1998 law states,
this Act shall not affect the historical rights of the
Peoples Republic of China. This 1998 law is the first
official reference in a Chinese law to Chinas historical
rights to maritime areas outside its EEZ and ECS.
However, the rights of a state under international law
cannot be enlarged by its domestic legislation, but only
by customary international law or by a convention like
UNCLOS.
Chinas 9-dashed line claim was originally represented
by 11 dashes in the 1947 Chinese map, then reduced
unilaterally in 1950 to 9 dashes without explanation
after the Communists ousted the Kuomintang from the
mainland. In January this year China released a new
official map adding a 10th dash on the eastern side of
Taiwan. Chinas claim was ambiguous from the start as
China failed to explain its scope until January this
year. Moreover, until now China has never revealed the
exact coordinates of its 9 or 10-dashed line claim, and
neither has China explained the basis under
international law for its claim.
China formally announced to the international
community its claim only in 2009 when it submitted to
the United Nations a map depicting its 9-dashed line
claim. This map, showing no coordinates of the 9
dashes, was appended to a note verbale China lodged to
protest Vietnam and Malaysias joint submission of
their ECSs. With this map, China claimed indisputable
sovereignty over the islands and adjacent waters
within the enclosed area, as well as sovereign right and
jurisdiction over the relevant waters, seabed and
subsoil within the enclosed area. China did not explain
the meaning of the words adjacent waters and
relevant waters, which are not used in UNCLOS.
China thus failed to clarify the ambiguity of its 9-
dashed line claim. Chinas submission of its 9-dashed
line claim to the United Nations was, of course,
promptly protested by other claimant states.
China has always been ambiguous about the scope of
its 9-dashed line claim whether it is claiming only the
islands within the 9-dashed line area, or whether it is
also claiming all the waters and resources within the 9-
dashed line area beyond the applicable maritime zones.
Even Chinese scholars on the law of the sea are divided
as to whether the 9-dashed line claim includes all the
waters within the area, comprising almost 90% of the
South China Sea. Chinas incumbent judge in the
International Tribunal for the Law of the Sea, Zhiguo
Gao, wrote in 1994 that the 9 dashes merely identify
the islands owned by China within the enclosed area
and do not represent a claim to all the waters and
resources within the enclosed area.
In January this year China appears to have clarified at
least the scope of its claim by issuing a new official map
describing 10 dashes on the map as its national
boundaries. By using the term national boundaries,
China is apparently claiming everything within these
boundaries as part of its national territory. If so, China
has clarified only this year that it is claiming all the
waters, islands, reefs, rocks, living and non-living
resources, the seabed and the minerals found within
the previous 9, now 10-dashed line area. This is
consistent with the aggressive actions of Chinese
surveillance ships in harassing survey vessels of
Vietnam and the Philippines exploring for oil and gas in
their own EEZs that overlap the waters enclosed by the
9-dashed lines, even if the waters are outside the
maritime zones of any disputed island and outside the
EEZ or ECS of China.
Still, China has not explained the basis under
international law of its historical rights to the 9-
dashed line claim. China has not released an official
paper or document explaining such historical rights,
and the justification for such historical rights under
international law. China has refused to defend its 9-
dashed line claim before an international tribunal on
the law of the sea. However, on its face alone the 9-
dashed line claim has absolutely no basis under
international law.
First, UNCLOS extinguished all historical rights of other
states within the 200-nm EEZ of the adjacent coastal
state. That is why this 200-nm zone is called exclusive
no state other than the adjacent coastal state can
exploit economically its resources. Fishing rights that
other states historically enjoyed within the EEZ of the
adjacent coastal state automatically terminated upon
the effectivity of UNCLOS. Moreover, UNCLOS prohibits
states from making any reservation or exception to
UNCLOS unless expressly allowed by UNCLOS. Any
reservation of claims to historical rights over the EEZ
or ECS of another coastal state is prohibited because
UNCLOS does not expressly allow a state to claim
historical rights to the EEZ or ECS of another state. In
short, UNCLOS does not recognize historical rights as
basis for claiming the EEZs or ECSs of other states.
The few cases where the waters beyond the territorial
sea were still treated as internal waters because of
historical rights all happened before the advent of
UNCLOS, when the breadth of the territorial sea was
still three miles. These cases involved deeply indented
bays, like the Chesapeake Bay bordering Maryland and
Virginia in the United States, or deeply indented gulfs
like the Gulf of Fonseca in Central America bordering
Honduras, Nicaragua, and El Salvador. These bays and
gulfs are adjacent to the coast and have long been
accepted by other states as internal waters. With
UNCLOS, the territorial sea has been extended to 12-
nm, and a 200-nm EEZ has been granted to coastal
states, removing the need for a coastal state to invoke
historical rights to exclude other states from its deeply
indented bays or gulfs. In none of these few cases has
historical rights been invoked to claim a non-adjacent
area beyond 200-nm from the coast, or to claim an
entire or nearly entire sea bordering several states.
Second, under UNCLOS the term historic bays refers
to internal waters, and the term historic titles refers to
territorial seas. A state can claim historical rights over
waters only as part of its internal waters or territorial
sea. There is no freedom of navigation and no freedom
of over-flight in internal waters or territorial sea. There
is a right of innocent passage for ships in the territorial
sea.
The South China Sea, beyond the 12-nm territorial sea
of coastal states, has never been considered as the
internal waters or territorial sea of any state. Since time
immemorial, ships of all nations have exercised freedom
of navigation in the South China Sea. Likewise, since
the time airplanes flew across the seas, aircraft of all
nations have exercised freedom of over-flight over the
South China Sea. If the South China were the internal
waters or territorial sea of China, then no state could

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have exercised freedom of navigation and freedom of
over-flight over the South China Sea. Indeed, China has
stated that there is freedom of navigation and freedom
of over-flight in the South China Sea, an admission that
the South China Sea does not constitute its internal
waters or territorial sea.
Chinas 1992 Law on Territorial Sea and Contiguous
Zone declares a 12-nm territorial sea measured from its
baselines. Since Chinas own law limits its territorial
sea to 12-nm from its baselines, China cannot claim the
waters within the 9-dashed line map as its territorial
sea. The waters within the 9-dashed line claim cannot
also be considered internal waters of any state because
they are in the open sea bordering seven coastal states.
