MEIKI JELL MERLIN (SCRIBD)

THIS IS COMPILATION OF RESEACH: RAMIFICATION OF SCARBOROUGH SHOAL CONSIST OF BACKGROUND, PHILIPPINE AND CHINA CLAIM, MAPS SCARBOROUGH SHOAL (Chinese name: Huangyan Island; pinyin: Hungyn Do; Philippine names: Bajo de Masinlc, Panatag Shoal, Karburo), more correctly described as a group of rocks or very small islands plus reef sin an atoll shape, rather than as ashoal ,is located between the Maccles field Bank and Luzon Island of the Philippines in the South China Sea. The shoal was named after the East India Company tea-trade ship Scarborough which was wrecked on one of its rocks with everyone perishing on board on 12 September 1784.

GEOGRAPHY: The shoal forms a triangle-shaped chain of reefs and rocks or very small islands 55 kilometres (34 mi) in circumference with a total area including shallow water areas of 150square kilometers. The shoal encompasses a shallow lagoon measuring 130 km and approximately 15 metres (49 ft) deep. The shoal is a protrusion from a 3,500 m deep abyssal plain. Several of the rocks or small 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, that was constructed by the Philippine Navyin 1965. To the east, the 5,000 -6,000 meter deep Manila Trench separates the shoal from the Philippine archipelago. Scarborough Shoal is about 123 miles (198 km) west of Subic Bay. The nearest landmass is Palauig ,Zambales, on Luzon Island in thePhilippines,137 miles (220 km) due east.

CLAIMS BY CHINA AND TAIWAN: The People's Republic of China and the Republic of China (Taiwan)claim that Chinese people discovered the shoal centuries ago and that there is a long history of Chinese fishing activity in the area. The shoal lies within the nine-dotted line drawn by China on maps marking its claim to around two-thirds of the total area of the South China Sea. An article published in May 2012 in the PLA Daily states that Chinese astronomer Guo Shoujing went to the island in 1279, under the Yuan dynasty, as part of an empire-wide survey called "Measurement of the Four Seas" In 1979historical geographer Han Zhenhua was among the first scholars to claim that the point called "Nanhai" (literally, "South Sea") in that astronomical survey referred to Scarborough Shoal. In 1980 during a conflict with Vietnam for sovereignty over the Paracel Islands(Xisha Islands), however, the Chinese government issued an official documentclaiming that "Nanhai" in the 1279 survey was located in the Paracels. Historical geographer Niu Zhong xun defended this view in several articles. In 1990, a historian called Zeng Zhaoxuan argued instead that the Nanhai measuring point was located in Central Vietnam. Historian of astronomyChen Meidong and historian of Chinese science Nathan Sivin have since agreed with Zeng's position in their respective books about Guo Shoujing. In 1935, the Chinese government, at that point the Republic of China, regarded the shoal as part of the Zhongsha Islands.That position has since been maintained by both the Republic of China and

the People's Republic of China. In 1947 the shoal was given the name Minzhu Jiao (Chinese:; literally "Democracy Reef"). In 1983 the People's Republic of China renamed it Huangyan Island with Minzhu Jiao reserved as a second name. In 1956 China, by then governed by the People's Republic of China, protested Philippine remarks that the South China Sea islands in close proximity to Philippine territory should belong to the Philippines. China's Declaration on the territorial Sea, promulgated in 1958, says in part. The breadth of the Territorial Sea of the People's Republic of China shall be twelve nautical miles. This applies to all territories of the People's Republic of China, including the Chinese mainland and its coastal islands, as well as Taiwan and its surrounding islands, thePenghu Islands, the Dongsha Islands, the Xisha Islands, the Zhongsha Islands [italics added], the Nansha Islands and all other islands belonging to China which are separated from the mainland and its coastal islands by the high seas.

