Comments on Chinese claims
Question:
But what about the historical claim of China over Bajo de Masinloc (Scarborough Shoal)? Does China have superior right over Bajo de Masinloc on the basis of its so-called historical claim? China is claiming Bajo de Masinloc based on historical arguments, claiming it to have been discovered by the Yuan Dynasty. China is also claiming that Bajo de Masinloc has been reflected in various official Chinese maps and has been named by China in various official documents.
Answer:
Chinese assertions based on historical claims must be substantiated by a clear historic title. It should be noted that under public international law, historical claims are not historical titles. A claim by itself, including historical claim, could not be a basis for acquiring a territory.
Under international law, the modes of acquiring a territory are: discovery, effective occupation, prescription, cession and accretion. Also, under public international law, for a historical claim to mature into a historical title, a mere showing of long usage is not enough.
Other criteria have to be satisfied, such as that the usage must be open, continuous, adverse or in the concept of an owner, peaceful and acquiesced by other states. Mere silence by other states to one’s claim is not acquiescence under international law. Acquiescence must be affirmative such that other states recognize the claim as a right on the part of the claimant that other states ought to respect as a matter of duty. There is no indication that the international community has acquiesced to China’s so-called historical claim.
Naming and placing on maps are also not bases in determining sovereignty. In international case law relating to questions of sovereignty and ownership of land features, names and maps are not significant factors in the determination of international tribunals’ determination of sovereignty.
Question:
What about China’s claims that Bajo de Masinloc is traditional fishing waters of Chinese fishermen?
Answer:
Under international law, fishing rights are not a mode of acquiring sovereignty (or even sovereign rights) over an area. Neither could it be construed that the act of fishing by Chinese fishermen is a sovereign act of a state nor can it be considered a display of state authority. Fishing is an economic activity done by private individuals. For occupation to be effective there has to be clear demonstration of the intention and will of a state to act as sovereign and there has to be peaceful and continuous display of state authority, which the Philippines has consistently demonstrated.
Besides, when Unclos took effect, it has precisely appropriated various maritime zones to coastal states, eliminating so-called historical waters and justly appropriating the resources of the seas to coastal states to which the seas are appurtenant. “Traditional fishing rights” is in fact mentioned only in Article 51 of Unclos, which calls for archipelagic states to respect such rights, if such exist, in its archipelagic waters.
It should also be noted, that in this particular case, the activities of these so-called fishermen can be hardly described as fishing. The evidence culled by the Philippine Navy showed clearly that these are poaching, involving the harvesting of endangered marine species, which is illegal in the Philippines and illegal under international law, specifically the CITES.
B. Basis of sovereign rights
As earlier indicated, there is a distinction between the rocks of Bajo Masinloc and the waters around them. The question of ownership of the rocks is governed by the principles of public international law relating to modes for acquiring territories. On the other hand, the extent of its adjacent waters is governed by Unclos. The waters outside of the maritime area of Bajo de Masinloc are also governed by Unclos.
As noted, there are only about five rocks in Bajo de Masinloc that are above water during high tide. The rest are submerged during high tide. Accordingly, these rocks have only 12 nautical miles maximum territorial waters under Article 121 of Unclos. Since the Philippines has sovereignty over the rocks of Bajo de Masinloc, it follows that it has also sovereignty over their 12 nautical miles territorial waters.
Question:
But what about the waters outside the 12 nautical miles territorial waters of the rocks of Bajo de Masinloc, what is the nature of these waters including the continental shelves? Which state has sovereign rights over them?
Answer:
As noted, Bajo de Masinloc is located approximately at latitude 15°08’N and longitude 117°45’E. It is approximately 124 nautical miles off the nearest coast of Zambales. Clearly, the rocks of Bajo de Masinloc are within the 200 nautical miles EEZ and continental shelf of the Philippines.
Therefore, the waters and continental shelves outside of the 12 nautical miles territorial waters of the rocks of Bajo de Masinloc appropriately belong to the EEZ and continental shelf of the Philippines. As such, the Philippines exercises exclusive sovereign rights to explore and exploit the resources within these areas to the exclusion of other countries under Unclos. Part V of Unclos, specifically provides that the Philippines exercises exclusive sovereign rights to explore, exploit, conserve and manage resources whether living or nonliving, in this area. Although other states have the right of freedom of navigation over these 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 nautical miles EEZ and continental shelf. To do otherwise would be in violation of international law, specifically Unclos.
Therefore, the current action of the Chinese surveillance vessels within the Philippine EEZ is obviously inconsistent with its right of freedom of navigation and in violation of the sovereign rights of the Philippines under Unclos. It must also be noted that the Chinese fishermen earlier apprehended by Philippine law enforcement agents may have poached not only in Bajo de Masinloc but likely also in the EEZ of the Philippines. Therefore, these poachers have violated the sovereign rights of the Philippines under Unclos.
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