The South China Sea falls under the UNCLOS definition
of a semi-enclosed sea because it consists entirely or
primarily of the territorial seas and EEZs of two or more
States.
Since the time that Grotius idea of the free sea became
part of international law, no nation could appropriate or
claim indisputable sovereignty to any part of the
oceans and seas beyond its territorial sea or beyond
what other states recognize as its internal waters. This
is reflected in UNCLOS, which only grants a coastal
state specified sovereign rights and jurisdiction over its
EEZ and ECS, and expressly prohibits any coastal state
from subjecting the high seas to its sovereignty.
Thus, the waters enclosed by Chinas 9-dashed line
claim are neither internal waters nor territorial sea of
China. The waters cannot also form part of Chinas EEZ
or ECS because they are not drawn from Chinas
baselines and are beyond the limits of Chinas EEZ and
ECS as drawn from Chinas baselines. In short, Chinas
claim to the waters enclosed by the 9-dashed line claim
does not fall under any of the maritime zones
recognized by international law or UNCLOS namely,
internal waters, territorial sea, EEZ, and ECS that
could be claimed by a coastal state. Only China seems
to know under what maritime zone the 9-dashed line
waters fall, but China is not telling the world except to
claim indisputable sovereignty over such waters by
historical rights.
Third, under the general principles and rules of
international law, a claim of historical rights to
internal waters or territorial sea must satisfy four
conditions. One, the state must formally announce to
the international community such claim to internal
waters or territorial sea, clearly specifying the nature
and scope of such claim. Two, the state must exercise
effective authority, that is, sovereignty, over the waters
it claims as its own internal waters or territorial sea.
Three, such exercise of effective authority must be
continuous over a substantial period of time. Four,
other states must recognize, tolerate or acquiesce in to
the exercise of such authority.
China fails to comply with any of these four conditions.
China officially notified the world of its 9-dashed line
claim only in 2009. Not a single country in the world
recognizes, respects, tolerates or acquiesces in to
Chinas 9-dashed line claim. China has never effectively
enforced its 9-dashed line claim from 1947 to 1994
when UNCLOS took effect, and even after 1994 up to
the present. Thus, under the general principles and
rules of international law, China cannot claim
historical rights that pre-dated UNCLOS. Even
assuming, for the sake of argument, that China has
such historical rights, the entry into force of UNCLOS
in 1994 extinguished such rights. Under UNCLOS, a
state cannot claim any historical right to the EEZ or
ECS of another state.
In the 2002 Asean-China Declaration on the Conduct of
Parties in the South China Sea, China agreed that all
claimant states shall resolve their disputes in
accordance with universally recognized principles of
international law, including the 1982 UN Convention on
the Law of the Sea. China did not state that historical
rights, or any other circumstance, should be a factor in
resolving the disputes. China thus agreed that only
international law, in particular UNCLOS, should govern
the resolution of the disputes in the South China Sea.
Clearly, there is nothing historical or right about
Chinas 9-dashed line claim because it is fairly recent,
without fixed coordinates, ambiguous even to its own
legal scholars, inconsistent with its own national law,
contrary to the general principles and rules of
international law, contrary to UNCLOS, contrary to the
Asean-China DOC, and still evolving as recently as this
year. Not a single state in the world recognizes,
tolerates or acquiesces in to Chinas 9-dashed line
claim. By asserting their own claims to parts of the
waters enclosed by Chinas 9-dashed line claim, the
other claimant states actually oppose and contest
Chinas 9-dashed line claim.
What is Chinas offer to jointly develop the disputed
areas?
China has been dangling to the Philippines and other
claimant states its offer to jointly develop the disputed
areas while shelving the sovereignty issues. This joint
development offer originated from Deng Xiaopings
three-part guideline: sovereignty belongs to China,
shelve the disputes, and pursue joint development.
There are at least three problems to this offer.
First, China wants to jointly develop the EEZ of the
Philippines but refuses to jointly develop Chinas own
EEZ. In effect, China is saying to the Philippines, what
is exclusively your economic zone belongs to both of us,
but what is exclusively our economic zone is ours alone,
and if you do not agree, our warships will be there to
prevent you from developing your exclusive economic
zone.
Second, as explained by Chinese officials and scholars,
Chinas offer of joint development is subject to the
precondition that participating coastal states must first
expressly recognize Chinas indisputable sovereignty
under its 9-dashed line claim. This precondition
effectively means that once a state agrees to joint
development, it must not only vacate any island it
possesses in the Spratlys and turn over the same to
China, it must also renounce any maritime claim within
the 9-dashed line area. This precondition demanded by
China is obviously inconsistent with its offer to shelve
the sovereignty issue.
Third, if the Philippines agrees to Chinas joint
development offer, the Philippines will in effect give up
its exclusive sovereign right and jurisdiction to exploit
all the living and non-living resources in its own EEZ.
The Philippines will also give up its exclusive right to
exploit the mineral resources in its own ECS. The
bottom line is that Chinas joint development offer will
negate the maritime entitlements of the Philippines
under UNCLOS. This is constitutionally impermissible
because our 1987 Constitution mandates, The State
shall protect the nations marine wealth in its
archipelagic waters, territorial sea and exclusive
economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.
Naturally, not a single claimant state has agreed to
Chinas joint development offer. Chinas response to the
negative reaction of other claimant states to its joint
development offer is to harass the ships of other
claimant states exploring for oil and gas within their
own EEZs. In May 2011, Vietnam protested that
Chinese surveillance vessels cut off the cables of a

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Vietnamese ship surveying within Vietnams own EEZ.
In December 2012, the Vietnamese again protested
another cable-cutting act committed by two Chinese
vessels on a Vietnamese ship surveying within
Vietnams EEZ. In March 2011, the Philippines also
protested that Chinese surveillance vessels menacingly
circled a Philippine-commissioned ship surveying in the
Reed Bank, which is within the Philippines EEZ.
