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PUBLIC INTERNATIONAL LAW

DR. RODEL A. TATON1


THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
(UNCLOS), A BACKGROUND

It was etched in the world history that 10 December 1982 is the time when the United
Nations Convention on the Law of the Sea (UNCLOS) came into agreement after a
series of long negotiations and deliberations among nations. In this historic day in
Montego Bay, Jamaica that 117 states signed the final acts of the conference and the
Convention on the Law of the Sea. UNCLOS came into force on November 16, 1994
after a year that the 60th state ratified the Convention in accordance with Article 308(1) 2.
On its part, the Republic of the Philippines became a party to the UNCLOS when it
signed on 10 December 1982 and it ratified the same on 8 May 1984.

UNCLOS gradually came about from the times when the perils of the sea are
insurmountable that ancient people perceive the sea as a monster. The seas were
infested with pirates and reprisals and wars. Thus, freedom of the seas was described

1 Dr. Taton is currently the Dean of the Graduate School of Law, San Sebastian College-Recoletos
Manila, a Graduate School of Law Professorial Lecturer at the University of Santo Tomas Graduate
School of Law (Master of Laws and Doctor of Civil Law), UST-University of San Agustin Master of Laws
Consortium. He is also a professorial lecturer at the SSC-R Institute of Law on Persons and Family
Relations, International Human Rights and Public International Law. He is an MCLE lecturer at the
University of the Philippines Law Center and other accredited MCLE providers on Updates and Trends in
International Dispute Resolution. He has degrees in Bachelor of Arts in Political Science, Bachelor of
Laws, Master of Laws and Doctor of Civil Law. He manages Taton Law and Notarial Office. Email may be
sent to: rodeltaton@gmail.com

UNCLOS Article 308 (1) This Convention shall enter into force 12 months after the
date of deposit of the sixtieth instrument of ratification or accession.
2

as a precarious interval between wars, piracy, reprisals and territorial disputes. 3 The
legal regime of the seas has evolved from the use of force as dictated by the calls of the
times. Because of trade and commerce, navigation became a source of concessions,
treaties, and pacts.

Customary rules broadened with the aid of principles drawn from Roman law.
State practices and agreements were assisted by publicists Hugo Grotius advocacy for
Mare Liberum (1609) in defense of his client, the Dutch East India Company, and the
writings of Cornilius van Bynkershoek advanced the interests of States in the freedom of
the seas as the fundamental principle in the legal regime of maritime commerce and
navigation.4

There were moves to codify the development of an international law of the sea.
In the 19th century, the International Law Association and the Institute of International
Law took the first attempt to the codification of customary law on the law of the sea.
Soon after the World War, another initiative was made by the Harvard Law School
particularly on the territorial waters and piracy.

The first official codification work was sponsored by the League of Nations, the
Hague Conference of 1930, which however failed to achieve its objective of codifying
the law of territorial waters. Following the World War II, the codification work was
resumed by the International Law Commission (ILC) which prepared draft articles on the
Magallona, Merlin M., (1997) A Primer on the Law of the Sea, Quezon City,
Philippines: New Millenium Books.
4 Ibid.page 2.
3

territorial sea and the high seas which later on provided the basis for the Geneva
Conference on the Law of the Sea of 1958, which is also referred to as the UNCLOS I.
UNCLOS I adopted the Convention on the High Seas, the Convention on the
Territorial Sea and the Contiguous Zone , the Convention on the Continental Shelf and
the Convention on Fishing and Conservation of the Living Resources of the High Seas.
However, it failed to achieve agreement on the breadth of the territorial sea. Thus, the
UN General Assembly resolved to convene the UNCLOS II in 1960 at Geneva but failed
to produce any substantive agreement on the limits of the territorial zone and fishing
rights.

