Community Forum on the Spratly and Scarborough Shoal

(Lupang Hinirang: Issues on Philippine Maritime Jurisdiction, May 15, 2012, Philippine Consulate Lanai, 2433 Pali Highway, 5:30 pm.)

Four panelists spoke on the Spratly Islands and the raging issue stoked by the Scarborough Shoal jurisdictional conflict between China and the Philippines. They were Dr. Belinda A. Aquino, Dr. Serafin P. Colmenares, Jr, Dr. Federico V. Magdalena, and Consul General Julius D. Torres. Dr. Raymund Ll. Liongson moderated the forum.

Below is the gist of the presentation, as summarized by Dr. Serafin P. Colmenares, Jr.

The Extent of Philippine Maritime Territory

The first panelist was Dr. Serafin Colmenares Jr., executive director of the Office of Language Access, State of Hawaii, who did his Ph.D. dissertation on the Sabah issue and authored a paper on "Philippine Territorial Claims: Problems and Prospects" as part of the Philippine Studies Discussion Paper Series of the UH Center for Philippine Studies in 1990. He opened the forum by providing an overview of the basis and extent of the Philippines' maritime territory. Using a map, he identified the following as comprising Philippine maritime territory: (1) areas set by international treaties; (2) its inland or archipelagic waters; (3) its territorial sea; (4) its claim to the Kalayaan Islands; (5) its exclusive economic zone or EEZ; and (6) its continental shelf (CS).

The maritime areas defined by international treaties (enclosed within the rectangular red line on the map) are those set by the Treaty of Paris of 1898, by which Spain ceded the Philippines to the United States; the Convention of 1902 between the U.S. and Great Britain, which identified islands belonging to the Philippines and British North Borneo; the Washington Treaty of 1930 between the U.S. and Great Britain, which further defined the boundary between the Philippines and British North Borneo; and the exchange of diplomatic notes of 1946-1948 between the Philippines and Great Britain, which transferred the administration of certain islands, e.g. the Turtle Islands, from the British North Borneo Company to the Philippines. The maritime areas covered by these treaty limits were considered as Philippine territorial waters based on historic rights; they are not, however, recognized as such under the United Nations Conference on the Law of the Sea (UNCLOS) which has set a definite, and lower, limit on the extent of a country's territorial waters.

The Philippines' inland waters, on the other hand, refer to the waters within and between the islands comprising the Philippine archipelago (the dark blue area in the map). This is based on the archipelago doctrine which allows archipelagic states to identify points (based on the low water mark) around the archipelago and connecting these points using the straight baselines method. Eighty such baselines encompass the Philippine archipelago, making the Philippines a single, unified, compact territory instead of being a conglomeration of several island groups due to the large expanse of water separating islands in certain parts of the country. Philippine jurisdiction over these internal waters is, however, subject to the right of innocent passage by ships of foreign states.

The territorial sea of the Philippines refers to the maritime areas that extend twelve nautical miles from its baselines as laid down by UNCLOS (the aqua blue area in the map). Again, Philippine jurisdiction over its territorial sea is subject to the right of innocent passage by other states. States can actually claim an additional twelve nautical miles beyond its territorial sea - known as its contiguous zone - for purposes of safeguarding commerce and customs laws, but the Philippines so far has not seen it fit to make a claim to its contiguous zone. In areas where the 12-mile territorial sea limit overlaps with that of another state, as in the case of the Philippines and the Malaysian state of Sabah, the principle of equidistance is used.

The Philippine claim to the Kalayaan Islands - a group of islands, reefs, cays and rocks in the Spratly group, west of Palawan (the area enclosed by a red line on the left hand side of the map) - was based on an older claim by Tomas Cloma who discovered the islands in 1952, named it Freedomland (Kalayaan) but later relinquished it to the Philippine government upon pressure from the martial law regime. The Kalayaan Islands is currently a municipality of Palawan, with its own mayor. There are other claimants to this group of islands aside from the Philippines - China, Taiwan, Vietnam, Malaysia and Brunei - and all, except Brunei, have proceeded to occupy some of the islands they claim. The Philippines occupies four of the islands and has built an airstrip on one (Pag-asa). If the Philippines' claim to these islands is recognized, it would have the effect of generating new baselines and additional territorial waters around them. The competing claims between the claimant nations have not been settled to date.