CLAIM BY THE PHILIPPINES The Philippines claims that as early as the Spanish colonization of the Philippines, Filipino fishermen were already using the area as a traditional fishing ground and shelter during bad weather. In 1957, the Philippine government conducted an oceanographic survey of the area and together with the US Navy force based in then U.S. Naval Base Subic Bayin Zambales, used the area as an impact range for defense purposes. An 8.3 meter high flag pole flying a Philippine flag was raised in 1965. A small lighthouse was also built and operated the same year. In 1992, the Philippine Navy rehabilitated the lighthouse and reported it to the International Maritime Organization for publication in the List of Lights. As of 2009, the military-maintained lighthouse is non-operational. Several official Philippine maps published by Spain and United States in 18th and 20th centuries show Scarborough Shoal as Philippine territory. The 18th-century map "Carta hydrographica y chorographic a de las Islas Filipinas" (1734) shows the Scarborough Shoal then was named as Panacot Shoal. The map also shows the shape of the shoal as consistent with the current maps available as today. During the 1900s, Mapa General, Islas Filipinas, Observatorio de Manila , and US Coast and Geodetic SurveyMap include the Scarborough Shoal named as "Baju De Masinloc." In 1792, another map drawn by the Malaspina expedition and published in 1808 in Madrid, Spain also showed Bajo de Masinloc as part of Philippine territory. The map showed the route of the Malaspina expedition to and around the shoal. It was reproduced in the Atlas of the 1939 Philippine Census, which was published in Manila a year later and predates the controversial 1947 Chinese South China Sea Claim Map that shows no Chinese name on it. Another topographic map drawn in 1820 shows the shoal, named there as "Bajo Scarburo," as a constituent part of Sambalez (Zambales province)The Scarborough Shoal is not included within the territorial lines defined in theTreaty of Paris (1898), Treaty of Washington(1900), Convention Between the United States and Great Britain (1930), 1935 Constitution of the Philippines, Republic ActNo. 3046 "Act to Define the Baselines of the Territorial Sea of the Philippines"(1961), or the1987 Constitution of the Philippines. The Philippine Department of Foreign Affairs(DFA) asserts that the basis of Philippine sovereignty and jurisdiction over the rock features of Bajo de Masinloc are not premised on the cession by Spain of the Philippine archipelago to the United States under the Treaty of Paris, and argues that 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.

By virtue of the Presidential Decree No. 1599 issued by President Ferdinand Marcos on June 1978, the Philippines claims an Exclusive Economic Zone (EEZ)up to 200 nautical miles (370 km) from the baselines from which their territorial sea is measured. In 2009, President Gloria Macapagal-Arroyo enacted the Philippine Baselines Law of 2009 (RA 9522). The new law classifies the Spratly Island sand the Scarborough Shoal as a regime of islands under the Republic of the Philippines. The DFA further cites the Island of Palmas Case, where the sovereignty of the island was adjudged in favor of the Netherlands because of effective jurisdiction and control despite the historic claim of Spain. The Philippines has exercised effective jurisdiction and effective occupation of the shoal since its independence. It also explains that the Exclusive Economic Zone claim on the waters around Scarborough is different from the sovereignty exercised by the Philippines in the shoal. The Philippine government has proposed taking the dispute to the International Tribunal for the Law of the Sea(ITLOS) as provided in Part XV of the United Nations Convention on the Law of the Sea, but the Chinese government has rejected this, insisting on bilateral discussions.

PH sovereignty based on Unclos, principles of international law BY: DEPARTMENT OF FOREIGN AFFAIRS (Editors Note: The following is the position paper from the Department of Foreign Affairs on the Philippine standoff with China at Panatag Shoal, also known as Bajo de Masinloc and Scarborough Shoal, in the West Philippine Sea.) 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 (220 kilometers) west of Zambales and is within the 200- nautical-mile (370 kilometers) exclusive economic zone (EEZ) and Philippine continental shelf. A Philippine Navy surveillance aircraft, patrolling the area to enforce the Philippine Fisheries Code and marine environment laws, spotted eight Chinese fishing vessels anchored inside the Bajo de Masinloc (Panatag Shoal) on Sunday, April 8, 2012. On April 10,the Philippine Navy sent the BRP Gregorio del Pilar to the area. In accordance with established rules of engagement, an inspection team was dispatched and it reported finding large amounts of illegally collected corals, giant clams and live sharks in the compartments of the Chinese 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 a violation of the Fisheries Code and the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES).