In 1967, because of the technological upheaval and the development in


international law, the United Nations General Assembly decided to address matters of
law governing the seas beyond national jurisdiction. A committee on the seabed and
the Ocean floor was later established in 1968. Thereafter, in 1970, the seabed, the
ocean floor and the subsoil were declared common heritage of mankind and the
Assembly decided to convene the Third UNCLOS. The first session of the Conference
started in 1973 until in 1981 with its eleventh session followed by the Convention and
Final Act are signed on 10 December 1982 at Montego Bay, Jamaica 5.

2.3.2. MAIN FEATURES OF UNCLOS


The United Nations (1983) The Law of the Sea, Law of the Sea Conference: A
Chronology, New York : The United Nations, page 191
5

The UNCLOS established a new order in the oceans, divided into 17 parts, 320
articles, and nine annexes introduced significant provisions such as but not limited to
setting limits, navigation, archipelagic status and transit regimes, exclusive economic
zones,

continental shelf jurisdiction, deep seabed mining, the exploitation regime,

protection of the marine environment, scientific research, and settlement of disputes.

The convention set the limit of various areas, measured from a carefully defined
baseline. The areas are as follows:

Internal waters6. Covers all water and waterways on the landward side of the
baseline. The coastal state is free to set laws, regulate use, and use any resource.
Foreign vessels have no right of passage within internal waters.

Territorial sea7. This is measured 12 nautical miles from the baseline, the coastal
state is free to set laws, regulate use, and use any resource. Vessels were given the
right of innocent passage through any territorial waters, with strategic straits allowing
the passage of military craft as transit passage, in that naval vessels are allowed to
maintain postures that would be illegal in territorial waters. "Innocent passage" is
defined by the convention as passing through waters in an expeditious and continuous
manner, which is not "prejudicial to the peace, good order or the security" of the coastal
6
7

Article 8, UNCLOS
Article 3, UNCLOS

state. Fishing, polluting, weapons practice, and spying are not "innocent", and
submarines and other underwater vehicles are required to navigate on the surface and
to show their flag. Nations can also temporarily suspend innocent passage in specific
areas of their territorial seas, if doing so is essential for the protection of its security.

Archipelagic waters. The convention set the definition of Archipelagic States in


Part IV, which also defines how the state can draw its territorial borders. A baseline is
drawn between the outermost points of the outermost islands, subject to these points
being sufficiently close to one another8. All waters inside this baseline are designated
Archipelagic Waters. The state has full sovereignty over these waters but foreign
vessels have right of innocent passage through archipelagic waters.

Contiguous zone9. Beyond the 12 nautical mile limit, there is a further 12 nautical
miles from the territorial sea baseline limit, the contiguous zone, in which a state can
continue to enforce laws on customs, taxation, immigration and pollution, if the
infringement started within the state's territory or territorial waters, or if this infringement
is about to occur within the state's territory or territorial waters. This makes the
contiguous zone a hot pursuit area.

Exclusive economic zones (EEZs)10. These extend from the edge of the territorial
sea out to 200 nautical miles from the baseline. Within this area, the coastal state has
sole exploitation rights over all natural resources. Foreign nations have the freedom of
8 Article 47(1)(2), UNCLOS
9 Article 33 (1) (2), UNCLOS
10 Article 55-58, UNCLOS

navigation and overflight, subject to the regulation of the coastal states. Foreign states
may also lay submarine pipes and cables.

Continental shelf. The continental shelf is defined as the natural prolongation of


the land territory to the continental margins outer edge, or 200 nautical miles from the
coastal states baseline, whichever is greater. A states continental shelf may exceed
200 nautical miles until the natural prolongation ends. However, it may never exceed
350 nautical miles from the baseline; or it may never exceed 100 nautical miles beyond
the 2,500 meter isobaths. Coastal states have the right to harvest mineral and nonliving material in the subsoil of its continental shelf, to the exclusion of others. Coastal
states also have exclusive control over living resources "attached" to the continental
shelf, but not to creatures living in the water column beyond the exclusive economic
zone.

Aside from its provisions defining ocean boundaries, the convention establishes
general obligations for safeguarding the marine environment and protecting freedom of
scientific research on the high seas, and also creates an innovative legal regime for
controlling mineral resource exploitation in deep seabed areas beyond national
jurisdiction, through an International Seabed Authority and the Common heritage of
mankind principle. It has also established the dispute resolution mechanisms.

