Resolving the Scarborough Shoal Dispute: “Thick” or “Thin”?

By Romel Regalado Bagares, Esq.

The recent incident at the Scarborough shoal is no doubt the most brazen move thus far by the region’s certified Biggest Bully – China – in the escalating history of its altercation with the Philippines over territory.

From reports, it appears that the Philippine Navy’s BRP Gregorio Del Pilar had discovered eight Chinese fishing vessels poaching large quantities of endangered marine species, including live sharks, at the shoal. The resulting standoff – and our seeming inability to act decisively on a critical national security concern –further showed the vulnerabilities of the Philippines in a dispute over territory with an emergent world economic and military power.

But there are two ways of looking at the territorial dispute, which I will call the “thick” and the “thin” approaches. Our new baselines law, Republic Act 9522,  classifies Scarborough shoal as a regime of islands under Art. 121 of the Law of the Sea Convention (LOSC). Under LOSC, a regime of islands has its own territorial sea, Exclusive Economic Zone (EEZ) and Continental Shelf.

Obviously,  RA 9522 assumes that the shoal is part of Philippine territory in the fullest sense of the term. From that perspective, the reckoning point therefore is the shoal as an island grafted into Philippine territory.

It is what I call the thick approach, precisely because the claim to be made from it is full sovereignty as understood in the national territory clause of the Constitution. Since it is a regime of islands, a case can well be made that what the Chinese fishing vessels did was violate its territorial sea, given the facts available to us. Given the shoal’s classification under RA 9522,  it would appear that the Chinese had violated its territorial sea, which extends from its coast up to a distance of 12 nautical miles.

The thin approach is what the Department of Foreign Affairs (DFA) has been saying all this time: that the Chinese violated our EEZ, reckoned from the base points off the coast of Zambales, as from those points, the shoal, which is about 137 nautical miles away from Palauig town in the province, no doubt falls within the said maritime regime. This approach is so-called, because under the EEZ, the Philippines has “sovereign rights” to the marine resources found in the area, to the exclusion of all the others.

The regime of sovereign rights is not the same as full sovereignty. It is limited only to the economic exploitation of resources found in the shoal, subject to certain conditions, and cannot be equated with the full exercise of sovereignty control of every piece and bit of territory there in the concept of an owner. It is otherwise known as “protective jurisdiction.”

But either way – thick or thin – we may now have a way to take the Chinese to compulsory arbitration with a final and binding judgment, which they have not been keen on doing.

The thin approach does not even require the Philippines to assert that the shoal is a regime of islands. The shoal may well be no more than rocks or coral reefs but even China recognizes that the area falls within the Philippine EEZ, except that they maintain that the Philippine claim to sovereign rights falls in the face of China’s mainly historic title to the shoal (which claims are highly doubtful, from the point of view of contemporary international law, which generally dismisses historic title as ineffective).

What the DFA doesn’t seem to realize, Prof. Harry Roque notes, is that the issues surrounding the shoal are different from those in the Spratlys.

Unlike issues involving the exercise of sovereign rights, which are subject to the compulsory jurisdiction of the International Tribunal on the Law of the Sea (ITLOS), conflicting claims to both maritime and land territory – as what obtains in the Spratlys –  will require the consent of China to litigate.

“The point is,” says Prof. Roque,   “with the incursion of China in an undisputed maritime area under the sovereign right of the Philippines, we could avail of mandatory and compulsory jurisdiction of the UN’s ITLOS, which we could not otherwise resort to in the case of the Spratlys.”

The general principle in the LOSC is that any dispute over the interpretation or application of a provision of the treaty is subject to the system of compulsory  binding dispute settlement. Thus, by becoming a party to it, State Parties consent to disputes being referred to adjudication or arbitration.

Not many people know that China is also party to the Law of the Sea Convention, except that on August 25, 2006,  it has invoked  the so-called art. 298 exception, which allows it to opt out of compulsory arbitration in cases of  disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction  as well as sea boundary delimitations, or those involving historic bays or titles.

However, China, under this declaration, cannot say that by virtue of the art. 298 exception, it cannot be dragged into an arbitration because the events at Scarborough shoal concerns a dispute on law enforcement activities in regard to the exercise of sovereign rights. This is because it has already conceded that the shoal falls within the Philippine EEZ and is well beyond its own EEZ.

Under art. 297 (3) of the LOSC,  it is the coastal state, in this case, the Philippines, which has the option  “ to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations.” That right does not belong to the offending state, China.

Indeed, in its declaration on June 7, 1996 – the date it ratified the LOSC – China announced that in accordance with the Law of the Sea, “the People’s Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf.” The shoal is already beyond the scope of this declaration because it has already conceded that it lies within our EEZ.

According to Prof. Roque, this may well be our strongest suit, since the issue involved is cut-and-dried: did China, which has accepted the shoal in question as part of the Philippine EEZ, violate the Philippines’ sovereign rights over the waters surrounding the shoal?

Meanwhile, the “thick” approach — which is also favored by some Filipino Law of the Sea experts like my  law school contemporary, Dr. Lowell Bautista, a research fellow at the Australian Centre for Ocean Resources and Security —  is anchored on the classification of the shoal as a regime of islands.  The Philippines may take China to a compulsory arbitration with the ITLOS under Art. 288  of the LOSC on a question of interpretation: given the physical configuration of the shoal, is it  in fact an island?

The answer to the question will open the door for further clarification on which rights the Philippines would be entitled to claim over the area. One advantage to this approach is that even the Chinese themselves consider it an island, as they in fact, call it the Huangyan Island. So they are already bound by that characterization, and would not be able to effectively dispute an affirmative answer to the question by the international tribunal.

