Analysis: Philippines’ weak claims over Scarborough Shoal

Scarborough Shoal is said to be abound of wealth. By historic claim, it is indisputable that China has sovereignty and jurisdiction over it. Will the Philippines succeed in disputing it by the principle of effective exercise of jurisdiction and occupation when in fact China has exercised jurisdiction over the years? (File Photo Retrieved from: solartv.ph)

Scarborough Shoal, indisputably, belongs to China. But, what is more controversial than that?

There are more controversial issues or more demanding “naked facts” than stirring the storm of controversy.  These are national security and economic or political relations with neighboring sovereign states such as Malaysia, Vietnam, China, etc. in the Southeast Asian region that should rather be strengthened.

However, the disputed islands in South China Sea bear witness as the disputing sovereign states uncover their ambitions and loyalty to a Giant kingdom. For the Philippines alone, does it worth the economic sustenance and other national security Filipinos will be plagued when the Philippine government continue asserting their weak points over the Scarborough Shoal?

Unfortunately these past days, the position of the Philippines to rather exercise “self-restraint” when entangled in a certain dispute, to preserve peace and stability, among others,  has instigated a more provocative tactical approach to the controversy.  Does the Philippine government think and hope that by constant provocation China will give in at last? Will the Philippines succeed in disputing it under principles of public international law, especially through UNCLOS?

In my previous commentary-analysis,China-Philippines Scarborough Shoal Dispute: Will there be another Falklands War in Asia?”, the bases of claims of both disputing sovereign states were introduced and exposed for a helpful, honest review. Now, I will try reiterating the grassroots of both states in claiming over the Scarborough Shoal in South China Sea.

The Philippines’ Assertions

1. According to the Department of Foreign Affairs, the Philippine sovereignty and jurisdiction over the Scarborough Shoal is neither premised under the Treaty of Paris, nor on proximity but on certain principles of public international law.

The Philippines cited the Palmas Island Case, in which the Netherlands has sovereignty over the island on the basis of effective exercise of jurisdiction.  In relation to this, the Philippines claimed that:

The Philippines has exercised both effective occupation and effective jurisdiction over the Scarborough Shoal since its independence.

2. The Philippine sovereignty over the Scarborough Shoal is based on sovereign rights under UNCLOS or United Nations Convention on the Law of the Sea.

In my previous commentary-analysis, I concluded that China has sovereignty over Scarborough Shoal on the basis of historic claim and constant claim or assertion of sovereignty over the years and counting.  Not only that, I also concluded that this issue to be settled based on UNCLOS provisions might be unwise, incompetent, and let me add, may be self-serving to the Philippines but adversarial to China. Besides, the claimant-parties have expressed reservations upon their ratification of the UNCLOS declaring that such signing shall not in any manner affect the sovereign rights of their respective states.  Then, who is now fooling around?

Weak Points of the Philippines’ Assertions

First, the Philippines should not be “too shy” to use the Treaty of Paris as basis of territorial claim. Why? For all we know, the Treaty of Paris has long been recognized globally so long before the birth of UNCLOS.

Unfortunately, the 1987 Philippine Constitution (including those prior to 1987 Philipine Constitution)  has not become too effective in laying out its territorial waters even until today when the former President Gloria Macapagal-Arroyo enacted the Philippine Baselines Law or the RA 9522 in 2009.  Rather, this enacted law classified the Spratlys and Scarborough Shoal as “regimes of islands”. Then, what a windfall trick? Who is now on the verge of uneducated doubts?

When the Philippines classified Scarborough Shoal as “regime of islands”, should this imply that Philippines had no at all or became hesitant to exercise full sovereign rights over Scarborough Shoal even if classifying it as it was meant, likewise, an exercise of sovereignty and jurisdiction over it? Yes, it should be implied as that may be. Then, it deprives the Philippines to redeem exclusive economic zone or EEZ and continental shelf, if the Article 121 (Regime of Islands) of UNCLOS is defined strictly.

Consequently, the moment the Philippines classifies Scarborough Shoal under “regime of islands” its sovereignty and jurisdiction over the classified island in the same way loses. Because from the standpoint of a sovereign state being “guilty of acquiescenceamidst the constant claim of China of its jurisdiction over the Scarborough Shoal over the years and based on the 1992 Law on the Territorial Sea and the Contiguous Zone that reaffirmed China’s claim way back in 1947, it can be deduced that the Philippines either emphatically left that issue to UNCLOS or impliedly subscribed to China’s long-standing claim over Scarborough Shoal.

Furthermore, over the years before 2009, the conduct of the Philippines with regard to Scarborough Shoal has revealed a humble admission, implied recognition, and outright acquiescence to the long-standing claim of China over the islands in South China Sea, including the Scarborough Shoal.

Therefore, RA 9522 in 2009 is weak in asserting Philippine claim of jurisdiction and sovereignty over Scarborough Shoal. Furthermore, UNCLOS provision on “regime of islands” would simply become “moot and academic” because China over and over the years has already claimed sovereignty and jurisdiction over the disputed island — the Scarborough Shoal — very long before the UNCLOS ratification and these early years of active claim on the part of the Philippines.

Besides, UNCLOS provision on “regime of islands” is as vague as its being concise to interpret. Then, what’s the point in bringing up the issue to the international law such UNCLOS for it to settle down China-Philippines territorial dispute? Pointless.

Second, the Philippines should not be “too assuming, too confident” to claim effective occupation and jurisdiction over Scarborough Shoal, because name it, China has it over the years.

