The Philippine Claim to Bajo de Masinloc in the Context of the South China Sea Dispute

• Author: Lowell B. Bautista
• Pages: 497-529

The Philippines

497

VI JEAIL 2 (2013)

Lowell B. Bautista

∗

The Philippine claim to Bajo de Masinloc, otherwise referred to as Scarborough

Shoal, finds solid basis in international law. 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 principles of international law and

consistent with the United Nations Convention on the Law of the Sea, which both

      

the Philippine claim over Bajo de Masinloc particularly focusing on the 2012

      

Philippines against China over the West Philippine Sea.

Keywords

Philippine claim, Scarborough Shoal, Bajo de Masinloc, South China

Sea

The Philippine Claim

to Bajo de Masinloc

in the Context of the

South China Sea Dispute

∗ Lecturer of law at the University of Wollongong. B.A. cum laude / LL.B. (Philippines), LL.M. (Dalhousie), Ph.D.

(Wollongong). The author is grateful to Professors Jay Batongbacal, Aileen Baviera, and Diane Desierto for their

helpful comments. The views expressed in this paper are those of the author and do not represent the official position

of the Philippine Government. The author may be contacted at: lowellbautista@gmail.com /Address: School of Law,

University of Wollongong, Wollongong, NSW 2522 Australia.

DOI: http://dx.doi.org/10.14330/jeail.2013.6.2.08

REGIONAL FOCUS & CONTROVERSIES

498 Lowell Bautista

1. Introduction

The Philippine claim to Bajo de Masinloc, otherwise referred to as Scarborough

  

1

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.

2

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



3

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.

4

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.

5

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.

6

In this regard, the non-

inclusion of the features within the limits of the Treaty of Paris is immaterial and of

no consequence.

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, [1994] 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,

2013).

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).

The Philippines

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VI JEAIL 2 (2013)

The Philippine title over the insular features of Bajo de Masinloc is not founded

on UNCLOS. The UNCLOS does not address competing territorial claims, which

is governed by general principles of international law relating to the acquisition

of territory. However, the maritime entitlement of the features of the shoal as well

as the nature and the corresponding rights and jurisdiction over the expanse of

water around these features are properly within the framework of UNCLOS. It is

indisputable that Bajo de Masinloc is within the Exclusive Economic Zone (“EEZ”)

of the Philippines and the continental shelf of the Philippine archipelago, over

   

explore, exploit, conserve and manage living and non-living natural resources in the

superjacent waters as well as in the continental shelf.

7

Bajo de Masinloc is not part of

the Kalayaan Island Group (“KIG”) or the Spratlys.

8

The Philippine claim over Bajo

de Masinloc is distinct from and independent of the Philippine claim over KIG.

9

The long-standing territorial and maritime jurisdictional disputes over the

South China Sea have endured for decades. Despite the intermittent diplomatic

disagreements and occasional threat of armed hostilities elsewhere in the South

China Sea, especially over the Spratlys, Bajo de Masinloc have been relatively

uneventful and peaceful. However, in recent times, Bajo de Masinloc has attained

notoriety as tension in the region rose to alarming levels over a protracted stand-

off between the Philippines and China in 2012 and continue to be contentious as

       

the Philippines against China in 2013 over the West Philippine Sea and currently

pending with the Permanent Court of Arbitration.

This research aims to examine the Philippine claim over Bajo de Masinloc. This

paper will be of five parts including Introduction and Conclusion. Part two will

provide an overview of the complex nature of the territorial and maritime dispute

over Bajo de Masinloc within the context of the dispute over the South China Sea.

It will discuss the geography and strategic importance and economic resource

potential of Bajo de Masinloc contrasting the Philippine and Chinese claims over the

South China Sea. Part three will discuss the Philippine claim over Bajo de Masinloc.

This part will expound on the geographical extent, legal and historical bases of the

Philippine claim and sovereign acts performed by the Philippine government over

7 UNCLOS arts. 56 (1)(a) & 77(1). It is also entitled to a 12 nm territorial sea under Article 121(3) of UNCLOS, where the

Philippines exercises full sovereignty and jurisdiction as provided for in Article 2 of UNCLOS.

8 Supra note 4.

9 J. ARReglADo, KAlAyAAn: hisToRicAl, legAl AnD poliTicAl BAcKgRounD (1982); H. Yorac, The Philippine Claim to the

Spratly Islands Group, 58 philippine l. J. 172 (1983).