These harassment tactics by the Chinese have
prevented Vietnam and the Philippines from exploiting
the resources within their own EEZs, an exclusive right
guaranteed to them under UNCLOS. These harassment
tactics only confirm that in practice China is claiming
all the waters and resources within its 9-dashed line
map, even if the waters and resources fall within the
EEZ of other coastal states that have no overlapping
EEZs with China.
The only joint development that is feasible in the
Spratlys is for all claimant states to respect each others
EEZs as guaranteed by UNCLOS, and to jointly develop
the disputed areas beyond these EEZs. In the absence
of overlapping EEZs in the Spratlys, the EEZ of a
coastal state can never be a disputed area because
UNCLOS, to which all claimant states in the Spratlys
are parties, guarantees such EEZ to every coastal state.
Beyond the EEZs, the extended continental shelves of
claimant states in the Spratlys overlap and can be
considered disputed areas, and thus open to joint
development. This kind of joint development, with no
preconditions, is friendly, fair, practical and durable
because it is in accordance with UNCLOS. There is no
bullying in this kind of joint development, and no state
illegally appropriates the EEZ of another state.
Why did the Philippines file an arbitration case
against China?
Following the tense standoff in April and May 2012
between Chinese and Philippines vessels in
Scarborough Shoal, the Philippines withdrew in June
2012 its vessels from Scarborough Shoal on the
understanding of a mutual withdrawal of vessels by
both China and the Philippines. The Chinese, however,
reneged on their commitment and refused to withdraw
their vessels. Then in November 2012, China informed
the Philippines that the Chinese surveillance vessels
would remain permanently stationed in Scarborough
Shoal. China was now in permanent occupation of
Scarborough Shoal.
Scarborough Shoal is a submerged reef except for six
small rocks that protrude not more than three meters
above water at high tide. The width of the largest rock
above water at high tide is only a few meters. The
Philippines built a lighthouse on one of the rocks in
1965, and another lighthouse in 1991. From the 1960s
to the 1980s Scarborough Shoal was a bombing range
of American and Philippine Air force planes practicing
bombing runs. Prior to such practice bombings,
American and Philippine authorities would give
worldwide notices to mariners to avoid Scarborough
Shoal. No protest was ever heard from China.
Scarborough Shoal appeared in the first map of the
Philippines issued under the American regime in 1899.
Earlier during the Spanish regime, Scarborough Shoal,
at that time called Panacot, appeared in several
Spanish maps of the Philippines starting at least in the
1734 Murillo map. While Scarborough Shoal was
outside the lines drawn in the 1898 Treaty of Paris,
Spain and the United States two years later entered
into the 1900 Treaty of Washington clarifying that
islands to which Spain had title or claim of title were
also ceded to the United States even though outside the
lines drawn in the Treaty of Paris. Thus, Spain ceded
Scarborough Shoal to the United States under the 1900
Treaty of Washington. Under the 1935 Constitution, the
territories ceded by Spain to the United States under
the Treaty of Paris and the Treaty of Washington form
part of the Philippine national territory. Under the 2009
amendment to the Philippine Baselines Law,
Scarborough Shoal is declared as a Regime of Islands
for purposes of determining its baselines.
The Philippines had five options in responding to the
Chinese occupation of Scarborough Shoal. First was to
send naval vessels and marines to retake Scarborough
Shoal. This was not feasible because of the superior
Chinese naval forces. Second was to file a diplomatic
protest with China. This was useless because China
would simply ignore the protest as it ignored the
protest of the Philippines after China seized Mischief
Reef 17 years earlier in 1995. Third was to ask Asean to
lobby China to withdraw from Scarborough Shoal. This
was not realistic because some Asean countries are
hesitant to offend China. Besides, Asean countries do
not take sides on territorial disputes. Fourth was to
take the matter to the United Nations Security Council.
This was also futile since China has a veto power in the
Security Council. The fifth and only viable option was to
bring the matter to an international tribunal for
arbitration, where the playing field would be level and
military power would not count, but only the rule of law
would govern. Incidentally, the Philippines could also
not invoke the Phil-U.S. Mutual Defense Treaty since
the U.S. has made it clear that the islands, reefs and
rocks in the South China Sea are outside the scope of
the treaty.
With Chinas occupation of Scarborough Shoal, the
Philippines had no other recourse but to go to an Annex
VII arbitral tribunal under UNCLOS. It was the only
sensible and effective response that the Philippines
could offer. Otherwise, nothing would stop China from
occupying another rock, reef, or shoal within its 9-
dashed line claim even if within the EEZ of the
Philippines.
The Chinese occupation of Scarborough Shoal is an
invasion of Philippine territory, giving rise to a
territorial sovereignty dispute. However, the Philippines
could not bring China to compulsory arbitration on a
territorial sovereignty dispute without Chinas consent.
That is why the Philippines decided to do the next best
thing bring China to compulsory arbitration on the
maritime aspect of Chinas 9-dashed line claim. If
Chinas 9-dashed line claim is invalidated, then China
will lose its excessive claim to the waters of the South
China Sea. More significantly, Chinas basis for
claiming territorial sovereignty over the islands within
its 9-dashed line claim will weaken considerably since
the 9-dashed line claim is central to Chinas historical
claim to territorial sovereignty over the islands within
the enclosed area.
Is Chinas consent required for the compulsory
arbitration?
When a state ratifies UNCLOS, the state consents in
advance to be bound by the compulsory dispute
settlement mechanism under UNCLOS on any dispute
concerning the interpretation or application of the
provisions of UNCLOS. However, a state is allowed to
opt out of compulsory arbitration for certain matters,
like disputes on maritime boundary delimitation. In
1996, ten years after ratifying UNCLOS, China opted
out of compulsory arbitration for certain types of
disputes, including any dispute on maritime boundary
delimitation. A state remains bound to compulsory
arbitration with respect to the interpretation or
application of UNCLOS on disputes that the state has
not excluded, or cannot exclude, from compulsory
arbitration.

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Thus, when an actual dispute arises involving the
interpretation or application of UNCLOS, a signatory
state is already deemed to have given its consent to
compulsory arbitration, unless the dispute is one that
is properly excluded from compulsory arbitration under
UNCLOS.
