498 Lowell Bautista
The Philippine claim to Bajo de Masinloc, otherwise referred to as Scarborough
The territorial claim of the Philippines
over Bajo de Masinloc is strong relative to the claim of China as well as with respect
to the principles on the acquisition of territory in international law, in particular, on
the basis of effective occupation.
The sovereign rights and jurisdiction asserted by
the Philippines over the maritime entitlements of the features in Bajo de Masinloc are
founded on general principles of international law and consistent with the United
Nations Convention on the Law of the Sea (“UNCLOS”), which both the Philippines
The Philippines considers Bajo de Masinloc an integral part of Philippine
territory on the basis of continuous, peaceful and exclusive exercise of effective
occupation and effective jurisdiction over the shoal.
The Philippine claim over Bajo
de Masinloc is not based on proximity despite the same being located 120 nautical
miles (“nm”) west of the nearest coast of the Philippine island of Luzon and more
than 350 nm from the nearest coast of China.
The title of the Philippines is not
based on the cession of the Philippine archipelago from Spain to the United States
under the 1898 Treaty of Paris and related colonial treaties.
In this regard, the non-
inclusion of the features within the limits of the Treaty of Paris is immaterial and of
1 This paper adopts the Philippine name of Scarborough Shoal, which is Bajo de Masinloc. This paper treats China and
Taiwan as one claimant and assumes that their positions over the Bajo de Masinloc are identical.
2 R. Jennings, The AcquisiTion of TeRRiToRy in inTeRnATionAl lAw 6 (1963). See also S. shARmA, TeRRiToRiAl AcquisiTion,
DispuTes, AnD inTeRnATionAl lAw 188 (1997); H. Kelsen, pRinciples of inTeRnATionAl lAw 225 (2003); S. oDA, fifTy
yeARs of The lAw of The seA 22-27 (2003).
3 United Nations Convention on the Law of the Sea, signed on Dec. 10, 1982, 1833 U.N.T.S. 3,  ATS 31, 21 I.L.M.
1261 (1982). The Philippines and China ratified UNCLOS on May 8, 1984 and June 7, 1996, respectively.
4 Department of Foreign Affairs, Philippine position on Bajo de Masinloc (Scarborough Shoal) and the waters within its
vicinity, Official Gazette of the Republic of the Philippines, Apr. 18, 2012.
5 Republic of the Philippines, Department of Foreign Affairs, Notification and Statement of Claim, Manila ¶ 10, (Jan. 22,
6 Three colonial treaties define the Philippine territorial boundaries: (1) Treaty of Paris, U.S.-Spain, Dec. 10, 1898, T.S. No.
343; (2) Cession of Outlying Islands of Philippines, U.S.-Spain, Nov. 7, 1900, T.S. No. 345; (3) Boundaries, Philippines
and North Borneo, U.S.-U.K., Jan. 2, 1930, T.S. No. 856. For materials that discuss the Philippine Treaty Limits, please
see L. Bautista, The Historical Context and Legal Basis of the Philippine Treaty Limits, 10 AsiAn pAcific l. pol’y J. 1
– 31 (2008); L. Bautista, Philippine Boundaries: Internal Tensions, Colonial Baggage, Ambivalent Conformity, 16 J.
souTheAsT AsiAn sTuD. 35-54 (2011); L. Bautista, The Legal Status of the Philippine Treaty Limits in International Law,
1 AegeAn Rev. l. seA & mARiTime l. 111-139 (2010); L. Bautista, The Historical Background, Geographical Extent and
Legal Bases of the Philippine Territorial Water Claim, 8 J. comp. AsiAn Dev. 365-395 (2009); L. Bautista, The Philippine
Treaty Limits and Territorial Water Claim in International Law, 5 soc. sci. DilimAn 107-127 (2007).