TERRITORY

Territory as an element of a state means an area over which a state has effective
control. The case of Las Palmas Islands substantiated the theory that control over a
territory is the essence of a state. It was said that sovereignty over a portion of the
surface of the globe is the legal condition for the inclusion of such portion in the territory
of any particular state. The exact boundaries might be uncertain but at least there
should be a definitive core over which the sovereignty is exercised. 11

MODES OF ACQUISITION OF TERRITORY

The discussion on the modes of acquisition of territories finds its relevance in this
discourse although, at this modern times, many of which are only for its historical value.

Discovery and occupation is a mode of acquisition by which territory not


belonging to any state, terra nullius, is placed under the sovereignty of the discovering
state. In occupation, it is important that a territory should be terra nullius a territory
belonging to no one at the time of the act alleged to constitute the occupation. Formerly,
it was held that the mere fact of discovery by the agents of the state gave title to the
state over a new territory. It was sufficient for a person in the name of his government to
plan a cross or any other sign post and claim it for his possession. This time, it was held
necessary that discovery be supplemented by effective occupation in order to give the
title. Discovery alone, only gives an inchoate title.

The rules of effective occupation are stricter in modern times than they were
earlier. Up to the 18th century, discovery alone sufficed a legal title. Discovery
Bernas, Joaquin G.(2009) Introduction to Public International Law. Quezon City,
Philippines : Rex Bookstore Inc., p.103
11

accompanied by some symbolic act sufficed to establish good title to sovereignty over
the land in question. In their words, the formal ceremony of taking possession, the
symbolic act was generally regarded as being wholly sufficient per se to establish
immediately a right of sovereignty over or a valid title to areas claimed and did not
require to be supplemented by the performance of other acts as in the case of effective
occupation. A right or title so acquired and established was deemed good against claims
set up in opposition thereof.12

2.4.2. THE CASE OF ISLAND OF PALMAS CASE (NETHERLANDS,


USA) APRIL 4, 192813

This case involves a dispute between United States of America and the Netherlands on
Palmas Islands (also called Miangas). This case involves sovereignty and was resolved
by arbitration.

In 1906, the United States discovered that the Netherlands also claimed
sovereignty over the island, and the two parties agreed to submit to binding arbitration
by the Permanent Court of Arbitration. On 23 January 1925, the two governments

12 G. Von Glahn (1986), Law Among Nations


13 REPORTS OF INTERNATIONAL ARBITRAL

AWARDS, Island of Palmas case


(Netherlands, USA) 4 April 1928 VOLUME II pp. 829-871 NATIONS UNIES - UNITED
NATIONS Copyright 2006

signed an agreement to that effect. Ratifications were exchanged in Washington on 1


April 1925. The agreement was registered in League of Nations Treaty Series on 19
May 1925. The arbitrator in the case was Max Huber, a Swiss lawyer.14

The main issue before the arbitrator was whether the Island of Palmas
(Miangas), in its entirety, was a part of the territory of the United States or the
Netherlands. The legal issue presented was whether a territory belongs to the first
discoverer, even if they do not exercise authority over the territory, or whether it belongs
to the state which actually exercises sovereignty over it.

In the opinion of the Arbitrator the Netherlands have succeeded in establishing


the following facts:
a. The Island of Palmas (or Miangas) 'Is identical with an island
designated by this or a similar name, which has formed, at least since
1700, successively a part of two of the native States of the Island of Sangi
(Talautse Isles).
b. These native States were from 1677 onwards connected with the East
India Company, and thereby with the Netherlands, by contracts of
Wikipedia, the Free encyclopedia
http://en.wikipedia.org/wiki/Island_of_Palmas_Case#External_linkshttp://web.archive.or
g/web/20080528174538/http://www.gwu.edu/~jaysmith/Island.html September 23, 2012
2:36PM
14

suzerainty, which conferred upon the suzerain such powers as would


'justify his considering the vassal state as a part of his territory.
c. Acts characteristic of state authority exercised either by the vassal state
or by the suzerain Power in regard precisely to the Island of Palmas (or
Miangas) have been established as occurring at different epochs between
1700 and 1898, as well as in the period between 1898 and 1906.

