China, the Philippines, and the Scarborough Shoal

The message to China is simple: The South China Sea is not China's bathtub to do as it pleases. China must decide whether it wishes to maintain an antagonistic approach to territorial claims outside its legal and territorial reach.
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Last week, the USS North Carolina -- a Virginia class fast attack submarine -- took Chinese and Philippine authorities alike by surprise after resurfacing in Philippine waters and docking in Subic Bay -- the economic free port zone in the Philippine province of Zambales. Subic was once the largest U.S. naval base in the Pacific, closed down in 1991 after the Philippine Senate refused -- shortsightedly, many would argue -- to extend the U.S.-Philippines Military Bases Agreement of 1947. The unannounced arrival of the USS North Carolina came at a time of heightened tension between China and the Philippines over a maritime and territorial dispute over Scarborough Shoal, a triangular-shaped island group of 150 square kilometers located 124 nautical miles off Zambales.

The arrival of the North Carolina is filled with symbolism about the history and strength that once lay behind the military relationship that once defined the bilateral relationship between the Philippines and the U.S. Just 20 years ago, the Philippines was the centerpiece of U.S. military strategy in the Asia Pacific. The Philippine Senate's decision to jettison U.S. forces from the country altered the geostrategic military calculus for the U.S., and dramatically impacted the perceived importance of the Philippines for the U.S. military. Since then, Guam has become a focal point, as have military bases elsewhere in Asia.

That said, the rising tension over the Scarborough Shoal has served to raise the Philippines' profile once again -- both as a potential adversary to China over mineral resources in the region, and as a reliable ally of the U.S. Named after the ill fated East India Company trade ship Scarborough which was wrecked on the rocks of the shoal in 1784, the Shoal forms part of a larger dispute over who really "owns" the South China Sea (or the 'West Philippine Sea', as Filipinos refer to it). Scarborough Shoal is known under Filipino vernacular as 'Panatag Shoal,' and, to China, Huangyan Island. While only 124 nautical miles from Zambales, Scarborough is 550 nautical miles from Hainan Island, the closest Chinese port, which raises serious questions as to the legal validity of the Chinese claim over the territory.

Gunboat Standoff and Sanctions

The most recent tension over Scarborough began in April this year when the Philippine Navy discovered eight Chinese fishing ships in the Shoal. After having boarded the vessels, Philippine authorities uncovered large amounts of illegally collected corals, live sharks and other marine life in the hands of Chinese fishermen. Before a complete seizure of the vessels and arrest of persons could be made, two Chinese maritime surveillance ships approached and positioned themselves between the Philippine ships and the Chinese fishing vessels. Despite continued diplomacy between Beijing and Manila, more gunboats were deployed by both governments and the standoff continues to date. Fishermen from both countries have been arrested, reprimanded or forced away by opposing naval forces at one time or another. As many as 30 Chinese vessels have been reported in Scarborough, seven of which are fishing vessels, two being marine surveillance vessels, and one gunboat. Two Philippine Coast Guard vessels are in the area as well.

Philippine President Aquino made clear that the Philippines is no match for China's military, and it does not seek military conflict with China. Despite repeated assurances of a desire to avoid any form of conflict -- relations between the two countries continue to deteriorate. China has been accused of suspending tourism to the Philippines and imposing sanctions over imports of Philippine fruits. Additional sanctions could be put into place by both countries, as the conflict has the potential to spin out of control.

The dispute over Scarborough arises from conflicting territorial and maritime claims between China and the Philippines on grounds of discovery and occupation. Beijing now argues that it first discovered and mapped the entire South China Sea during the Yuan Dynasty (1271-1368 AD), and that it was again mapped in 1279 AD by Chinese astronomer Guo Shoujing in a survey of islands surrounding China. The Philippines likewise claims historical ties to the territory, the earliest being the Carta Hydrographical y Chorographics De Las Yslas Filipinas (or "Hydrographic and Chorographic Map of the Philippine Islands"). Published in 1734, Fr. Velarde's map identified the Shoal as part of Zambales. Later expeditions such as Alejandro Malaspina's 1808 survey, likewise identified the territory as part of the Philippines.

Treaty Law

Given its proximity to the Philippines, common sense dictates that the Shoal is laying within Philippine territorial waters -- not that of China -- and international law is on the side of the Philippines. The Treaty of Paris of 1898, The Treaty of Washington of 1900, and the Treaty with Great Britain of 1930 all state that the westernmost limit of Philippines territory is the 118th degree meridian of longitude east of Greenwich, arguably excluding Scarborough. But even as the 1935 Philippine Constitution (and, by definition, all subsequent constitutions) affirms the legality or legitimacy of these treaties, constitutional provisions however do assert that Philippine national territory is comprised of the "Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction."