Basis of sovereignty Bajo de Masinloc (international name, Scarborough Shoal) is not an island. Bajo de Masinloc is also not part of the Spratlys.Bajo de Masinloc is a ring-shaped coral reef, which has several rocks encircling a lagoon. About five of these rocks are above waterduring high tide. Some of these rocks are about three

meters high and can be seen above the water. The rest of the rocks and reefsare submerged during high tide. Bajo de Masinlocs chain of reefs and rocks is about 124 nautical miles (220 km) from the nearest coast of Luzon and approximately 472 nautical miles (850 km) 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 then the rocks of Bajo de Masinloc are also within the 200 nautical mile EEZ and the 200 nautical mile continental shelf of the Philippines.

Distinction A distinction has to be made between the rocks of Bajo de Masinloc and the larger body of water and continental shelf where the geological features are situated. The rights or nature of rights of the Philippines over Bajo de Masinloc are different from the rights 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 rocks of Bajo de Masinloc are situated. The basis of Philippine sovereignty and jurisdiction over the rocks of Bajo de Masinloc is distinct from that of its sovereign rights over the larger body of water and continental shelf.

A. Public international law The rocks of Bajo de Masinloc are Philippine territory. The basis of Philippine sovereignty and jurisdiction over the rocks is not premised on the cession by Spain of the Philippine archipelago to the United States under the Treaty of Paris. That the rocks 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 is likewise not premised on proximity or the fact that the rocks are within its200 nautical mile EEZ or continental shelf under the UN Convention on the Law of the Sea (Unclos). Although the Philippines necessarily exercises sovereign rights over its EEZ and continental shelf, the reason why the rocks of Bajo de Masinloc are Philippineterritory 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 mode for acquiring territorial ownership over a piece of real estate is effective exercise of jurisdiction. In the Palmas 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 United States in the Treaty of Paris.

In the case of Bajo de Masinloc, the Philippines, since it gained independence, has exercised both effective occupation and effective jurisdiction over Bajo de Masinloc. The name Bajo de Masinloc (which means Shallows of Masinloc or Masinloc Shoal) itself identifies the shoal as a particular political subdivision of the Philippine province of Zambales, known as Masinloc.

Maps One of the earliest known and most accurate maps of the area, named Carta Hydrographical y Chorographica de las Yslas Filipinas byFr. Pedro Murillo Velarde, SJ, and published in 1734, showed Bajo de Masinloc as part of Zambales. The name Bajo de Masinloc was 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 showed Bajode 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 8.3meter high flag pole in 1965and another Philippine flag raised by Congressmen Roque Ablan and Jose Yap in 1997. In 1965, the Philippines built and operated as mall lighthouse on 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 working). Bajo de Masinloc was also used as target range by Philippine and US naval forces stationed in Subic Bay in Zambales. 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 the shoal their fishing grounds because of its proximity to the coast of southwest Luzon.

Archipelagic baselines In 2009, when the Philippines passed an amended Archipelagic Baselines Law fully consistent with Unclos, Bajo de Masinloc 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 bedetermined as Regime of Islands under the Republic of the Philippines consistent with Article 121 of the 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 superior right over Bajode Masinloc on the basis of its so-called historical claim? China is claiming Bajo de Masinloc based on historical arguments, claimingit to have been discovered by the Yuan Dynasty. China is also claiming that Bajo de Masinloc has been reflected in various official Chinese maps and has been named by China in various official documents. Answer: Chinese assertions 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 ones claim is not acquiescence under international law. Acquiescence must be affirmative such that other states recognize the 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 has acquiesced to Chinas so-called historical claim. Naming and placing on maps 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 Chinas claims that Bajo de Masinloc is traditional fishing waters of Chinese fishermen? Answer: Under international law, fishing rights are 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 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, eliminating so-called historical waters and justly appropriating the resources of the seas to coastal states to which the 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, involving the harvesting of endangered marine species, which is illegal in the Philippines and illegal under international law, specifically the CITES.