The acts of indirect or direct display of Netherlands sovereignty at Palmas (or


Miangas), especially in the 18th and early 19th centuries are not numerous, and there
are considerable gaps in the evidence of continuous display. But apart from the
consideration that the manifestations of sovereignty over a small and distant island,
inhabited only by natives, cannot be expected to be frequent, it is not necessary that the
display of sovereignty should go back to a very far distant period. It may suffice that
such display existed in 1898, and had already existed as continuous and peaceful
before that date long enough to enable any Power who might have considered herself
as possessing sovereignty over the island, or having a claim to sovereignty, to have,
according to local conditions, a reasonable possibility for ascertaining the existence of a
state of things contrary to her real or alleged rights.

There is moreover no evidence which would establish any act of display of


sovereignty over the island by Spain or another Power, such as might counterbalance or

annihilate the manifestations of Netherlands sovereignty. As to third Powers, the


evidence submitted to the Tribunal does not disclose any trace of such action, at least
from the middle of the 17th century onwards. These circumstances, together with the
absence of any evidence of a conflict between Spanish and Netherlands authorities
during more than two centuries as regards Palmas (or Miangas), are an indirect proof of
the exclusive display of Netherlands sovereignty.

The conditions of acquisition of sovereignty by the Netherlands are therefore to


be considered as fulfilled. It remains now to be seen whether the United States as
successor of Spain is in a position to bring forward an equivalent or stronger title. This is
to be answered in the negative.

The title of discovery, if it had not already been disposed of by the Treaties of
Munster and Utrecht, would, under the most favorable and most extensive
interpretation, exists only as an inchoate title, as a claim to establish sovereignty by
effective occupation. An inchoate title however cannot prevail over a definite title
founded on continuous and peaceful display of sovereignty.
The title of contiguity, understood as a basis of territorial sovereignty, has no
foundation in international law.

The Netherlands title of sovereignty, acquired by continuous and peaceful display


of state authority during a long period of time going probably back beyond the year
1700, therefore holds good.

Thus, the arbitrator decided that The Island of Palmas (or Miangas) forms in its
entirety a part of Netherlands territory.

In the article of Leszek Buszynski, entitled, The South China Sea: Avenues
Towards a Resolution of the Issue, the author presented that international law has
stressed the importance of the effective occupation of islands to prove title rather than
historical rights or first discovery. This precedent was laid down in the Island of Palmas
case in April 1928. More recently, The International Court of Justice decided in
December 2002 in favour of Malaysia and against Indonesia in relation to ownership
over Pulau Ligitan and Pulau Sipadan for similar reasons. The court applied the test of
evidence of activities evidencing an actual, continued exercise of authority over the
islands, i.e., the intention and will to act as sovereign. It found that Malaysia had
engaged in a regular pattern of state-sponsored activities revealing an intention to
exercise state functions in relation to the islands and which were not opposed by
Indonesia15.

15 Leszek

Buszynsk, The South China Sea: Avenues Towards a Resolution of the Issue
___________________________ .

Existing laws defining the national territory, include: Republic Act No. 3046: An
Act to Define the Baselines of the Territorial Sea of the Philippines (1961); Republic Act
No. 5446: An Act to Amend Section One of R.A. 3046 (1968); Presidential Proclamation
No. 370: Declaring as Subject to the Jurisdiction and Control of the Republic of the
Philippines All Mineral and Other Natural Resources in the Continental Shelf of the
Philippines (1968); Presidential Decree No. 1596: Declaring Certain Areas Part of the
Philippine Territory and Providing for their Government and Administration (1978);
Presidential Decree No. 1599: Establishing an Exclusive Economic Zone and for Other
Purposes (1978); and (6) Republic Act No. 9522, Republic Act No. 9522, An Act to
Amend Certain Provisions of Republic Act No. 3046, as amended by Republic Act No.
5446, to Define the Archipelagic Baselines of the Philippines, and for other purposes
(2009).16