The Philippines arbitration case against China involves
the interpretation or application of UNCLOS on three
main issues. The first issue is whether Chinas 9-
dashed line claim can negate the grant under UNCLOS
of an EEZ to the Philippines. This issue does not involve
any maritime boundary delimitation because there are
no overlapping EEZs between China and the
Philippines, certainly not in the island of Luzon facing
the West Philippine Sea. Scarborough Shoal, whatever
state may have sovereignty over it, does not generate an
EEZ because only small rocks are found there.
Admittedly, those rocks are not islands capable of
sustaining human habitation or economic life of their
own, which is the condition for an island to have an
EEZ.
In the Spratlys there is no island capable of sustaining
human habitation or economic life of its own. This is
the position of the Philippines, Vietnam, Malaysia and
Brunei. Thus, there are also no overlapping EEZs
between the Philippines and other claimant states in
the Spratlys. However, since China claims that islands
in the Spratlys generate EEZs, the second issue is
whether an island in the Spratlys actually generates an
EEZ. The resolution of this issue does not involve any
maritime boundary delimitation. This issue is an
inquiry into whether an island in the Spratlys satisfies
the UNCLOS requirement of being able to sustain
human habitation or economic life of [its] own. If none
of the islands satisfies this requirement, then there are
no overlapping EEZs in the Spratlys and hence no
maritime boundary delimitation is involved. If an island
satisfies this requirement, and thus generates an EEZ,
then the tribunal will so declare but will proceed no
further without the consent of China because the issue
will then involve overlapping EEZs requiring maritime
boundary delimitation for its resolution.
In the event that the arbitral tribunal rules that an
island in the Spratlys generates an EEZ, the Philippines
can bring China to compulsory conciliation under an
UNCLOS conciliation commission. Under UNCLOS, a
state that opts out of compulsory arbitration involving
maritime boundary delimitation shall nevertheless
submit to compulsory conciliation. The conciliation
commission will adjust the median line of the
overlapping EEZs, taking into account Palawans more
than 600-nm coastline as against the less than 1-nm
coastline of the biggest island in the Spratlys. Under
prevailing law of the sea jurisprudence, such huge
disproportion in the opposing coastlines will entitle the
island in the Spratlys to an EEZ either only seaward
away from Palawan, or to a proportionally minuscule
EEZ facing Palawan, if at all. Although the report of the
conciliation commission is not binding on China, China
is obligated under UNCLOS to negotiate in good faith
with the Philippines based on the report of the
conciliation commission.
The third issue is whether China can appropriate and
construct artificial islands on low-tide elevations (LTEs)
within the Philippines EEZ, like the massive structure
China built on Mischief Reef, which China officially
describes as a shelter for Chinese fishermen. LTEs are
rocks above water at low tide but under water at high
tide. LTEs beyond the territorial sea of a coastal state
do not generate any maritime zone, not even a
territorial sea. LTEs beyond the territorial sea are not
subject to appropriation and to claims of territorial
sovereignty because they are not land but part of the
maritime zone. Under UNCLOS, only the adjacent
coastal state can build artificial islands within its EEZ.
A corollary issue raised by the Philippines is whether
China can subject the high seas in the South China Sea
to its sovereignty. The high seas refer to the area
beyond the EEZs of coastal states. Chinas 9-dashed
line claim subjects the high seas in the South China
Sea to Chinas indisputable sovereignty. UNCLOS
expressly provides that no state shall subject the high
seas to its sovereignty. This UNCLOS provision is a
codification of centuries old customary international
law.
Under UNCLOS, the refusal of a party to participate in
a dispute settlement proceedings, where such
participation is compulsory, shall not constitute a bar
to the proceedings and the tribunal can still decide the
case on the merits.
How long will it take for the arbitral tribunal to
decide the case?
The 5-man Annex VII arbitral tribunal met for the first
time last July 11, 2013 and designated The Hague as
seat of the arbitration and the Permanent Court of
Arbitration as the Registry of the proceedings. Although
China has refused to participate in the proceedings, it
is still being notified, and requested to comment, at
every stage of the proceedings. Last Tuesday, August
27, 2013, the Tribunal issued an Order approving its
Rules of Procedure and directing the Philippines to
submit its Memorial not later than March 30, 2014. The
Order states that the Memorial shall fully address all
issues, including matters relating to the jurisdiction of
the Arbitral Tribunal, the admissibility of the
Philippines claim, as well as the merits of the dispute.
The Order further states, The Arbitral Tribunal will
determine the further course of the proceedings,
including the need for and scheduling of any other
written submissions and hearings, at an appropriate
later stage, after seeking the views of the Parties.
Based on the Tribunals Order requiring all issues to be
addressed in the Memorial of the Philippines, it is
possible that the Tribunal may decide the jurisdictional
issue together with merits of the dispute. Arbitrations
under Annex VII may take two to three years before a
decision is reached.
What are the ramifications of this case on
international law?
Chinas 9-dashed line claim simply cannot co-exist with
UNCLOS. Upholding one means killing the other. If
Chinas 9-dashed line claim is upheld or allowed to
stand, UNCLOS will cease to be the law of the sea in the
South China Sea. China will appropriate for itself not
only the EEZs and ECSs of other coastal states but also
the high seas and all the living and non-living resources
found there. This will be the beginning of the end for
UNCLOS. Other naval powers will likewise claim other
oceans and seas, taking away the EEZs and ECSs of
weak or defenseless coastal states. The oceans and seas
of the planet will be governed by the rule of the naval
canon.
Indeed, the maritime dispute between the Philippines
and China is an acid test to the very survival of
UNCLOS whether the Rule of Law will govern the
oceans and seas of our planet, or whether the rule of
the naval cannon will prevail, as it did in the time of
Grotius. Legal scholars on the law of the sea all over the
world are keenly watching the outcome of the
Philippines arbitration case.
What are the ramifications of this case on the
Philippines?

6
The Philippines has wisely chosen to bring its maritime
dispute with China to a forum where warships, fighter
planes and missiles do not count, eliminating the
military advantage of China and insuring that the
outcome of the dispute will be decided only in
accordance with the Rule of Law. It was a wise decision,
but one borne out of necessity because it was actually
the only viable option open to the Philippines.