B. Basis of sovereign rights

As earlier indicated, there is a distinction between the rocks of Bajo Masinloc and the waters around them. The question of ownership of the rocks is governed by the principles of public international law relating to modes for acquiring territories. On the other hand, the extent of its adjacent waters is governed by Unclos. 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 submerged during high tide. Accordingly, these rocks have only 12 nautical miles 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 nautical miles territorial waters. Question: But what about the waters outside the 12 nautical miles territorial waters of the rocks 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 1508N and longitude 11745E. It is approximately 124 nautical miles off the nearest coast of Zambales. Clearly, the rocks of Bajo de Masinloc are within the 200 nautical miles EEZ and continental shelf of the Philippines. Therefore, the waters and continental shelves outside of the 12 nautical miles territorial waters of the rocks of Bajo de Masinloc appropriately belong to the EEZ and continental shelf of the Philippines. As such, the Philippines exercises exclusive sovereign rights to explore and exploit the resources within these 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 these 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 nautical miles EEZ and continental shelf. To do otherwise would be in violation of international law, specifically Unclos. Therefore, the current action of the Chinese surveillance vessels within the Philippine EEZ 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 fishermen earlier apprehended by Philippine law enforcement agents may have poached not only in Bajo de Masinloc but likely also in the EEZ of the Philippines. Therefore, these poachers have violated the sovereign rights of the Philippines under Unclos.

PH archeological vessel The Philippine National Museum has been undertaking an official marine archaeological survey in the vicinity of Bajo de Masinloc. The archaeological survey is being conducted by the Philippine National Museum on board the Philippine-flag MY Saranggani. Chinese maritime surveillance vessels have been harassing the MY Saranggani. The Philippines has strongly protested the harassments by the Chinese side. The 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 The Philippine Navy, during a routine sovereignty patrol, saw eight fishing vessels moored at Bajo de Masinloc on April 10. ThePhilippine side inspected the 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 staunchly protects 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 toward a peaceful and diplomatic solution to the situation. As the Department of Foreign Affairs works toward a diplomatic solution, the Philippine Coast Guard is in the area and is continuing to enforce relevant Philippine laws.

THE LAW OF THE SEAS AND SCARBOROUGH SHOAL DISPUTE April 27, 2012, marks the formal end date of the Balikatan joint military exercises of US and Philippine military forces. Considered a yearly event, Balikatan draws its proximate basis from the 1999 USPhilippines Visiting Forces Agreement (VFA), but the ultimate basis for the parties' joint exercises is the 1952US-Philippines Mutual Defense Treaty(MDT). While Balikatan's timing may be coincidental, the ongoing standoff between Chinese and Philippine gunboats in Scarborough Shoal is certainly not, thus implicating potential US intervention in yet another theater of war, this time in the Pacific. The gunboat standoff is now on its seventeenth day, triggered by a plausible case of illegal fishing activities by Chinese fishermen in Philippine exclusive economic zones: the Philippine navy then sought to arrest Chinese fishermen found to have harvested live corals, live baby sharks, and other rare or endangered marine species in Scarborough Shoal "Panatag Shaol" under the local vernacular which refers to a group of islands and reefs in an atoll located just 124 nautical miles from the Philippine province of Zambales, but lying more than 500 nautical miles from Hainan, the nearest Chinese port. Scarborough Shoal is approximately 230 kilometers from Luzon, a main island of the Philippines, and 1,200 kilometers from Hainan province. As Philippine naval vessels attempted to seize illegal cargo and make the arrest, Chinese ships intervened and established a defensive posture. To date, no arrest or seizure could be made without escalating what is still a defense posture by both navies. The Chinese navy also dropped steel posts and navigation buoys to mark the waters around Scarborough in "defense" of its "national territory." As of April 26, Philippine authorities spotted two unidentified aircraft in Scarborough's airspace which, according to Philippines Foreign Affairs Secretary Albert del Rosario, were "not from the Philippines." Article IV of the MTD between the US and Philippines requires each party to recognize an "armed attack" in the "Pacific Area" one ither party as an attack against the other, the happening of which obliges them