Republic Act No. 952217, which amends the Philippine Baselines law to make it
compliant with the UNCLOS III included the Scarborough Shoal as part of the regime of
islands of the Philippines. The baselines law states:

Bautista, Lowell B. (December 2011). "PHILIPPINE TERRITORIAL BOUNDARIES:


INTERNAL TENSIONS, COLONIAL BAGGAGE, AMBIVALENT CONFORMITY". JATI Journal
of
Southeast
Asian
Studies
16:
3553.
http://umrefjournal.um.edu.my/filebank/published_article/3162/035-053%20Lowell
%20B.%20Bautista-Philippine%20Territorial,%20JATI%20VOL16,%202011%20new.pdf.
16

An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by


Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for
Other Purposes, March 10, 2009.
17

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.

THE CONSTITUTIONALITY OF
RA 9522 : PROF. MERLIN
MAGALLONA ET AL., VS HON. EDUARDO ERMITA ET AL., G.R. NO.
18716718

This case assailed the constitutionality of Republic Act 9522 adjusting the
countrys archipelagic baselines and classifying the baseline regime of nearby
territories. In March 2009, Congress amended RA 3046 by enacting RA 9522. The
change was prompted by the need to make RA 3046 compliant with the terms of the
United Nations Convention on the Law of the Sea (UNCLOS III), which the Philippines
ratified on 27 February 1984. Among others, UNCLOS III prescribes the water-land
ratio, length, and contour of baselines of archipelagic States like the Philippines and
sets the deadline for the filing of application for the extended continental shelf.
Complying with these requirements, RA 9522 shortened one baseline, optimized the
location of some basepoints around the Philippine archipelago and classified adjacent
18 Merlin

Magallona et al., vs Hon. Eduardo Ermita,et.al., G.R. No. 187167 decided on


August 16, 2011, the Supreme Court affirmed the constitutionality of RA 9522.

territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as
"regimes of islands" whose islands generate their own applicable maritime zones.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the
territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical
miles from the baselines], exclusive economic zone [200 nautical miles from the
baselines]), and continental shelves that UNCLOS III delimits. UNCLOS III was the
culmination of decades-long negotiations among United Nations members to codify
norms regulating the conduct of States in the worlds oceans and submarine areas,
recognizing coastal and archipelagic States graduated authority over a limited span of
waters and submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III
States parties to mark-out specific basepoints along their coasts from which baselines
are drawn, either straight or contoured, to serve as geographic starting points to
measure the breadth of the maritime zones and continental shelf. Article 48 of UNCLOS
III on archipelagic States is clear:
Article 48. Measurement of the breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the continental shelf.
The breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf shall be measured from

archipelagic baselines drawn in accordance with article 47. (Emphasis


supplied)

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III
States parties to delimit with precision the extent of their maritime zones and continental
shelves. In turn, this gives notice to the rest of the international community of the scope
of the maritime space and submarine areas within which States parties exercise treatybased rights, namely, the exercise of sovereignty over territorial waters (Article 2), the
jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous
zone (Article 33), and the right to exploit the living and non-living resources in the
exclusive economic zone (Article 56) and continental shelf (Article 77).

UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription, not by executing multilateral treaties on
the regulations of sea-use rights or enacting statutes to comply with the treatys terms to
delimit maritime zones and continental shelves. Territorial claims to land features are
outside UNCLOS III, and are instead governed by the rules on general international law.

Petitioners assertion of loss of "about 15,000 square nautical miles of territorial


waters" under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA

9522, by optimizing the location of basepoints, increased the Philippines total maritime
space (covering its internal waters, territorial sea and exclusive economic zone) by
145,216 square nautical miles.

