SCARBORO SHOAL: PANATAG OR BAJO DE
MASINLOC PART OF PHL TERRITORY
MANILA, APRIL 21, 2012 (PHILSTAR)
(The following is the Philippine position on Bajo de Masinloc (Panatag)
and the waters within its vicinity. The Department of Foreign Affairs also
provides a background on the recent incident involving Philippine and Chinese
ships near the shoal as well as comments on Chinese claims.)
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 (NM)
Exclusive Economic Zone (EEZ) and Philippine Continental Shelf.
A Philippine Navy Surveillance aircraft monitored eight Chinese fishing
vessels anchored inside the Bajo de Masinloc (Panatag Shoal) on Sunday, April 8,
in the conduct of its maritime patrols and its enforcement of the Philippine
Fisheries Code and marine environment laws.
On April 10, 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 Masinloc's (Scarborough Shoal's) 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 15º08'
N and longitude 117º45'E. The rocks of Bajo de Masinloc are situated north of
the Spratlys.
Obviously therefore, the rocks of Bajo de Masinloc are also within the 200 NM
EEZ and 200 NM Continental Shelf (CS) of the Philippines.
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 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.
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.
Philippine sovereignty and jurisdiction over the rocks of Bajo de Masinloc
are 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 exercises 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 island may have been historically discovered by Spain and historically ceded
to the US 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, S.J. 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 US 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 flag pole 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 US Naval
Forces stationed in Subic Bay in Zambales for defence purposes. The Philippines
Department of Environment and Natural Resources together with the University of
the Philippines have 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
fully consistent with the Law of the Sea, Bajo de Masinloc's 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 in 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 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 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 one's 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 China's 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 claims that Bajo de Masinloc as traditional fishing waters
of Chinese fishermen?
Answer:
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 it 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 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 of endangered 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 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. In like manner, 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. Since 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 15º08' N and
longitude 117º45'E. It is approximately 124 NM miles 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 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
non-living, 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
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 fishermae 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
likewise violated the sovereign rights of the Philippines under UNCLOS.
Presence of Philippine-registered archeological vessel
The Philippine National Museum has been undertaking an official marine
archaeological survey in the vicinity of the Bajo de Masinloc.
The archaeological survey is being conducted by the Philippine National
Museum on board the Philippine-flag motor yacht M/Y Saranggani.
Chinese Maritime Surveillance vessels have been harassing the 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 side
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
towards a peaceful and diplomatic solution to the situation.
As the DFA works towards a diplomatic solution, the Philippine Coast Guard is
present in the area and is continuing to enforce relevant Philippine laws.
Geography of the Scarborough
Shoal
[Photo - Scarborough Shoal landsat image:
Location: South China Sea
Coordinates: 15°11′N 117°46′E
Archipelago: 150 square kilometres (58 sq mi)
Highest point: Nan Yan (南岩, meaning "South Rock" in Chinese) 3 metres (9.8
ft)
Claimed by
People's Republic of China
County: Administration Office for Xisha Islands, Zhongsha Islands and Nansha
Islands, Republic of China (Taiwan)
Municipality: Kaohsiung
Philippines
Province: Masinloc, Zambales
Demographic: Population - none
Location of the shoal.
The shoal forms a triangle-shaped chain of reefs and islands (but mostly
rocks) 55 kilometres (34 mi) around with an of area 150 square kilometers.
It has a lagoon with area of 130 km² and depth of about 15 metres (49 ft).
The shoal is a protrusion from a 3,500 m deep abyssal plain.
Several of the islands including "South Rock" are 1/2 m to 3 m high and many
of the reefs are just below water at high tide.
Near the mouth of the lagoon are the ruins of an iron tower, 8.3 m high. It
is about 123 miles (198 km) west of Subic Bay.
The nearest landmass is Palauig, Zambales, on Luzon Island in the
Philippines, 137 miles (220 km) away.
Activities in the surrounding area
The shoal and its surrounding area are rich fishing grounds.
A significant number of Chinese fishermen have been arrested by Philippine
officials in this area, particularly during 1998-2001.
Most arrests were for alleged using illegal methods of fishing and catching
endangered and protected species. [citation needed]
There are thick layers of guano lying on the rocks in the area. Several
Filipino-sponsored and Chinese-sponsored diving excursions and amateur ham radio
operations, DXpeditions (1994, 1995, 1997 and 2007), have been carried out in
the area.
Chief News Editor: Sol
Jose Vanzi
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