At present, the Philippines is building a case for unilateral submission to the International Tribunal for the Law of the Sea (ITLOS) sitting in Hamburg, one of the dispute resolution mechanisms under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) of which both China and the Philippines are signatories. UNCLOS provides for a 200 nautical mile "exclusive economic zone" and "continental shelf" which effectively places Scarborough within Philippine sovereignty or jurisdiction. The Philippine claim is further strengthened, yet not without controversy, by Republic Act No. 9522, known as the Philippine Archipelagic Baselines Law. Said to be compliant with UNCLOS, this law defined Philippine territory by connecting straight lines from the outermost points of the outermost islands of the Philippine archipelago.

The Philippine Archipelagic Baselines Law was considered a "sell out" by the administration of former President Arroyo, who signed the bill into law in 2009. But the Law creates a domestic legal conflict in that its baselines allegedly contradict the 1987 Philippine Constitution by decreasing the size of the nation's territory. Oddly, today, the Philippine government is using this law as the basis for its claim on Scarborough by classifying the territory as a "regime of islands" over which it exercises sovereignty and jurisdiction.

Diplomatic Solution

Through President Aquino and Foreign Affairs Secretary Alberto del Rosario, the Philippines has constantly publicized its desire to resolve the dispute through peaceful settlements and mediation based on international law -- specifically through UNCLOS -- a position which Beijing has flatly rejected. Even after China's ratification of UNCLOS in 1996, questions remain about whether China can be bound at all by the compulsory processes and judgments made under the UNCLOS system. In a reservation made on Aug. 25, 2006, Beijing announced, in sum, that China does not accept any of the compulsory procedures with respect to all categories of territorial and maritime disputes under the Convention.

What is more, in a statement made by Hong Lei, spokesperson of the Chinese Foreign Ministry, the only way the Scarborough issue can be resolved is for the Philippines to surrender all sovereignty over it to China. In addition, China is imposing three requirements upon the Philippine government:

1. That Chinese vessels in the waters of the South China Sea near and at Panatag (Huangyan Islands) should not be disrupted from carrying out their duties;
2. That Chinese fishermen and their boats should not be interrupted in their activities; and
3. That Philippine government vessels must withdraw from the area.

While a diplomatic or legal solution remain distant objectives, both countries continue their build-up of navy and military hardware. According to unofficial Japanese reports, Japan may soon provide ten 1,000-ton patrol ships to the Philippines to boost its defense capacity. A second US Hamilton-class cutter is slated to be transferred to the Philippine government this Tuesday, following what appeared to be a credible defense posture in Scarborough in April by the first U.S.-built cutter, the BRP Gregorio del Pilar.

Discussions between Beijing and Manila have been cordial at best, and with both sides having dug in their heels on this subject, there is no resolution in sight. In our prior articles -- China's Pre-Imperial Overstretch and China and the Mosquitoes -- we argued that the South China Sea/West Philippine Sea will ultimately be a litmus test for whether China will cease to act as an unwieldy 800-pound gorilla that does as it pleases and will instead act as a responsible member of the international community, willing to engage other contestants in a rules-based regime in accordance with established norms of diplomacy and consistent with a nation of its importance and stature. With effective diplomacy and international courts seemingly out of the question on this issue, power politics are taking a front seat.

Both U.S. navy officials and Philippine authorities have maintained that the arrival of the USS North Carolina had nothing to do with Scarborough, and that it was in Subic Bay for a "courtesy visit" and "routine port call" after over five months at sea. Of course, no one really believes that, nor should they. With China maintaining an adversarial approach to its well overstretched claim to the South China Sea, the Philippines and other countries in the region have little choice but to strengthen alliances with the United States. Australia, Japan, South Korea, and Singapore have all done the same. The Philippines will in the end benefit from an enhanced military relationship with the U.S., as will other countries in the region.

The message to China is simple: The South China Sea is not China's bathtub to do as it pleases. China must decide whether it wishes to maintain an antagonistic approach to territorial claims outside its legal and territorial reach. A sensible approach would be to declare victory, and leave while it is ahead.

Daniel Wagner is CEO of Country Risk Solutions, a cross-border risk management consultancy based in Connecticut (USA), and author of the new book Managing Country Risk (

Edsel Tupaz is a private prosecutor of the House prosecution panel in the impeachment trial of Philippine Chief Justice Renato Corona. He is a graduate of Harvard Law School and Ateneo Law School, founder of Tupaz and Associates, and a professor of international and comparative law, based in Manila.

Ira Paulo Pozon graduated from De La Salle University and the Far Eastern University to earn his dual degree of MBA-Juris Doctor. His interests lie in international comparative law, foreign relations, and international business law.

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