ABESAMIS, MARAYA LARA D.

2016400080

THE SCARBOROUGH SHOAL

I. CHINA’S ARGUMENTS AND BASIS ON CLAIMS OVER SCARBOROUGH SHOAL

Starting a ruckus over the past few years, China seeks to claim ownership over
the territory of Scarborough Shoal. The Chinese Government has reiterated that it
will neither accept nor participate in the arbitration thus initiated by the Philippines.
Allegedly, they have historical claims over such territory evidenced by their ancient
maps especially by the nine-dash line. The nine-dash line is based on a map originally
issued by the People's Republic of China in 1947 which showed lines forming a
U-shape in the South China sea. China alleged that their rights over territories
affected by the nine-dash line goes back century because of this map. They declared
sovereignty and rights over the maritime resources in the islands and reefs within
such lines. Such line stretches hundreds of miles south and east from its most

southerly province of Hainan. “Chinese activities in the South China Sea date back to

over 2,000 years ago. China was the first country to discover, name, explore and
exploit the resources of the South China Sea Islands and the first to continuously

exercise sovereign powers over them,” they added in their position paper for the

case in dispute.

Furthermore, the People’s Republic of China repeatedly questioned the

jurisdiction of the Arbitral Tribunal due to its rejection to arbitration and the
applicability of the United Nations Convention on the Law of the Sea to the case at
bar as its subject matter is one of territorial sovereignty over maritime features in
South China Sea. Adding along with the rising tension between several claims over
the South China Sea, China decided to build islands and naval patrols in the
Scarborough Shoal. Seemingly, the People's Republic of China does not recognize the
principles of the Exclusive Economic Zone and the coverage of the territorial seas.

II. PHILIPPINES’ ARGUMENTS AND BASIS ON CLAIMS OVER SCARBOROUGH SHOAL

The Philippines’ claims on the other hand is based on the International Law
regarding the Exclusive Economic Zone which extends 200 nautical miles from the
low water mark of the coastal state. Justice Antonio Carpio discussed several points
which puts the International Law in favor of the Philippines. Allegedly, Scarborough
Shoal or “Panatag Shoal,” has been part of the Philippines since the 1960’s as it was
used as an impact range for American and Philippine planes on joint military
exercises. During these exercises, the People's Republic of China or any States have
never been in protest. “If the Philippines can bomb a shoal repeatedly over decades
without any protest from neighboring states, it must have sovereignty over that
shoal,” he said.

Justice Carpio questions the validity of the claim of the People’s Republic of
China over such a great territory, almost 90 percent of the millions of square
kilometer of vast seas, the South China Sea. Furthermore, he discussed about the
applicability of the UNCLOS to the case in dispute. He said that the UNCLOS
governs the use of the following maritime zones: (a) internal waters or archipelagic
waters, the landward waters adjacent to the territorial sea; (b) territorial sea, an
area of 12 NM from the baselines along the coast; (c) exclusive economic zone (EEZ),
an area of 200 NM from the baselines; (d) extended continental shelf (ECS), an
additional area of 150 NM from the outer limits of the EEZ; and (e) the AREA, which
is the common heritage of mankind, the maritime zone beyond the ECS. UNCLOS
governs maritime disputes on overlapping maritime zones like overlapping territorial
seas, EEZs and ECSs. UNCLOS does not govern territorial disputes, which are
sovereignty or ownership issues over land territory like islands or rocks above water
at high tide. Rocks that are below water, or submerged, at high tide are not
considered land and thus disputes over such rocks are governed by UNCLOS. This is
highly in contrast to the statement released by the People’s Republic of China that
UNCLOS is not applicable in the case at bar. According to him further, since the case
at bar is a maritime dispute covered by the UNCLOS, the parties may be subject to
compulsory arbitration.

Justice Carpio discussed that the claim of China based on their alleged historical
rights to the waters enclosed by the nine-dash line has no basis as UNCLOS has
already extinguished the historical rights of other states that comes within the 200
NM Exclusive Economic Zone of other States. According to the UNCLOS, historical
rights may be claimed only over internal waters or territorial seas. The rule of
international law provides that in order for a sovereign to claim it s historical rights
over a portion of a territory, it must satisfy the following conditions: one, the state
must formally announce to the international community such claim to internal
waters or territorial sea, clearly specifying the extent 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 to the exercise of such authority. Clearly, the
People’s Republic of China has failed to satisfy these requirements especially when
they have been claiming for such a long time that the Hainan is the borderline of its
territory.

III. APPLICABILITY OF THE PRINCIPLES OF INTERNATIONAL LAW

 With the People’s Republic of China taking chances over the Scarborough Shoal,
the most that it can base its claim over the same is discovery and occupation if they
really had rich history that flourished over the area. Nonetheless, we can see that
even the requirements for a valid acquisition of territory based on discovery and
occupation were not satisfied. The requirements for this basis is that first, such State
has acquired over the terra nullius or that there has never been any State or
community with organized politics which occupies the same and lastly, such State
claiming sovereignty over the same must exercise effective control. All of these were
left unsatisfied by China. They have exercised no effective control over the area.

Since the China has not satisfied the requirements, the principle of contiguity
may be applied. According to this principle, “contiguous zones” or territories
whether land, areal, or maritime which are near to a State and well within its
territorial allocation including the contiguous zone and exclusive economic zone are
considered under such State’s sovereign. The only exception to this rule is the
principle of discovery and occupation. Which was the same thing that was applied to
the case of Island of Las Palmas. Thus, by applying the principle of contiguity, the
Republic of the Philippines has the right over Scarborough Shoal as it is within the
200 NM (EEZ) from the low water mark. The Philippines therefore has the exclusive
right for the exploitation of the resources that may be found in the Scarborough
Shoal or any territory within the EEZ of the Republic of the Philippines. The People’s
Republic of China, by putting up islands and naval patrols over the area, has no right
whatsoever in doing the the same.