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The Philippine Territorial Claim on the West Philippine Sea

I. Background
The West Philippine Sea or the South China Sea is a body water surrounded by
six states namely; China (southern coast and Hainan Island) in the north, Taiwan in
the northeast, The Philippines in the east and southeast, Vietnam in the west, and
Brunei, Malaysia, and Indonesia in the south.
Subject of Claims
In the West Philippine Sea, there are small insular features which are subject to
claims by both The Philippines and the Peoples Republic of China these are the
Scarborough Shoal and the Spratly Islands. The Scarborough Shoal is a submerged
coral reef with six small protrusions of rock above sea level at high tide. While the
Spratly Islands are a group of one hundred fifty (150) rocks, submerged reefs,
banks and low tide elevation, among these features that are subject to dispute in
the Spratlys are the rocks; Johnson Reef, Cuarteron Reef, and Fiery Cross Reef and
those composing the continental shelf of the Philippines; Mischief Reef, McKennan
Reef, Gaven Reef, and Subi Reef. The Scarborough Shoal is located one hundred
twenty meters (120) in the west of the coast of the Philippines and the Spratly
Islands fifty (50) and (350) M from the Island of Palawan, Philippines and five
hundred fifty (550) M of the Island of Hainan, China. The Scarborough Shoal and the
Spratly Islands form part of the Philippines two hundred (200) M Exclusive
Economic Zone or Contiguous Zone under the United Nations Convention on the
Law of the Sea (UNCLOS). China, however, claims that the disputed insular features
form part of their Nine-Dash Line which posits the territorial demarcation for their
claims in the South China Sea.

The demarcation made by China has its basis in the claim that, China has
complete authority and sovereignty over those islands as they reclaimed the
territories following the defeat of Japan during the Second World War as stated in
the Cairo and Potsdam Declarations. The Nine-Dash Line however, is not consistent
with nor supported by the laws on the sea and territorial claims such as the
UNCLOS. Nonetheless, the aforementioned rocks and continental shelves are being
occupied by China at present and is heavily opposed by the Philippines as
prejudicial to the countrys territorial integrity and sovereignty, hence this dispute.
II. Arbitration and Settlement
Due to the foregoing disputes over the Spratlys and Scarborough Shoal
disputes between the two states and failure of the Philippine-China Bilateral
Negotiations to secure final settlement of the dispute despite its 20 years of long
negotiations having commenced in 1995, the Philippines initiated a recourse to
compulsory arbitration in an arbitral tribunal under Articles 281 (1),286, 287 (5) of
the UNCLOS. Such action by the Philippines, being a state-party to the convention is
proper for the final settlement despite China, also being a state-party, refuses to
subject itself to arbitration.
II. Basis of Philippine Claim (International law)
The government of the Philippines espouses its claims on the disputed insular
features on the following bases: (1) Legal Basis : That the Spratlys Islands and
Scarborough Shoal form part of the Philippines Exclusive Economic Zone under Part
II, Rights to a Territorial Sea and Exclusive Economic Zone, Part V, Exclusive
Economic Zone, and Part VI Continental Shelf of the United Nations Convention on
the Law of the Sea (2) Historical Basis: The historical rights as the ancestral domain

of the Sultanate of Sulu date backs from the Mahjapahit and Shrivijaya empires,
which extended from Sabah (North Borneo), the Sulu archipelago, Palawan, parts of
Mindanao, the islands now known as the Spratlys, Palawan, and up to the Visayas
and Manila.
The legal basis of the Philippines under International Law will be the subject
matter of the discussions in this position paper.
The Philippines and China, being signatories of the UNCLOS are bound to
observe and obey the provisions of the Convention under the Doctrines of Pacta
Sunt Servanda and Auto limitation. Under Pacta Sunt Servanda, China, being a
signatory of the convention, must observe in good faith and full respect, the rules
provided by the convention in delimiting the scope of exercise of sovereignty in the
seas. China cannot assert its refusal to the arbitration on the ground that it is their
right in international law to not give consent to be bound, for this defense is already
defeated by their capacity as a state-party in the convention. China is left with no
legal remedy to assert its claim because its signature with the UNCLOS is already an
implied auto limitation on the exercise of its sovereign rights under the international
community.
Why the Philippine Claim may not prosper in the Arbitration
Although the government of the Philippines may have strong and compelling
bases in asserting its rights over the disputed islands under international law, such
as dependence on the provisions of the UNCLOS. It may not be sufficient for the
claim to prosper in the arbitration. The reason why is that the Chinese government
already occupied and asserted its presence in the disputed territories. China has
constructed establishments and facilities on Mischief, McKennan, Gaven, and Subi

Reefs. Eventually, China may have effective control over the territories and in no
time will be the state exercising sovereignty over such.
In existing jurisprudence on territorial claims in international law, it is upheld in
the case of The Island of Palmas (Perm.Ct Arb. 1928 ) that an inchoate title cannot
prevail over a definite title founded on continuous and peaceful display of
sovereignty. In this case, the United States as successor to the rights of Spain in the
Philippines bases its title in the Island of Palmas on discovery and by treaty as it
also forms a geographical part of the Philippines, lost its claim to the Island of
Palmas to The Netherlands. It is because, The Netherlands has acquired continuous
and peaceful display of state authority over the Island of Palmas although by treaty
is part of the Philippines under the United States. The similar case of the Pulau
Ligitan and Sipadan dispute between Malaysia and Indonesia also holds the same
reason for effective occupation over mere title.
In this case, Chinese occupation over Spratlys and Scarborough Shoal could
lead to effective occupation. The Philippines may lose its claim in the arbitral
tribunal for its lack of effective occupation in the disputed islands even though it
has a legal title over such under the UNCLOS.