We have to admit that as a nation we have neglected to
maintain a credible self-defense force, particularly in
our naval assets despite our being an archipelagic
country with extensive coastlines and a vast EEZ. We
are paying dearly for this neglect, by losing Mischief
Reef in 1995, Scarborough Shoal in 2012, and most
likely Ayungin Shoal in the near future. To remain a
sovereign and independent nation, to maintain our
territorial integrity, to avoid further humiliation, and to
maintain our self-respect as a nation, we must build
and maintain a credible self-defense force. There is
simply no alternative to this. No nation can remain
sovereign, independent and free for long without
maintaining a credible self-defense force, even if
international law and world opinion are on its side.
As a nation we must also understand that the maritime
and territorial dispute with China in the West
Philippine Sea is an inter-generational struggle to
maintain our sovereignty and territorial integrity. Our
generation may win the legal battle in the UNCLOS
arbitration case, but for sure China will not simply
abandon its massive structure in Mischief Reef or
withdraw its surveillance vessels in Scarborough Shoal.
After securing a favorable ruling from the arbitral
tribunal, our generation must still win over world
opinion and convince the Chinese people that they will
become a rogue nation if their Government continues to
violate international law. he Chinese leaders may not
survive politically if they simply abandon the 9-dashed
line claim without the Chinese people being convinced
that their 9-dashed line claim is against international
law. The present generation of Chinese have been
taught from the time they entered school that the South
China Sea belongs to them. The next generation of
Filipinos, and even the generation after them, must
continue to wage a worldwide campaign to convince the
Chinese people that the 9-dashed line claim has no
basis in international law.
UNCLOS does not provide for a world policeman or
sheriff to execute decisions of international arbitral
tribunals. Member states of UNCLOS are expected to
voluntarily self-execute decisions of arbitral tribunals.
For a losing party, this will happen only if the
Government of the day can survive politically even if it
complies with a decision against its own state. A
Government will survive politically if its people
understand that the decision is mandated by
international law. The world must explain to the
Chinese people that the 9-dashed line claim is contrary
to international law. No nation can claim the oceans
and seas as its own. That is why it is necessary for the
Philippines to first secure a ruling from an international
tribunal that the 9-dashed line claim is contrary to
international law.
The West Philippine Sea dispute can, and must be
resolved, through the Rule of Law because it is the only
fair, just and durable solution to a situation where the
opposing states are vastly unequal in terms of military,
economic and political strength. Any resolution of the
dispute outside of the Rule of Law will only result in
unequal treaties and plant the seeds of conflict for
future generations.
The Rule of Law in the West Philippine Sea dispute is
UNCLOS. All the claimant states to the dispute are
parties to UNCLOS and are bound to comply with their
treaty obligations under UNCLOS in good faith. If the
West Philippine Sea dispute is settled in accordance
with UNCLOS, then the world can be assured that there
will be a just, permanent and lasting peace in the West
Philippine Sea.
end
Background
The prevailing basis for Chinas historic claims to the
SCS South China Sea is the U-shaped line (also
called nine-dotted line, or nine-dash line) officially
drawn on the Chinese map in 1947 by the then
Chinese Nationalist Government, which was originally
an "eleven-dotted-line" . After the Communist Party of
China took over mainland China and formed the
People's Republic of China in 1949, the line was
adopted and revised to nine as endorsed by Zhou Enlai.
The line, which has been called a traditional maritime
boundary line, encloses the main island features of the
SCS: the Pratas Islands, the Paracel Islands, the
Macclesfield Bank, and the Spratly Islands. No country,
including Southeast Asian countries or their past
rulers, protested or challenged the validity of the 9-dash
line from 1947 to 1970s.
Legal Status of the U-shape Line
There are four schools of thoughts among Chinas
academies on the interpretation of this line, namely the
line of boundary, the line of historic waters, the line
of historic rights and the line of ownership of the
features. Line of Boundary theory simply indicates
that the U-shape line defines the limit or extent of
Chinas territory. The basis of this theory is
comparatively weak in international law, and has been
criticized even by some Chinese scholars.
The Taiwan authorities gave the status of historic water
to the water areas within the U-shaped line in 1993
when it issued the SCS Policy Guidelines, which stated
that the SCS area within the historic water limit is the
maritime area under the jurisdiction of the Republic of
China, in which the Republic of China possesses all
rights and interests. This can be regarded as Taiwans
official position on the concept of historic waters,
though this claim has not acquired unanimous support
among Taiwanese scholars.
We have to realize that the formulation of the concept of
historic waters requires an adjustment of the generally
accepted law of the sea regimes. Because of the peculiar
circumstances of some maritime areas which fall within
the national jurisdiction of coastal states, these areas
are allowed to be part of the jurisdictional waters as an
exception to the general rule. As early as 1984 the
question was asked whether the doctrine of historic
bays and historic waters had become obsolete with the
development of new, alternative concepts of national
maritime expansion such as the EEZ and the
continental shelf. Judged by recent State practice, the
answer to this question is no. Rather, there is a trend
toward the application and assertion of historic claims
whether to bays, waters or rights in spite of the
establishment of new legal concepts such as the EEZ
and continental shelf in the law of the sea. Such a trend
may eventually help to codify the rules of historic rights
and/or historic waters in general international law.
There also exists the separable term of historic rights
normally in high seas areas, but without any
connotations as to sovereignty in the locale, such as
historic fishing rights. The 2006 Barbados/Trinidad
and Tobago Arbitration case entails the argument of
historic rights of fishing. The term historic rights is
broader than that of historic waters. In its widest
sense, it implies that a State claiming to exercise
certain jurisdictional rights in what usually basically

7
satisfy the same, or at least similar, supposed
requirements for establishing historic waters claims
per se, particularly those of continuous and long usage
with the acquiescence of relevant other States. For
example, in the Tunisian pleadings in Tunisia/Libya, it
was, in effect, argued that historic rights were claimable
on a similar basis to that relation to historic waters,
namely that they were established by exercise of
peaceable and continued sovereignty, with prolonged
toleration on the part of other States.