to "act to meet the common dangers in accordance with its constitutional processes." Read with Article IV, Article V defines an "armed attack" as "including an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in the Pacific." Noteworthy is the fact that the treaty provisions do not use "use or threat of force" as operative terms, but "armed attack." As the twenty-eighth Balikatan exercises draw to a close with each side show casing the program as a "success," China was quick to warn the Philippines government that a US presence may "internationalize" the situation, as a number of Balikatan exercises were held near or at the West Philippine Sea or the South China Sea depending on one's vantage point. In fact, China considers both Scarborough and the Spratly Islands disputes as "regional" or even "bilateral" in nature. The Philippines, speaking through its foreign minister, proposed that the parties raise Scarborough to the International Tribunal on the Law of the Sea (ITLOS), an idea which the Chinese government flatly rejected. ITLOS is a key dispute resolution component of the UN Convention on the Law of the Sea (UNCLOS). Is this a case where a maritime dispute, described in terms of which country is encroaching upon the other's "exclusive economic zone," and a territorial dispute, described in terms of "national territory," can and ought to be distinguished? Or does the answer to one question determine the other? Commentators have argued that the maritime dispute and the territorial dispute are separable and ought to be resolved independently, even to the extent of implying that each question would require different venues. Many are tempted, on one hand, to associate UNCLOS solely with maritime questions, and the International Court of Justice (ICJ) and the Permanent Court of Arbitration with the "grander" and "greater" questions of territorial claims. It is unavoidable, however, that any attempt at drawing archipelagic baselines which are inherently territorial questions under UNCLOS will certainly determine how far exclusive economic zones, or for that matter, the contiguous zones and territorial waters of a country can be. Questions of substantive international norms aside, the more pressing question is whether China, having formally ratified UNCLOS in1996, can be bound at all by the compulsory dispute resolution mechanisms of the UNCLOS regime. In a declaration made on August25, 2006, after China's 1996 ratification of UNCLOS, the Chinese government made a statement to the effect that it "does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred toin paragraph 1 (a), (b), and (c) of Article 298 of the Convention." That Section 2 is captioned as "Compulsory Procedures Entailing Binding Decisions." Articles 286 and 287 of the same section, read together, point to ITLOS, the ICJ, an arbitral tribunal "constituted in accordance with Annex VII" (which may refer to the Permanent Court of Arbitration), and a "special arbitral tribunal" likewise under Annex VII. Thus there can be at least four venues for Scarborough if the dispute is brought to UNCLOS. It seems that China, while a state party to UNCLOS, is not bound by its compulsory processes, ITLOS included. And even if China had not lodged its 2006 declaration which effectively served as a reservation against any binding outcome of UNCLOS's grievance system, China's ratification instrument to UNCLOS made a decade earlier stated that "The People's Republic of China reaffirm sits sovereignty over all its archipelagos and islands as listed in article 2 of the Law of the People's Republic of China on the territorial sea and the contiguous zone, which was promulgated on 25 February 1992.