The exclusive economic zone or EEZ of the Philippines refers to a maritime area that extends up to 200 nautical miles from the country's baselines as laid down by the UNCLOS (light blue area in the map). Scarborough Shoal, the object of the dispute between the Philippines and China, falls within the Philippines' EEZ. Under the UNCLOS, any overlap in the EEZ of neighboring countries is to be settled using the equidistance principle. In addition, the existence of traditional fishing rights by a state in another state's EEZ does not provide legal rights but has to be settled through negotiations between claimant nations.

Finally, the continental shelf of the Philippines refers to the seabed and subsoil under its EEZ, extending 200 nautical miles from its baselines. This can be extended for an additional 150 nautical miles if the continental shelf goes beyond 200 nautical miles. On this basis, the Philippines filed a claim to Benham Rise, a maritime area east of Luzon, which is supposed to have natural gas and mineral deposits. The claim, filed with UNCLOS in 2009, was approved in April 2012. There is no other claimant to this area.

Dr. Colmenares concluded his presentation with the observation that while Philippine maritime claims have greatly expanded its territory, enforcement of its jurisdiction over said territory is problematic given the extent of her claimed maritime territory and the presence of competing claims from other states.

The Kalayaan Islands

The second panelist was Dr. Federico Magdalena of the UH Center for Philippine Studies, who is from Palawan and a long-time faculty at the Mindanao State University.

Titling his presentation "West Philippine Sea/South China Sea? A View from the Local," Dr. Magdalena discusses indigenous perspectives of the conflict over Spratly islands and the Scarborough Shoal between China and the Philippines. He notes that much of what is now known as the Spratly islands was claimed by Tomas Cloma shortly after World War II, which he called Kalayaan ("freedom" in Pilipino). That was after the Japanese empire lost control of much of Southeast Asia and the Philippines, including their maritime territories. But Cloma relinquished Kalayaan to the Philippines in 1978, which was then incorporated as a town of Palawan. The story of how and why he gave it up is checkered. Cloma is from Bohol and the founder of the PMI Colleges (formerly Philippine Maritime Institute). Known as the Kalayaan Group of Islands (KIG), it is Palawan's smallest town with a population of 114 residents, mostly fishermen and soldiers, as of the 2007 Philippine census. The current Mayor of Municipality of Kalayaan is Hon. Mayor Eugenio B. Bito-Onon Jr.

Kalayaan or KIG consists of 7 islands, 2 reefs and 2 shoals, with a total area of 84 hectares. At the heart of KIG is the island known as Pag-asa, the second largest island in the Spratly (the first is owned by Taiwan). Pag-asa is mostly inhabited, unlike the other two smaller islands, with a landing strip for the Philippine military. These three islands, including the reefs and shoals, are about 200 nautical miles at the shore of Palawan, well within the prescribed limit for Exclusive Economic Zones (EEZ) and Continental Shelf (CS) by the United Nations Convention on the Law of the Sea (UNCLOS) that was approved in 1982.

Because of its proximity to Palawan, fishermen from this province frequent the KIG since it is a rich breeding ground for various fish species since time immemorial. This is particularly true of the Scarborough Shoal, which is closer to Zambales at 120 nautical miles. Magdalena noted that local folk songs and narratives among the Cuyonen, including the Muslims and other natives from the western side of Palawan, support this view.

But the most important claim to the Kalayaan islands comes not from the Palawan folks who have visited them on a daily basis but from the Moros (Muslims) of Sulu. Such claim is historically grounded; it began with the establishment of the Sulu sultanate in the middle of the 15th century. The last reigning Sulu sultan, Muhammad Fuad Abdullah Kiram, insists that Sulu and Palawan, including the nearby seas, is part of the Tausug ancestral domain which antedates the Spanish colonization of the Philippines (see map). The Sulu sultanate has proprietary rights over the whole Sulu archipelago, Palawan, and North Borneo (now part of Malaysia).