Currently, the theory of sovereignty + UNCLOS +
historic rights prevails among the Chinese scholars.
According to this theory, China enjoys sovereignty over
all the features within this line, and enjoys sovereign
right and jurisdiction, defined by the UNCLOS, for
instance, EEZ and continental shelf when the certain
features fulfill the legal definition of Island Regime
under Article 121 of UNCLOS. In addition to that,
China enjoys certain historic rights within this line,
such as fishing rights, navigation rights and priority
rights of resource development.
Historic concepts and maritime delimitation
The presence of historic concepts may affect the
drawing of a maritime boundary. The delimitation of the
territorial sea specifically requires an adjustment of the
median line where it is necessary to take account of
historic title or other special circumstances. The
relevance of claimed historic rights to maritime
delimitation of the expanded maritime zones such as
EEZ and the continental shelf remains somewhat
unclear in the light of case law, though State practice in
recent times suggests that historic rights, even if
considered irrelevant to delimitation issues, may still be
independently taken into account by special agreement
as to access.
Since there are no definitive rules in international law
which govern the status of maritime historic rights,
Chinas claim is not a violation of international law.
Similarly, since there are no such rules, it is doubtful
whether Chinas claim could be established in
international law. What is more problematic is Chinas
implementation of what it has claimed in the SCS or
elsewhere where China may assert historic rights and
interests. As the ICJ once stated, general international
law does not provide for a single regime of historic
waters or historic bays, but only for a particular regime
for each of several specific, generally recognized cases of
historic waters or historic bays. From this point of view,
Chinas claim can be regarded as one of these
particular cases, which may stand up in international
law as doctrine evolved over time.
Historic concepts vs. new maritime regimes in the SCS
Chinas historical claim in the SCS based on the U-
shaped line overlaps with the claims to EEZ and
continental shelf areas of Vietnam, Indonesia, Malaysia,
Brunei and the Philippines. The perceived excessive
claims put forward by other SCS countries, such as the
Philippines and Malaysia, who have claimed some
islands in the SCS based upon the 200 nautical mile
EEZ rights of UNCLOS, may have encouraged China to
insist that its SCS claim is based upon the U-shaped
line. In Chinas view, a claim derived from historic
rights may seem more forceful and valid in law than
claims simply based upon the EEZ concept. A balance
is needed between historic claims and modern claims
under the UNCLOS.
Historic concepts related dispute settlement under
UNCLOS
Compulsory dispute settlement under Section 2 in Part
XV of UNCLOS is available for States for disputes
relating to the delimitation of the territorial sea, EEZ,
continental shelf, and to historic title unless States
have opted to exclude these disputes by virtue of Article
298 (1) (a). Declarations permitted under Article 298
relate first, to maritime delimitation disputes in relation
to the territorial sea, EEZ or continental shelf of States
with opposite or adjacent coasts, as well as disputes
involving historic bays or title. Chin made a declaration
in 2006 under Article 298 (1) (a) of UNCLOS.
Concluding remark
China has not given up maritime claims based on the
U-shaped line and recent practice has demonstrated
that China is attempting to further consolidate the
claim based on the line;
in particular by undertaking regular and intensified law
enforcement patrols in the South China Sea within the
line. The U-shaped Line map issued by China is a
strong evidence for China; however, China needs to
address its formal position and clarification of this map,
in order to avoid the misunderstanding on Chinas
position on the South China Sea dispute.

Participants to the recently concluded 4th biennial
Conference of the Asian Society of International Law in
New Delhi, India last November 15, 2017 heard for the
first time the Chinese position on the Philippine arbitral
claim on the West Philippines Sea dispute.
In the said conference, I delivered a paper entitled
What next after the Chinese Snub? Examining the
UNCLOS dispute settlement procedure: Philippines vs.
China. My paper argued that the issues that the
Philippines brought to the arbitral claims, to wit, the
validity of Chinas nine-dash lines, whether certain low-
tide elevations where China has built installations
pertain to the Philippines as part of its continental
shelf; and whether the waters surrounding the
territorial sea of Panatag form part of the Philippines
EEZ are issues of interpretation of specific provisions of
the UNCLOS and hence, were within the compulsory
and binding dispute settlement procedure of the
UNCLOS.
Further, while I acknowledged that Chinas reservations
on maritime delimitation and law enforcement activities
in the exercise of sovereign rights were more
challenging obstacles to hurdle, they were not
insurmountable because the language of the Philippine
claim does not call for a ruling involving any of the
reservations made by China.
My paper assumed that the Tribunals jurisdiction over
China as party to the proceedings was well settled. This
is because China, as a party to the UNCLOS, has
accepted the dispute settlement procedure of the
Convention, together with all the provisions of the
Convention which were all adopted on the basis of
consensus.
The Chinese Judge to the International Court of
Justice, Judge Xue Hanqin, was present in the
conference. Judge Xue is the highest woman official in
China prior to her election to the Court. Previously, she
served as chief legal adviser and head of the treaties
office of the Chinese Foreign Ministry and Ambassador
to the Netherlands and Asean. She is said to have been
groomed to be part of the Central Bureau of Chinas
Peoples Party had she not opted to join the ICJ. While
Judge Xue and I have been good friends, having served
together in the Executive Council of the Asian Society of
International Law for the past 6 years, I knew it would
still be awkward to have her listening to my
presentation.
But the most unusual thing happened after my 25-
minute presentation. Judge Xue, explaining that since
she was the only Chinese present in the conference
because the Chinese delegates were denied visas by
Indian authorities, took the floor for the next 20
minutes and for the first time expounded extensively on

8
the Chinese position on the Philippine arbitral claim.
This was unusual because magistrates, be it from
domestic or international courts, will normally refuse to
comment on an actual dispute, which could come to
their court for adjudication. This certainly applies to the
West Philippines Sea dispute.
Judge Xue raised four crucial points. Her first was that
the Philippine claim involved territorial claims which is
outside the purview of UNCLOS. She added though that
since the end of World War II, the international
community, has acknowledged the existence of Chinas
nine-dash lines with no country ever questioning it
until oil resources were discovered in the area. Without
expounding on the nature of the lines, she claimed that
it is not considered as a boundary line and they have
not affected international navigation in the area. She
claimed that there was no international law applied in
this regard to the region.