Note that resorting to the thin approach does not necessarily mean waiving our claims to the shoal as an island squarely belonging to the Philippines as its owner. The two approaches are not mutually exclusive.

In either case, we can immediately sue China before the ITLOS, with the added incentive that the international tribunal has the power to issue provisional remedies, such as prohibiting any of the parties from doing something that would disturb the status quo while the case is being heard.

But the obvious limitation to the thick approach is that resolving the question is only the first step;  it does not really address the question of ownership of the island. For that, we will need more than the Law of the Sea; following the ruling of arbitrator Mr. Max Huber in the landmark Las Palmas arbitration, we will have to resort to general international law requirements for establishing ownership, in particular the various indicia of “effective occupation”, such as enforcement of fishery laws, customs and taxation management, attachment to local government control and the like.

Of course, the next question is, given the bullying tactics of China, how do we establish effective occupation over the shoal – is the P-Noy administration up to the challenge? Or is it even willing to do what past administrations have failed to do:  sue China before the ITLOS on even just a question of sovereign rights over the shoal?

*(4/15/12) the author is Executive Director of the Center for International Law, an NGO dedicated to the promotion of the Rule of Law in the Philippines and Asia through binding international legal norms, and a professorial lecturer in public and private international law at the Lyceum Philippines University College of Law.

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2 Comments

Filed under International Court of Justice, International Law, Scarborough Shoal, UNCLOS

2 responses to “Resolving the Scarborough Shoal Dispute: “Thick” or “Thin”?

  1. BOYCOTT CHINESE PRODUCTS!
    ITS THE MOST ECONOMICAL WAY TO SAY KEEP OUT!
    To the people of the world, I call for the spirit of the innate-vigilance in every soul that reads this article to be with us; Pilipinos. This time, i will ask not of your financial support for armory or charity as what our pity politicians does. I do not ask for your physical support or presence in any global protest my countrymen is cooking in every state of your country. I am here to ask for the greatest, most noble, creative and diplomatic way of living a “china-free” life. All things in the world is practically made in china, it is their power over us. We are at an economic war against the greatest tyrant ever. an old friend which use to sell us goods and services dating back so long ago that their ancient emperors will be awakened of this abomination they’ve created.

    We have to act now or else, every china product you buy will be paying for the very bullets that will punch a hole in the head of my countrymen including our siblings’, parents’ and children’ when war arises. I humbly know that we Pilipinos are economically weak, my people has their spirit broken by poverty and false sovereignty; but it doesn’t mean that we cannot call for a global support and warn everybody else of the possible things that may happen. as you see, if the Chinese government can do it to us, then they can do it to your country as well. Since I cannot go to the streets to protest. i’ll endure from consuming and buying chinese-labeled foods from supermarkets and won’t even buy from their local chinese merchants here even just for gift purposes (chinatown, divisoria, tutuban & etc). if all pinoys, or those at hearts and compassionate to this call (FROM ALL OVER THE GLOBE) will sacrifice by eating locally produced foods and buy local products, we will not just maintain the money (foreign reserves, gold reserves) within our circulation, we can also show the world that its possible to boycott the fruits of their labor. by such, their government will significantly feel the punch.

    compute how much things you have in your house that is made in china and realise how generous you have been to them. its time to stop supporting them. remember, their power comes from every reserves our central bank pays the IMF for the products and services we acquire from them. i know its hard to do for now, but you will find it easier as time goes by.

    Lets do our own best ways to be financially, economically and patriotically responsible for our country. a substantial local boycott of these chinese imports may not only weaken their economy but will let their own kind (the chinese expats) express their financial woes to their government. Even if china controls 97% of rare earth market, it doesn’t change the fact that china isn’t the world. even the greatest oppressors has been tumbled by the majority. it is historically proven and it all happened because of simple individual belief and faith. faith and belief so individually weak like a strand of stick in a bunch of sweeper, but strong enough to sweep a land of dirt if combined. have you not learned how the people has won over the country from the late dictator? its not because of people power in edsa, its just a visual and final demonstration. its because of the people’s voluntary boycott to his cronies and business allies which had the voice to command the rise and fall of a ruler. i have revised this for so many times because your support and those with you counts. you are an important part of the sweeper we want to create to clean the world of these corrupt power trippers.
    Hence,
    1.) They (chinese expats & businessmen) will be heard because of our boycott.
    -these are politically influential people which voices can crumble or build governments.
    -Our purchases may be statistically insignificant for them but if we convice everybody and the world to stop patronizing their produces then it will be a powerful spear that may pierce their ambitious flight. they have soared with their belief, only our belief and faith can decide their fate.
    2.) Our Central Bank Reserves will rise.
    -due to smaller imports to pay with gold or foreign reserve
    3.) We’ll have a better credit standing in IMF
    -HIgher budget for armory due to higher Bank Reserves that will avail us more defense.
    4.) We buy local products which will help the majority of producers.
    -Supermarkets has cheaper produces compared to the local market but i prefer to buy in local market because the profit goes to those who needs my money; not for the benefit of the complicated graphical lines defined by PSE
    5.) We will be free from consumerism that has long withheld our ancestors.
    -You think you need chinese products? look better around and see the most creative of ways to live a chinese-free-life. consumerism blinds you; it makes you think you need the things you actually want. believe me, im prvately hired by companies to produce schemes to market their products.
    6.) They will realise the toll of threatening their cash cows.
    -hence, will think twice nextime

    -Karat Chef
    ….

  2. stephaney L. Flores

    yeah your right: we Filipinos, we should fight for our rights because Scarborough shoal is ours/… WE SHOULD NEVER PATRONIZE CHINESE PRODUCTS COZ CHINESE ARE THREATS IN PHILIPPINE INDUSTRY….:)

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