I remember when I was in elementary I asked my History teacher what will be the resolution over the disputed territory. My History teached said she didn't know the answer. Only time will tell.
Years passed and the issue resurfaced. Whether it was a blessing in disguise that the Chinese fishermen reminded us of the historic claims that the Philippine government needs to address, only time can truly tell when this will end.
Let us the read the position of the Philippines on its claims over the land:
(source: http://www.gov.ph/2012/04/18/philippine-position-on-bajo-de-masinloc-and-the-waters-within-its-vicinity/)
Department of Foreign Affairs
April 18, 2012
April 18, 2012
Background on the Bajo de Masinloc (Panatag) incident
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 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, 2012, in the conduct of its maritime patrols and its
enforcement of the Philippine Fisheries Code and marine environment
laws. On April 10, 2012, 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) 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 15°08′N and longitude 117°45′E. The rocks of Bajo de Masinloc are situated north of the Spratlys.
Obviously, therefore, the rocks of Bajo de Masinloc is 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 said 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 is 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 exercise 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 said island may have been historically discovered by Spain and historically ceded to the U.S. 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, SJ, 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 U.S. 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 flagpole 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 U.S. Naval Forces stationed in Subic Bay
in Zambales for defense purposes. 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
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 that is 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; andb) 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 on 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 claiming 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 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 a 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 de 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. Likewise, 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.
Because 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 15°08′N and longitude 117°45′E. It is
approximately 124 NM 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-NM 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 nonliving, 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 fisherman 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 the Philippine-registered 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, which is on board the
Philippine motor yacht M/Y Saranggani.
Chinese maritime surveillance vessels have been harassing the M/Y 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 Navy
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 toward a peaceful and diplomatic
solution to the situation.
As the DFA works toward a diplomatic
solution, the Philippine Coast Guard is present in the area and is
continuing to enforce relevant Philippine laws.
In Inquirer's timeline, we would see how events progress on the rift between the Philippines and China on the much coveted Scarborough shoal.
When will this dispute end? How will the countries address the issue?
Who owns the Scarborough Shoal?
This is one of the Secrets and Scandals in 7107 Islands, Philippines.
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