Second, Judge Xue argued that 40 countries, including
China, made declarations to the dispute settlement
procedure of the UNCLOS. According to her, this means
these 40 states have not accepted the dispute
settlement of the Convention as being compulsory. She
said that when countries joined UNCLOS I, they are
not deemed to have given up all their previous
territorial claims.
Third, she said that as Chinas first Ambassador to
Asean, she knows that the countries of Asean and
China have agreed to a code of conduct relating to the
South China Sea. Under this code, disputes must be
resolved through negotiations and not through
arbitration. She claimed that this obligation was a
substantive obligation binding on all claimant state.
Fourth, Judge Xue explained that China opted out of
the arbitration because no country can fail to see the
design of the Philippine claim which she described as
having mixed up jurisdiction with the merits.
She opined that the Philippines resort to arbitration
complicated what she described as an impressive
process between Asean and China. What the Philippine
did was to begin with the complicated part of the
South China Sea dispute rather then with easier ones
such as disaster management. This later
pronouncement all but confirmed that the very limited
humanitarian assistance extended to the Philippines by
China in the aftermath of Yolanda was because of the
Philippine resort to arbitration.
Judge Xue ended her intervention by exhorting the
Philippines to consider joint use of the disputed waters,
a matter that according to her has been successfully
resorted to by China and Vietnam.
While Judge Xues intervention made our panel,
without a doubt, the most memorable exchange in the
conference, her declarations provided us with many
answers that China has refused to give us.
Department of Foreign Affairs
April 18, 2012
Background on the Bajo de Masinloc (Panatag)
incident
Bajo de Masinloc is an integral part of the Philippine
territory. It is part of the Municipality of Masinloc,
Province of Zambales. It is located 124 nautical miles
west of Zambales and is within the 200 nautical-mile
Exclusive Economic Zone (EEZ) and Philippine
Continental Shelf.
Surveillance aircraft monitored eight Chinese fishing
vessels anchored inside the Bajo de Masinloc (Panatag
Shoal) on Sunday, April 8, 2012, in the conduct of its
maritime patrols and its enforcement of the Philippine
Fisheries Code and marine environment laws. On April
10, 2012, the BRP Gregorio del Pilar, in accordance with
the established Rules of Engagement, dispatched an
inspection team that reported that large amounts of
illegally collected corals, giant clams, and live sharks
were found in the compartments of these fishing
vessels.
The actions of the Chinese fishing vessels are a serious
violation of the Philippines sovereignty and maritime
jurisdiction. The poaching of endangered marine
resources is in violation of the Fisheries Code and the
Convention on International Trade in Endangered
Species of Wild Flora and Fauna (CITES).
Basis of Philippine sovereignty over Bajo de
Masinloc and the waters within its vicinity
Bajo de Masinloc (Scarborough Shoal) is not an island.
Bajo de Masinloc is also not part of the Spratlys.
Bajo de Masinloc (Scarborough Shoal) is a ring-shaped
coral reef, which has several rocks encircling a lagoon.
About five of these rocks are above water during high
tide. Of these five rocks, some are about 3 meters high
above water. The rest of the rocks and reefs are below
water during high tide.
Bajo de Masinlocs (Scarborough Shoal) chain of reefs
and rocks is about 124 NMfrom the nearest coast of
Luzon and approximately 472 NM from the nearest
coast of China. Bajo de Masinloc is located
approximately along latitude 1508N andlongitude
11745E. The rocks of Bajo de Masinloc are situated
north of the Spratlys.
Obviously, therefore, the rocks of Bajo de Masinloc is
also within the 200-NM EEZand 200-NM continental
shelf (CS) of the Philippines.
A distinction has to be made between the rock
features of Bajo de Masinloc and thelarger body of
water and continental shelf where the said geological
features are situated. The rights or nature of rights of
the Philippines over the rock features of Bajo de
Masinloc are different from that which it exercises over
the larger body of water and continental shelf.
The Philippines exercises full
sovereignty and jurisdiction over the rocks of Bajo de
Masinloc, and sovereign rights over
the waters and continental shelf where the said rock
features of Bajo de Masinloc are situated.
The basis of Philippine sovereignty and jurisdiction over
the rock features of Bajo de Masinloc is distinct from
that of its sovereign rights over the larger body of
waterand continental shelf.
A. The rock features of Bajo de Masinloc: Basis of
Philippine sovereignty under Public International
Law
The rock features of Bajo de Masinloc are Philippine
territories.
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.

9
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.
As decided in a number of cases by international courts
or tribunals, most notably thePalmas 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 beenhistorically
discovered by Spain and historically ceded to the
U.S. in the Treaty of Paris.
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 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.
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.
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).
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.
In 2009, when the Philippines passed an amended
Archipelagic Baselines Law that is fully consistent with
the Law of the Sea, Bajo de Masinlocs 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 United Nations Convention on the
Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under
Presidential Decree No. 1596; and
b) Bajo de Masinloc, also known as Scarborough
Shoal.
Comments on Chinese claims
Question:
But what about the historical claim of China over Bajo de
Masinloc (Scarborough Shoal)? Does China have a much
superior right over Bajo de Masinloc (Scarborough Shoal)
on the basis of its so-called historical claim? China is
claiming Bajo de Masinloc (Scarborough Shoal) based on
historical arguments, claiming it to have been discovered
by the Yuan Dynasty? China is also claiming that Bajo
de Masinloc (Scarborough Shoal) has been reflected on
various official Chinese Maps and has been named by
China in various official documents?
Answer:
Chinese assertion based on historical claims must be
substantiated by a clear historic title. It should be
noted that under public international law, historical
claimsare not historical titles. A claim by itself,
including historical claim, could not be a basis for
acquiring a territory.
Under international law, the modes of acquiring a
territory are: discovery, effective occupation,
prescription, cession, and accretion. Also, under public
international law, for a historical claim to mature into a
historical title, a mere showing of long usage is not
enough.