Although the Philippines has consistently claimed sovereignty over the KIG and
the Scarborough Shoal for several decades, these outlying areas are located at an
appreciable distance from the nearest shoreline of the Philippine archipelago, such that
any straight baseline loped around them from the nearest basepoint will inevitably
"depart to an appreciable extent from the general configuration of the archipelago."

The principal sponsor of RA 9522 in the Senate, Senator Miriam DefensorSantiago, took pains to emphasize the foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[]
the Spratlys and the Scarborough Shoal are outside our archipelagic
baseline because if we put them inside our baselines we might be
accused of violating the provision of international law which states: "The
drawing of such baseline shall not depart to any appreciable extent from
the general configuration of the archipelago." So sa loob ng ating
baseline, dapat magkalapit ang mga islands. Dahil malayo ang
Scarborough Shoal, hindi natin masasabing malapit sila sa atin although
we are still allowed by international law to claim them as our own.

This is called contested islands outside our configuration. We see that our
archipelago is defined by the orange line which [we] call[] archipelagic
baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is
Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group
or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa
natin ang dating archipelagic baselines para lamang masama itong
dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng
United Nations because of the rule that it should follow the natural
configuration of the archipelago. (Emphasis supplied)

Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs
limits. The need to shorten this baseline, and in addition, to optimize the location of
basepoints using current maps, became imperative as discussed by the respondents.

The amendment of the baselines law was necessary to enable the Philippines to
draw the outer limits of its maritime zones including the extended continental shelf in the
manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended
by R.A. 5446, the baselines suffer from some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock
Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds the
maximum length allowed under Article 47(2) of the [UNCLOS III], which
states that "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."
2. The selection of basepoints is not optimal. At least 9 basepoints can be
skipped or deleted from the baselines system. This will enclose an
additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not
established by geodetic survey methods. Accordingly, some of the points,
particularly along the west coasts of Luzon down to Palawan were later
found to be located either inland or on water, not on low-water line and
drying reefs as prescribed by Article 47.
Hence, far from surrendering the Philippines claim over the KIG and the
Scarborough Shoal, Congress decision to classify the KIG and the Scarborough Shoal
as "Regime[s] of Islands under the Republic of the Philippines consistent with Article
121" of UNCLOS III manifests the Philippine States responsible observance of its pacta
sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any
"naturally formed area of land, surrounded by water, which is above water at high tide,"
such as portions of the KIG, qualifies under the category of "regime of islands," whose
islands generate their own applicable maritime zones.

DEFINITION OF TERMS

Archipelagic State means a state constituted wholly by one or more archipelago


and may include other islands.19

Dispute is a disagreement on a point of law or fact, a conflict of legal views or


interests between two persons. 20 For purposes of this research, this will refer to the
conflicting claims of the Peoples Republic of China and the Philippines on the
Scarborough dispute.
International dispute are those in which the rivaling claims are based on
international law, particularly with the parties being subjects of international law. 21
International dispute settlement is present when the competent body or
mechanism is constituted under and functions according to international, not purely
international rules22.
Regime of Islands is covered by Article 121 of the UNCLOS, which refer to an
island as naturally formed area of land, surrounded by water, which is above water at
high tide.
Dispute Resolution mechanisms refer to those modes and means employed to
reach settlement of the dispute.

Article 46(a), UNCLOS


As Defined by the Permanent Court of International Justice in the Mavrommatis
Palestine Concessions Case(1924) cited in Anne Peters, International Dispute
Settlement: A Network of Cooperational Duties.
21 Ibid p. 3
22 Ibid. p.3-4.
19
20

Scarborough Shoal is that area in the South China Sea which is also referred to
as Bajo de Masinloc by the Philippines and considered as part of its regime of islands. It
is also being claimed by China as Huangyan Island.
Scarborough Shoal stand-off originated on April 8, 2012 when Philippine troops
arrested Chinese fishermen for poaching and illegal means of fishing in the high seas.
Sovereignty is an element of statehood, the quality of having supreme,
independent authority over a territory. It is referred to as the freedom of the state from
outside control in the conduct of its internal and external affairs 23.
Territory refers to a geographical area belonging to or under the jurisdiction of a
governmental authority.