Moreover, the Philippines should not rely only on the Palmas Island Case because under international laws, it can not serve as warrant for the Philippines to expect for the same response to a related problem to win over the case by  just invoking the principle of effectiveness as far as sovereignty and jurisdiction over the disputed territory is concerned.

Scarborough Shoal, including the rest of islands in South China Sea, has different determining factors, to be accurate, has intertwining, very complex understanding to decide jurisdiction over it. However, one thing is very clear not only to the Filipinos but to the international arena that China has been exercising, effectively displaying constant claim over the disputed territory so many years back.

As far as we know, the Philippines should be guided that China over the years and counting has exercised effective occupation and effective jurisdiction over the disputed area, as well.

Third, the Philippines asserted that its acquiescence must be affirmative. This is a weak defense.

Where in the hell you consider overdue acquiescence as positive or active in claiming jurisdiction when the other party has constantly been asserting it with the same claim for many years?

Overdue silence can not be equated to active, affirmative claim; nor the silent exercise of effective jurisdiction. When such international law considers it affirmative, there is a different, horrific story along the way we are sure of.

For over the years when China repeatedly, constantly claimed sovereignty and jurisdiction over the Scarborough Shoal, the world never heard of the Philippines ardently protesting China’s claim not until these early years. Is this the way we must consider it affirmative?

I believe that international communities have observed China’s strong claim over Scarborough Shoal. In fact, its 1992 Declaration affirmed their ardent claim in as early as 1947 and preserved their jurisdiction over it as early as the Yuan Dynasty in 1279.

Finally, the Philippines asserted to bring up the issue to the international tribunal in accordance with UNCLOS provisions.  This is self-serving as I have said in the preceding discussion. Because before the claimant-disputing parties ratified UNCLOS, they have already their Constitutions and Laws on territorial basis and both have expressed reservations.  Then, what’s the point? There is a point, anyway; it is an amicable settlement that would compromise each sovereign rights.

Supplemental Weak Points of the Philippine Claim

First,  surfaced ancient maps in as early as 1598 do not correlate to the Philippine claim at that period as official territorial breadth.  Rather, those ancient maps are documentary evidence of ancient expeditions and geographical representation of explorations and routes.  In fact, those ancient maps, if and only if they will be used as territorial evidence, they are tantamount to an affront to the Treaty of Paris, which clearly does not include Scarborough Shoal in the Philippine territory.

I would like to stress that the Philippines can not ignore the efficacy and the legality of the Treaty of Paris, including the 1987 Philippine Constitution on territorial emphasis that never clearly addressed the Scarborough Shoal as part of its territorial claim. The enacted 2009 Baseline law never clearly emphasized a legitimate claim of sovereignty over the Scarborough Shoal either; rather it was classified as “regime of islands”—very suggestive that the Philippines recognized its illegitimate claim of sovereignty and jurisdiction over those islands being classified.

Second, the 1916 Philippine Supreme Court decision pertaining to the Scarborough tragedy is with all due respect can not be construed as clear manifestation that the Philippines has long been exercising jurisdiction over the Scarborough Shoal.

According to raisarobles.com that Dr. Jay Batongbacal, a University of the Philippines law professor stated:

The lawsuit decided by the Philippines’ top court in 1916 – led by Filipino Chief Justice Cayetano Arellano – is clear evidence that we were exercising jurisdiction over the shoal and incidents on it during the American colonial period in the Philippines.

Dr. Jay Batongbacal, according to the blog, added:

This case is proof we are the ones responsible when it comes to shipwrecks on Scarborough.

Firstly, the shipwreck incident was happened during the American colonial period in the Philippines. Treaty of Paris exists. What the treaty does not say so about Philippine territorial waters, the incident can not supplant instant jurisdiction of a colony over what the treaty has specified.

Moreover, because the incident was happened during American colonial period in the Philippines, why the Philippines has to claim not America? Seriously because of proximity? Proximity does not guarantee  jurisdiction over a proximate territory.

Finally, should he (Dr. Batongbacal) is correct in his opinion, then, the Philippine claim of jurisdiction over Scarborough Shoal will jeopardize the legality of the Treaty of Paris on the Philippine territorial specification. How is it?

Secondly, the shipwreck incident was happened proximate to the Philippine territory.  It has become our standard of thinking that in every accident the first thing you think of are: what is the nearest safe place? Or, what is the nearest police station to inform about the accident?

The Philippines is the nearest island from the shipwreck incident that is why the Philippines was the first instance to investigate the incident.  It should be noted that during that period, international laws have not yet been polished and there maybe no such thing as Philippine laws during the time exist. Then, legitimate jurisdiction is as nominal as what is usual and common,

Moreover, the proximity of the incident that happened calls on the immediate position of the Philippines to respond to the incident.  But, this proximity and response can not be construed outright as having a territorial jurisdiction just because the responding entity has investigated and decided the case happened in that proximate place.  Call this as a call of time or chance.  Why? It is because of the Treaty of Paris that specifically delineated the Philippine territory, and the Philippines can not deny about it or set aside it, either.

I believe that for China-Philippines dispute to end, self-restraint and bilateral agreement between the conflicting sovereign states would be rightful and equitable to push through.  Cooperation and respect of history of every sovereign state can make a difference toward strengthening economic and political relations with all neighboring countries.

The Philippines has rich and very sacrosanct history in restoring democracy.  For China and other countries to deny such facts, Filipinos will have no longer confidence to face their identity.  The same will hold true to China when her neighbors challenged the veracity and integrity of her history.

Nobody allows to be deprived of historic domain. The cold silence of the Philippines pertaining to the disputed shoal over the years did only show Philippine recognition of China’s fervent claim over the Scarborough Shoal.

 

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25 Responses

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