Ignorant or confused about Scarborough Shoal: Lagdameo or DFA?

IT is certainly a testament to the incompetence of this government that its foreign affairs officials are either ignorant or confused about our reasons for asserting our sovereignty over Scarborough Shoal after China officially annexed it last month.

While it’s not clear if the country’s Permanent Representative to the United Nations, Antonio Lagdameo, himself wrote the Philippine statement on our claim over Scarborough Shoal (Bajo de Masinloc to us, Huangyan to the Chinese) that he made the other day at the UN, or if it was given to him by Foreign Affairs Secretary Enrique Manalo or his staff to read, it reflects our government’s confusion over the issue.

Lagdameo merely declared that “Bajo de Masinloc has always been an integral part of the territory of the Philippines.” Lagdameo gives no other justification except implying that the Philippine claim is based on the “1982 United Nations Convention on the Law of the Sea (Unclos) and the binding 2016 arbitral award on the South China Sea.”

He meant what such officials as Defense Secretary Gilberto Teodoro and Philippine Coast Guard official Jay Tarriela — and most of media, both here and in the Wests — have been repeating incessantly: That Scarborough Shoal (Bajo de Masinloc) is ours because it is within our exclusive economic zone as defined by Unclos and that the 2016 arbitral award declared illegal China’s claim. The more ignorant officials claim that Scarborough is far (800 kilometers) from the closest Chinese territory (Hainan) while it is just 198 km from our Subic Bay. Proximity is never a basis in international law for a sovereignty claim, as in the case of the Falklands near Argentina but occupied by the United Kingdom or the Kuril islands near Japan but claimed by Russia.

Arbitral

Nowhere, though in the arbitral award does it claim that China’s sovereignty over Scarborough is without basis. In fact, the arbitral panel cannot do so as Unclos, under which the arbitration suit was filed, has no authority to decide on nations’ sovereignty claims. The award, though, cleverly skirts the issue of sovereignty and points out that the Scarborough area is a traditional fishing ground for many nationalities and that China must allow them to fish in the area. But this is all academic, as China had refused to enter into an arbitration when the Philippines demanded it.

The official Philippine position does not give such justifications by Lagdameo for our claim to Scarborough.

Rather, it points out*:

“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-nautical mile exclusive economic zone 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 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 US 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 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, published in 1990 by the US 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 in 1997. In 1965, the Philippines also built and operated a small lighthouse in one of the islets in the shoal.

“Bajo de Masinloc was also used as an impact range by Philippine and US 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.”

China

On the other hand, China claims:**

“Among the 132 islands, shoals, reefs and sand bars in the South China Sea in the list of geographical names approved and publicized by the Water and Land Mapping Review Committee of the Chinese government in 1935, Huangyan Island was listed as part of the Zhongsha Islands. The committee subsequently issued the Map of China’s Islands in the South China Sea and included Huangyan Island into China’s territory.

“The Internal Affairs Ministry of the Chinese government produced a Location Map of the South China Sea Islands in 1947, in which the geographical names of the Dongsha, Xisha, Zhongsha and Nansha islands were clearly marked, together with 172 islands, shoals, reefs and sand bars. Huangyan Island, then named Minzhu Jiao, was marked as part of the Zhongsha Islands. In 1948, this location map was officially publicized by the internal affairs ministry of the Chinese government as an appendix to the administrative map of the Republic of China.

“After the founding of the People’s Republic of China in 1949, China has continued to exercise sovereignty over Huangyan Island. Chinese Foreign Minister Zhou Enlai, in his 1951 statement on the US and UK’s draft peace treaty with Japan and the San Francisco Conference, explicitly stated the following: ‘Nansha, Zhongsha and Dongsha islands have always been China’s territory. Although they had been occupied by Japan for some time during the war of aggression waged by Japanese imperialists, they were all taken back by the then Chinese government following Japan’s surrender.’

Huangyan

“Huangyan, as part of the Zhongsha Islands, indisputably belongs to China. China issued the Statement of the People’s Republic of China on the Territorial Sea in 1958, in which China reaffirmed its sovereignty over the Dongsha, Xisha, Zhongsha and Nansha islands. In 1959, the Office for Xisha, Nansha and Zhongsha Islands’ Affairs under the government of Guangdong Province was opened by the Chinese government on Yongxi Island, which is a part of the Xisha Islands. The office became a part of the government of the newly established Hainan province in 1988.”

Our loss of Bajo de Masinloc is really so tragic as most international scholars think that among our many disputes in South China, it has the strongest claim on Scarborough. Aquino III and Marcos Jr., however, adopted a belligerent stance against China and hoped the US would intervene. They provoked China “to settle the issue on the ground,” tragically helped by the US, which misled Aquino into abandoning it in 2012. At the very least we could have the issue of sovereignty shelved, as it had been for a hundred years, as Chinese leader Deng Xiao Ping’s stand many years ago over the South China Sea disputes.

*Foreign Affairs Department and published by the Official Gazette, April 18, 2012.

**China Ministry of Foreign Affairs, “Ten Questions Regarding Huangyan Island,” June 15, 2012

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Ignorant or confused about Scarborough Shoal: Lagdameo or DFA?
Source: Breaking News PH