THE ALLEGATIONS AND BASIS IN SUPPORT OF


REPUBLIC OF CHINAS (PRC) CLAIMS

PEOPLES

The government of the China maintains that it exercises sovereignty 24 over the
Scarborough Shoal as referred to by it as Huangyan island, based on the following
reasons:

Jose Agaton R. Sibal, (1996) Philippine Legal Encyclopedia, Quezon City:Central


Law Books., p. 969
24 This was based on the official statements of the Embassy of the Peoples Republic
of China in the Philippines as published in the Philippines, and as published in the
website
China has sovereignty over Huangyan Island, http://ph.chinaembassy.org/eng/xwfb/t939694.htm retrieved on October 20, 2012 3:34pm
23

(1) China started official astronomical surveying on Huangyan Island at least back in
the 13th century.
(2) In 1935, the Chinese government officially released the name list of South
China Sea islands. Huangyan Island, then named Scarborough Shoal, was included as
a part of Zhongsha Islands in China's territory. In 1947, the Chinese government
released a new name list of South China Sea Islands, in which Scarborough Shoal was
included and renamed Minzhu (Democratic) Reef. In 1983, the Chinese government
released again a name list of South China Sea Islands, which use Huangyan Island as
the standard name for the island and Democratic Reef as an alternative name for it.
All the official maps published by the Chinese government of different periods
marked Huangyan Island as a part of China's territory.
(3) Many scientific expeditions to Huangyan Island have been organized by
Chinese government. In October 1977 and June 1978, members of South China Sea
Institute of Oceanology under the Chinese Academy of Sciences conducted scientific
research on the island respectively. In April 1985, a comprehensive science expedition
on Huangyan Island was organized by Nanhai Suboffice of State Oceanic
Administration of China. In 1994, 1995 and 1997, radio amateurs made radio expedition
on Huangyan Island three times with the approval of Chinese government.
The government of China further states that Scarborough Shoal is not part of
Philippine territory, with the following ratiocination:

(1) The Treaty of Paris (1898), the treaty of Washington (1900) and the treaty
between Great Britain and the United States (1930) clearly delineated the limit of the
Philippine territory and Huangyan Island is outside this limit. The 1961 Republic Act No.
3046 and the 1968 Republic Act No. 5446 of the Philippines reaffirmed the Philippine
territorial limits and Huangyan Island was not included. Neither was it used as a base
point of baseline for measuring the breadth of the territorial sea of the Philippines.
(2) The then Philippine ambassador to Germany clearly stated in his letter to a
German radio amateur on February 5, 1900 that Huangyan Island "did not fall within the
territorial sovereignty of the Philippines".
The document issued by the National Mapping and Resource Information
Authority of the Philippines to the American Radio Relay League on October 18, 1994
also confirmed that the Philippine territorial limits and sovereignty were stipulated by
Article 3 of the Treaty of Paris (1898) and that Huangyan Island " lies just outside the
territorial boundaries of the Philippines."
(3) Until 2011, official maps published in the Philippines still indicated that
Huangyan Island is outside the Philippine territorial limit.

On its arguments that Scarborough Shoal is part of its territory 25, PRC traces its
territorial claim, to wit:
The following arguments were taken from Some Basic Facts on China's soverignty
over Huangyan Island (2012/04/13) published by the Chinese Embassy in the
Philippines retrieved from http://ph.china-embassy.org/eng/xwfb/t922578.htm on
October 20, 2012, 3:10PM
25

Huangyan Island was first discovered and drew into China's map in China's Yuan
Dynasty (1271-1368AD). In 1279, Chinese astronomer Guo Shoujing performed
surveying of the seas around China for Kublai Khan, and Huangyan Island was chosen
as the point in the South China Sea.