Other criteria have to be satisfied such as that the
usage must be open,continuous, adverse or, in the
concept of an owner, peaceful and acquiesced by other
states. Mere silence by other states to ones claim is not
acquiescence under international
law. Acquiescence must be affirmative such that
other states recognize such claim as a right on the part
of the claimant that other states ought to respect as a
matter of duty. There is no indication that the
international community have acquiesced to Chinas
so-called historical claim.
In relation to name-giving and maps, name-giving (or
names in general), and placing of land features on
maps, these are also not bases in determining
sovereignty. In international case law relating to
questions of sovereignty and ownership of land
features, names and maps are not significant factors in
the determination of international tribunals
determination of sovereignty.
Question:
What about China claiming Bajo de Masinloc
as traditional fishing waters of Chinese fishermen?
Answer:

10
Under international law, fishing rights is not a mode of
acquiring sovereignty (or even sovereign rights) over
an area. Neither could it be construed that the act of
fishing by Chinese fishermen is a sovereign act of a
state nor can be considered as a display of state
authority. Fishing is an economic activity done
by private individuals. For occupation to be effective,
there has to be clear demonstration of the intention
and will of a state to act as sovereign, and there has to
be a peaceful and continuous display of state authority,
which the Philippines has consistently demonstrated.
Besides, when UNCLOS took effect, it has precisely
appropriated various maritime zones to coastal states,
thus eliminating so-called historical waters and justly
appropriating the resources of the seas to coastal states
to which said seas are appurtenant. Traditional fishing
rights is in fact mentioned only in Article 51 of
UNCLOS, which calls for archipelagic states to respect
such rights, if such exist, in its archipelagic waters.
It should also be noted that, in this particular case, the
activities of these so-called fishermen can be hardly
described as fishing. The evidence culled by the
Philippine Navy showed clearly that these are poaching
activities involving the harvesting ofendangered
marine species, which is illegal in the Philippines and
illegal under international law, specifically the CITES.
B. Waters outside and around Bajo de Masinloc:
Basis of Philippine sovereign rights under UNCLOS
As earlier indicated, there is a distinction between the
rock features of Bajo de Masinloc and the waters within
its vicinity. The question of who owns the rocks is a
matter governed by the principles of public
international law relating to modalities for acquiring
territories. On the other hand, the extent of its adjacent
waters is governed by UNCLOS. Likewise, the waters
outside of the maritime area of Bajo de Masinloc are
also governed by UNCLOS.
As noted, there are only about five rocks in Bajo de
Masinloc that are above water during high tide. The rest
are below water during high tide. Accordingly, these
rocks have only 12 NM maximum territorial waters
under Article 121 of UNCLOS. Because the Philippines
has sovereignty over the rocks of Bajo de Masinloc, it
follows that it has also sovereignty over their 12-NM
territorial waters.
Question:
But what about the waters outside of the 12-NM
territorial waters of the rock features of Bajo de
Masinloc? What is the nature of these waters including
the continental shelves? Which state has sovereign rights
over them?
Answer:
As noted, Bajo de Masinloc is located approximately at
latitude 1508N and longitude 11745E. It is
approximately 124 NM off the nearest coast of the
Philippine province of Zambales. Clearly, the rock
features of Bajo de Masinloc are within the 200-NM
EEZ and CS of the Philippine archipelago.
Therefore, the waters and continental shelves outside of
the 12-NM territorial waters of the rocks of Bajo de
Masinloc appropriately belong to the 200-NM
EEZ and CS of the Philippine archipelago. As such, the
Philippines exercises exclusive sovereign rights to
explore and exploit the resources within the said areas
to the exclusion of other countries under UNCLOS. Part
V of UNCLOS specifically provides that the Philippines
exercises exclusive sovereign rights
to explore, exploit, conserve, andmanage
resources, whether living or nonliving, in this area.
Although, other states have the right of freedom of
navigation over the said areas, such rights could not
be exercised to the detriment of the internationally
recognized sovereign rights of the Philippines to explore
and exploit the resources in its 200-NM EEZ and CS. To
do otherwise would be in violation of international law
specifically UNCLOS.
Therefore, the current action of the Chinese
surveillance vessels in the said 200-NM EEZ of the
Philippines that are law enforcement in nature
is obviously inconsistentwith its right of freedom of
navigation and in violation of the sovereign rights of
the Philippines under UNCLOS.
It must also be noted that the Chinese fisherman earlier
apprehended by Philippine law enforcement agents may
have poached not on Bajo de Masinloc per se, but likely
on the EEZ of the Philippines. Therefore,
these poachers have likewiseviolated the sovereign
rights of the Philippines under UNCLOS.
Presence of the Philippine-registered archeological
vessel
The Philippine National Museum has been undertaking
an official marine archaeological survey in the vicinity
of Bajo de Masinloc.
The archaeological survey is being conducted by the
Philippine National Museum, which is on board the
Philippine motor yacht M/Y Saranggani.
Chinese maritime surveillance vessels have been
harassing the M/Y Saranggani. The Philippines has
strongly protested these harassments by the Chinese
side. Said actions by the Chinese vessels are in
violation of the sovereign right and jurisdiction of the
Philippines to conduct marine research or studies in its
EEZ.
Endangered species found in Chinese fishing vessels
The Philippine Navy, during a routine sovereignty
patrol, saw eight fishing vessels moored at the Bajo de
Masinloc on April 10. The Philippine Navy inspected
these vessels and discovered that they were Chinese
fishing vessels and on board were illegally obtained
endangered corals and giant clams in violation of the
Philippine Fisheries Code.
The Philippines is a staunch advocate in protecting its
marine environment from any form of illegal fishing and
poaching. It is a state party to the CITES and
Convention on Biological Diversity.
This illicit activity has also undermined the work of the
Philippine government as a member of the Coral
Triangle Initiative.
The coral colonies in Bajo de Masinloc have been in
existence for centuries.
Current situation
The Philippines is committed to the process of
consultations with China toward a peaceful and
diplomatic solution to the situation.
As the DFA works toward a diplomatic solution, the
Philippine Coast Guard is present in the area and is
continuing to enforce relevant Philippine laws.