"Does China consider Scarborough as among its "archipelagos" and "islands" listed under its basic law? Regardless of venue, China seems to be posturing for an historical claim, or an historical title, to the Scarboroughs, which is consistent with its claim over the Spratly Islands. In The Law of the Seas and the Spratly Islands Dispute, I discussed the Philippines-China dispute over the Spratlys, agroup of islands which lie at the heart of one of the world's busiest sea lanes and are known to hold rich oil and natural gas reserves. Time and again, as with Scarborough, the Chinese government insists that the Spratly dispute should be resolved through bilateral negotiations, while the Philippines and its long-time ally, the US, call for a multilateral approach. Whether bilateral or multilateral, and whether it be Scarborough or the Spratlys, in meeting the greater question of who really owns the South China Sea (or West Philippine Sea, again depending on one's vantage point) there can be no avoidance of a rules-based regime of some kind, treaty orcustom. A less ambitious, but a potentially viable venue, might be the Association of Southeast Asian Nations (ASEAN). In 2002, China and ASEAN signed the Declaration on the Conduct of Parties in the South China Sea, which called for the exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including,among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner. Del Rosario very recently announced that ASEAN should take a more active role, as both Scarborough and Spratlys would clearly fall under the 2002 ASEAN-China Declaration. While Del Rosario was quick to petition ASEAN (quite understandably) to intervene, deploring China's continuing breach of the 2002 declaration, ASEAN's experience in dispute resolution remains shaky, nor was ASEAN originally designed or built to resolve diplomatic rows occurring between and among non-ASEAN member states such as China. As the Philippines, along with Japan and South Korea, struggles to shake off the perception of acting as a mere US proxy in Asia, it will be difficult to deny that more than 7,000 American and Filipino troops were present in the name of "war games" and "disaster response activities" held near or even at a potential theater of combat in the Pacific. It is clear, wherever one's political perspectives may lie, that those joint military exercises were undertaken under a post-war "mutual defense treaty" whose commitments of "mutual interests" had been reaffirmed by no less than Secretary of State Hillary Clinton during her November 2011 visit in Manila. Dubbed as the "2 + 2" summit, US and Philippine diplomats have planned to meet next week to discuss their next steps in pursuit of their "mutual interests" in Asia. Edsel Tupaz is the founder and managing partner of Tupaz & Associates and is currently a private prosecutor of the House prosecution panel in the impeachment trial of Philippine Chief Justice Renato Corona. Tpaz is a p ublic interest lawyer and law professor whose expertise lies in comparative constitutional law and policy, teaching at law schools in the US and the Philippines. Heis a graduate of Harvard Law School and Ateneo Law School.

Scarborough Shoal: Chinas Perspective

SUN TZU, THE ART OF WAR: Know your antagonist and know yourself,And you will be able to attain victory Historical Basis According to an official website of China: China is the first country to discover and name Huangyan Island, incorporate it into its territory, and exercised Jurisdiction over it (china.org.cn) Huangyan Island was first discovered and drawn into Chinas map in Chinas Yuan Dynasty (1271 - 1368 AD) In 1279, Chinese astronomer Guo Shoujing performed a survey of the seas around China forKublai Khan, and Huangyan Island was chosen as the point in the South China Sea China has been developing and exploiting Huangyan island for a long time

Huangyan island and its surrounding waters are a traditional fishing place for Chinese fishermen. Since ancient time, the Chinese fishermen have been fishing in Huangyan island and its surrounding waters

Legal Basis In January 1935, the Map Verification Committee of China, which consisted of representatives from Ministry of Interior Affairs,Ministry of Foreign Affairs, Ministry of Educationand Navy, declared sovereignty over 132 islands, reefs and shoals Huangyan Island, which was called ScarboroughShoal at the time, was included as a part of Zhongsha Islands and included in the territory of China In October 1947, Chinese government announced the new name list of South ChinaSea islands and Scarborough Shoal wasrenamed as Minzhu (or Democratic) Reef In 1983, the China Board on Geographic Names...decided to use Huangyan Island as the standard name of the island and Minzhu (or Democratic) Reef as alternative name All the official maps published by Chinese governments of different periods marked Huangyan Island as Chinese territory Huangyan Island has been consistently under administration of Chinas Guangdong Province first and Hainan Province later China has noted that the Huangyan Island is Chinese territory in all its declarations concerning the sovereignty of the South China Sea islands All of these happened long before UNCLOS came into force in 1994 The Chinese government had sent teams of scientists to investigate Huangyan Island over the years