In January 1935, Map Verification Committee of the 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 was included as a part of Zhongsha Islands into Chinese territory as
the name of Scarborough Shoal. In October 1947, Chinese government announced the
new namelist of South China Sea Islands, in which Scarborough Shoal was included
and renamed as Democratic Reef as a part of Zhongsha Islands. In 1983, China Board
on Geograpic Names released Geographic Names of Some of South China Sea
Islands, which decided to use Huangyan Island as the standard name of the island and
Democratic Reef as alternative name. All the official maps published by Chinese
governments of different periods marked Huanyan Island as Chinese territory.
Huangyan Island has been consistently under administration of China's Guangdong
Province first and Hainan Province later. China's sovereignty over Huangyan Island
have been declared in all the government announcements and statements on South
China Sea. All of these happened long before the United Nations Convention on the
Law of the Sea (UNCLOS) came into force in 1994.

On the argument that the Scarborough Shoal is not included in the territory of the
Philippines the PRC further argued that:

The Philippine territory is set by a series of international treaties, none of which


involves Huangyan Island. the Treaty of Paris(1898), the Treaty of Washington(1900)
and the Treaty with Great Britain (1930) state clearly that west limit of the Philippines
territory is 118th degree meridian of longitude east of Greenwich, while the Huangyan
Island is obviously outside this limits(1508'-1514'N, 117 44'-11748'E). The 1935
Constitution of the Republic of the Philippines, the 1946 Treaty of General Relations
between the United States of America and the Republic of the Philippines the 1952
U.S.-Philippines Mutual Defense Treaty, the 1961 Republic Act No.3046 and the 1968
Republic Act. No. 5446 have reaffirmed the legal effects of the above-mentioned three
treaties and once again expressively defined the Philippine territorial limits, the baseline
points and baseline of the territorial waters, which have not included the Huangyan
Island. The Philippine maps published in 1981 and 1984 also indicate that Huangyan is
outside the Philippine territorial limits. The above facts fully prove that Huangyan Island
is outside the scope of Philippine territory according to China.

2.1.3. THE BASIS OF THE SOVEREIGN CLAIMS OF THE REPUBLIC OF


THE PHILIPPINES (RP)

The government of the Republic of the Philippines on the other hand, argues the
following as its position26:
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. 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 three
(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
NM from the nearest coast of Luzon and approximately 472 NM from the nearest coast
of

China.

Bajo

de

Masinloc

is

located

approximately

along

latitude

1508N and longitude 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
EEZ and 200-NM continental shelf (CS) of the Philippines.
26 Philippine

position on Bajo de Masinloc (Scarborough Shoal) and the waters within its
vicinity published at the Official Gazette of the Philippines website. Retrieved at
http://www.gov.ph/2012/04/18/philippine-position-on-bajo-de-masinloc-and-the-waterswithin-its-vicinity/ October 20, 2012 3:54PM.

A distinction has to be made between the rock features of Bajo de Masinloc and
the larger 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
water and continental shelf.

The Republic of the Philippines is of the view that the rock features of
Scarborough Shoal 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.

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 the Palmas 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
been historically 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.

The RP also commented on several arguments raised by PRC, in this published


question and answers form, to wit:

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?

The RP replies that Chinese assertion based on historical claims must be


substantiated by a clear historic title. It should be noted that under public international
law, historical claims are 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 open, continuous, adverse or,

be

satisfied
in

such
the

as

that
concept

the

usage
of

must
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.

What about China claiming Bajo de Masinloc as traditional fishing waters of


Chinese fishermen?

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 socalled fishermen can be hardly described as fishing. The evidence culled by the
Philippine Navy showed clearly that these are poaching activities involving the
harvesting of endangered marine species, which is illegal in the Philippines and illegal
under international law, specifically the CITES.

The RP likewise declared that it has sovereignty on waters outside and around
Bajo de Masinloc as established 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.
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?

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 200NM 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,
and manage 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 200NM EEZ of the Philippines that are law enforcement in nature is obviously
inconsistent with 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

likewise violated the sovereign rights of the Philippines under UNCLOS.

have