The Law of the Seas and the Scarborough Shoal Dispute

JURIST Columnist Edsel Tupaz of Tupaz & Associates examines the territorial dispute between the
Philippines and China over Scarborough Shoal, an island between the two countries, and notes the
ongoing involvement of the US in the Philippines during this 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 US-Philippines Visiting Forces
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Agreement (VFA), but the ultimate basis for the
parties' joint exercises is the 1952 US-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" on either 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 "includ[ing] 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 showcasing 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 in 1996, can be bound at all by the compulsory dispute resolution mechanisms of
the UNCLOS regime. In a declaration made on August 25, 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 to in 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 reaffirms its 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, a group 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 or custom.

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. Tupaz is a public interest lawyer and law professor whose expertise lies in comparative
constitutional law and policy, teaching at law schools in the US and the Philippines. He is a graduate of
Harvard Law School and Ateneo Law School.

Suggested citation: Edsel Tupaz, The Law of the Seas and the Scarborough Shoal Dispute, JURIST -
Sidebar, Apr. 27, 2012, http://jurist.org/sidebar/2012/04/edsel-tupaz-scarborough.php