 October 1977 & June 1978: researchers from the South China Sea Institute of Oceanology under the Chinese Academy of Sciences went there to do research April 1985: the South China Sea branch of the State Oceanic Administration organized a comprehensive expedition to Huangyan Island 1994: a South China Sea scientific expedition went there to investigate it and built a one-meter-high concrete monument on the island 1994, 1995 and 1997: China gave permission to radio amateurs to go to the island and broadcast from there Chinas Position on South China Sea Foreign Ministry spokesman, February 2012: Neither China nor any other country lays claimto the entire South China Sea Letter to UN Secretary-General from Chinas UN Mission, May 2009: China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map)

Chinas Criticism of PH Claim The Philippine territory was determined by a series of international treaties, and none of these stated that Huangyan island belongs to the Philippines The Treaty of Paris (1898), the Treaty of Washington (1900) and the US UK Convention(1930) clearly defined that 118 degrees Eastlongitude is the western limit of Philippineterritory. The Huangyan Island is outside this limit The 1935 Philippine Constitution, the US -PhilippinesTreaty of General Relations and the Mutual Defense Treaty, the 1961 Republic Act No. 3046 setting the baselines of the Philippine territorial sea and the 1968Republic Act No. 5446 amending the territorial sea baselines have reaffirmed the legal effects of the three treaties and explicitly recognized that the Philippine territory does not include the Huangyan Island The above facts fully prove that Huangyan Island isoutside the scope of Philippine territory and does not belong to the Philippines Until 1997, the Philippines has never raised an objectionabout Chinas jurisdiction and development of HuangyanIsland, and even repeatedly stated that it was outside Philippine territory The maps published by the Philippines in 1981 and 1984 also did not incorporate Huangyan Island (including the latest official map, according to Vice Foreign Minister FuYing) The Philippine Ambassador to Germany indicated clearly in his letter to a Germany radio amateur on February 5,1990 that the Huangyan Island was not within the Philippine territorial sovereignty according to the National Mapping and Resource Information Authority of the Philippines The documents sent by the National Mapping and Resource Information Authority of the Philippines to the American Amateur Radio Association on October 18, 1994 and November 18, 1994 have lso confirmed respectively that the Philippine territorial limits and sovereignty were stipulated in Article 3 of the 1898 Treaty of Paris and Huangyan Island was located outside the boundary of Philippine territory It is the basic principle of the international maritime law that land dominates the sea. UNCLOS allows coastal states to claim a 200-nautical-mile EEZ, but coastal states have no right to harm the inherent territory and sovereignty of other countries Any attempt to use UNCLOS to change the territorial sovereignty of a country is a violation of the principles of international law, including UNCLOS The maritime jurisdiction of the Philippines should not infringe upon the territorial sovereignty of Chinaover the Huangyan Island

Weakness of Chinas Position Chinas historical claim does not necessarily constitute a historical title to Scarborough Shoal (also, debatable basis of historical claim) Even if the Treaty of Paris & other treaties did not include Scarborough Shoal as Philippine territory, it does not follow that the shoal belongs to China China still has to prove that it exercised effective occupation and jurisdiction over it during a long, continuous period of time Chinas claim in the 9-dash-line map conflicts with UNCLOS exceeds what is permitted under UNCLOS intersects and overlaps with the exclusive economic zones of the Philippines, Malaysia ,Brunei, Indonesia and Vietnam

Possible Solutions Diplomatic vs legal solution, bilateral vsmultilateral solution, unilateral vs jointdevelopment Chinas proposal: Bilateral talks, Deng Xiaopings idea of shelving sovereignty and engaging in joint exploration and development, concept on joint fishing zoneor joint maritime zone ( eg. Gulf of Tonkin)

THIS IS COMPILATION OF RESEACH: RAMIFICATION OF SCARBOROUGH SHOAL