China appears to recognize the Sulu sultanate and its sovereignty. Early on, a brisk trade had existed between the Tausug Moros and Chinese merchants, which ushered in the rise of the Sulu sultanate for about 100 years during the 18th century. Pearls, tortoise, sea cucumber (tripang), and birds' nests are the most valued commodities exchanged for Chinese goods (tea, opium, gunpowder, etc.). Palawan basks in birds' nests, found in abundance in the town of El Nido (Spanish for nest). But what seems remarkable in the historic relations between the Chinese and the Tausug is the royal visit of Sri Paduka Batara in 1417, with two other local leaders, to pay tribute to the Ming Emperor Yung Le. Paduka was unable to return home, he died within a month of stay there. His royal entourage went back to Sulu, except his two sons Antulu and Wunhala who cared for his tomb in Shantung, southern China. Today, their descendants are still there, known by their Chinese names "An" and "Wun."

In conclusion, Dr. Magdalena argues that the concept of ancestral domain reinforces the Philippine claim and sovereignty over the Kalayaan islands. It is also implicitly recognized by China's leaders since the Ming period.

Philippine Position on the Scarborough Shoal Issue

The next panelist was Philippine Consul General Julius Torres who expounded on the Philippine position on the Scarborough Shoal (Bajo de Masinloc) issue.

Bajo de Masinloc is not an island but is a ring-shaped coral reef, which has several rocks encircling a lagoon. It is part of the municipality of Masinloc, province of Zambales. It is located 124 nautical miles west of Zambales and is within the 200 nautical mile exclusive economic zone (EEZ) and Philippine continental shelf. A distinction has to be made between the rock features of Bajo de Masinloc and the larger body of water and continental shelf where it is situated.

The Philippine claim to sovereignty over Bajo de Masinloc is based on effective occupation and effective exercise of jurisdiction since its independence. The name itself (which translates to "under Masinloc") identifies the shoal as a particular political subdivision of the Philippine province of Zambales known as Masinloc. Maps of the area published in 1734, 1808, 1939 and 1990 showed Bajo de Masinloc as part of Zambales. Philippine flags have also been erected on some of the rocks of the shoal. In 1965, the Philippines built and operated a small lighthouse although this lighthouse is no longer operational. 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. In 2009, when the Philippines passed an amended Archipelagic Baselines Law fully consistent with UNCLOS, Bajo de Masinloc was classified under the "regime of islands" consistent with the Law of the Sea.

The Philippines also exercises sovereign rights over the waters outside and around Bajo de Masinloc under UNCLOS. This includes not only the 12 nautical mile territorial waters over which it is entitled but also the waters beyond which are within the Philippines' exclusive economic zone and continental shelf. As such, the Philippines has exclusive sovereign rights to explore and exploit the resources within the said areas to the exclusion of other countries under UNCLOS. Although other states have the right of freedom of navigation over the said areas, such rights could not be exercised to the detriment of the internationally recognized sovereign rights of the Philippines to explore and exploit the resources in its 200 nm EEZ and CS.

Commenting on the Chinese claim to Bajo de Masinloc, Consul General Torres maintains that the Chinese assertion based on historical claims must be substantiated by a clear historic title. Under international law, historical claims are not historical titles and could not be a basis for acquiring territory. For a historical claim to mature into a historical title, a mere showing of long usage is not enough - the usage must be open, continuous, and acquiesced by other states. There is no indication that the international community have acquiesced to China's so-called historical claim. Insofar as China's claim that Bajo de Masinloc are traditional fishing waters of Chinese fishermen, it is to be noted that under international law, fishing rights is not a mode of acquiring sovereignty or sovereign rights. Fishing is an economic activity done by private individuals and cannot be considered as a display of State authority. Besides, the so-called fishing activities actually are poaching activities involving the harvesting of endangered marine species which is illegal in the Philippines and under international law. Finally, since the Philippines has sovereign rights over its exclusive economic zone and continental shelf, the presence and action of the Chinese surveillance vessels in the area are obviously inconsistent with its right of freedom of navigation and in violation of the sovereign rights of the Philippines under UNCLOS.

The consul general ended his presentation by saying that the Philippines is committed to the process of consultations with China towards a peaceful and diplomatic solution to the situation. While working towards a diplomatic solution, however, the Philippine Coast Guard is present in the area and is continuing to enforce relevant Philippine laws.

The Geopolitical Dimensions of Philippine Maritime Claims

Dr. Belinda Aquino, retired Professor of Political Science and Asian Studies at the University of Hawaii at Manoa, where she was also the long-time Director of the Center for Philippine Studies, gave the final presentation. She presented a broad historical perspective of the issue, noting that " maritime territorial disputes have been occurring since the beginning of time, not only in Asia, but in virtually all parts of the world." She cited several examples such as the West Indian Ocean, which has become the world's hottest piracy spot since 2008 with the collapse of law and order in Somalia. Likewise, the Northern Bay of Bengal has had its share of maritime chaos in recent years involving Bangladesh, India and Burma (now Myanmar) about boundary disputes, some of which are now before the International Tribunal for the Law of the Sea in The Hague.

Most of the claims in the territorial waters are motivated by the presence of extensive natural gas reserves and mineral resources, which could amount to vast economic fortunes for the claimant states.

But Aquino further discussed the major geopolitical implications of the South China Sea conflicts among the various nations, including the Philippines, which have claims on one or more parts of the disputed territorial waters. She summarized these geopolitical issues as involving the role of the major "stakeholders" in the area, such as the United States, which have historical, political, economic and strategic interests in the region.

In a 2010 ASEAN forum in Hanoi, for example, U.S. Secretary of State Hillary Clinton offered to "mediate" the South China Sea disputes, which triggered an angry response from China of "American interference" in China's affairs. Meanwhile, China itself has been showing an aggressive posture over time, as in the case of the "Scarborough Shoal," which the Philippines is claiming as its very own by virtue of historical factors and geographical proximity.

The Philippines seems wedged, according to Aquino, a political scientist, between the proverbial "rock and a hard place." It has to navigate its delicate position between China and the United States. It would not be realistic to force a showdown with China, its giant neighbor in East Asia, for various historical, economic, geographic and cultural reasons spanning several centuries. Philippine and Chinese trade was already flourishing and vibrant long before the West appeared in what was to become the Philippine nation. Chinese culture has had an enduring legacy in Philippine society.

On the other hand, the Philippines likewise has compelling reasons not to alienate the U.S., with whom it has a long-standing "special relationship." Though the two U.S. military bases are gone from Philippine soil, the Mutual Defense Treaty and other security agreements and alliances between the two countries established over a 100-year period remain, and the U.S. has been escalating its military assistance to its former colony in recent years.

Aquino ended her "big picture" presentation with an observation from Dr. Mark Valencia, a research scholar who has followed the developments in the Spratly waters closely since his days as a research associate at the East-West Center. For a peaceful future in the area, according to Valencia, it will take "genuine goodwill, considerable self-restraint and probably a grand formal or informal compromise- as well as ambitious and clever diplomacy - to achieve and maintain."

Open Forum

The presentations elicited a lively question-and-answer period. Alluding to the "elephant versus an ant" comparison, attendees were particularly interested in what the Philippine government plans to do in the face of a seemingly belligerent China, and were intrigued about what a possible "compromise" would look like. The Philippine consul general assured the audience that while the Philippines is looking for a diplomatic solution or compromise, its sovereignty over Bajo de Masinloc is non-negotiable.

In informal discussions after the forum, it was the consensus of the organizers as well as attendees that more community forums on issues affecting the Philippines should be held and on a regular basis.