By Adolfo Quizon Paglinawan

 

Part 24: Where the Philippines want War, China seeks Diplomacy

As early as a post on April 27, 2016 by Hue Viet at WordPress.com, authored by Rosa Tran and David Ha, Scarborough Shoal has been touted to be the next site of China’s strategic construction project in the South China Seas.

According to old intelligence gathered by American defense officials, China had plans to build an island and situate military forces on the Scarborough Shoal, according to The Washington Free Beacon.  A detailed dredging plan for Scarborough Shoal was also posted on the Super Camp Military Forum website on March 9, 2016 that included satellite photographs purportedly based on a construction bid proposed by the “Huangyan Island Township,” a municipality created under what China claims is part of Zongsha Islands.

A graphic with one photo outlined the development plan, with three Chinese guided-missile frigates at a wharf at the southern opening of the shoal, an airport and runway at the northern end, an electrical plan, a water treatment plant, a residential building, a hotel, and a “travel holiday” area.

U.S. defense officials, however, said. it was not clear whether the post reflects the actual plan of development or only at the conceptual stage.

The report said the press release was labeled “invitation to bid” and was based on a press release published online on December 15, 2015 by Tianjin Dredging Co., a subsidiary of the China Communications Construction Company. It added that Tianjin has commissioned another company, Zhenghua Heavy Industry, to build a dredging ship expected for delivery by July 2017. The electric-powered ship will be capable of digging up sand at a depth of up to 115 feet—an indication China plans a harbor deep enough to accommodate larger warships once the shoal is fully developed.

But this was almost ten years ago.

Conceptual twist

What China has announced a few days ago was far from what US intelligence had leaked to the Washington Free Bacon.

A nature reserve is a protected area that primarily focuses on the long-term conservation of species and natural processes to preserve ecosystems, plants, and animals, with human access and recreation usually restricted to allow for scientific research and education. It serves as crucial refuges for endangered species and protects natural landscapes from human impact.

The reserve will cover more than 3,500 hectares at Huangyan Dao, the Chinese name for Scarborough Shoal, with its coral reef ecosystem as the main protection target, according to China’s National Forestry and Grassland Administration.

In a statement, China’s cabinet, the State Council, called the establishment of the nature reserve “an important guarantee for maintaining the diversity, stability and sustainability of Huangyan Island’s natural ecosystem.” It also called for stronger enforcement against “illegal activities” at the reserve.

Chinese experts have hailed the move as an important step in defending China’s territorial sovereignty and signaled it could set a precedent for other maritime features in the South China Sea.

A map released by the Chinese government shows the entire northeastern rim of the atoll designated as the reserve, which consists of a “core zone” flanked by two “experimental zones.”

Under Chinese law, a core zone is strictly off limits, while an experimental zone allows scientific research, educational activities as well as tourism. Construction is forbidden in core zones but allowed in experimental zones. Foreigners must obtain approval from Chinese authorities to enter any reserve.

I am endlessly excited about this because in 1990, upon the invitation of then Kalibo Mayor Allen Quimpo, I joined a group of local government officials and students in a ceremonial tree-planting at Barangay New Buswang. The 500 sqm mangrove In 2013demonstration plot we accomplished that day is now a 220 hectare Bakhawan Nature Study and EcoPark.

In November 2013, while the nearby provinces were ravaged by tsunamis caused by Supertyphoon Yolanda (Haiyan), Aklan was spared because the thick mangrove outgrowth shielded the most populated and vulnerable northeast portion of the province from the catastrophic storm surge.

Today, the eco-park is considered as one of the most popular tourist attractions in Panay Island. Its centerpiece of the Eco-Park is a mile-long bamboo trail that takes visitors deep into the mangrove forest that has become a home to different species of mangrove trees and a sanctuary for various types of birds and marine species. It has also established the Center for International Mangrove Studies.

Protests

The Department of Foreign Affairs, however, formally lodged a diplomatic protest to air its “strong and unequivocal” objection to China’s plan, while another top official claim it could create a pretext for the feature’s “eventual occupation”.

National Security Adviser Eduardo M. Ano said that Beijing’s move was “less about protecting the environment and more about justifying its control over a maritime feature that is “part of the territory of the Philippines” and its waters lie within the exclusive economic zone of the Philippines.”

Ano, however did not explain why Scarborough Shoal is part of Philippine territory and how its maritime features infringe on any EEZ. He also did not say that the EEZ he claims is contested by five parties, China, Vietnam, Malaysia, Brunei and Taiwan, nor did he explain how an EEZ can bestow “territorial sovereignty”.

US Secretary of State Marco Rubio criticized China’s reported plan as “destabilizing” regional stability”:

“Beijing claiming Scarborough Reef as a nature preserve is yet another coercive attempt to advance sweeping territorial and maritime claims in the South China Sea at the expense of its neighbors, including by preventing Filipino fishermen from accessing these traditional fishing grounds.”

Rubio did not say that the Chinese is possession of and has sovereignty over Scarborough Shoal. He also lied about China preventing Filipino fishermen access to its fishing grounds and forgot that the US is not a coastal nor a claimant state in the South China Seas, or a member of the UN Convention of the Law of the Sea.

Responding to the Philippine government yesterday, Chinese Foreign Ministry spokesperson Lin Jian denied the wild accusation that the Shoal had ever been part of Philippine territory and rejected what it called “groundless accusations or so-called protests” from Manila.

“We urge the Philippines to immediately cease its infringements, provocations, and wanton hype, so as to avoid adding complicating factors to the maritime situation,” Lin said.

Scarborough Shoal is located at 15⁰08’00N – 117⁰46’00’’E, which is 119.6 miles from Luzon and 460.3 miles from mainland China. It has six small rocky protrusions that remain above water at high tide with a perimeter of 46 km (29 mi) covering an area of 150 square kilometers, including an inner lagoon.

Significantly, last December, Geng Shuang, China’s deputy permanent representative, registered and deposited to the United Nations the Statement on the Baselines of the Territorial Sea Adjacent to Huangyan Dao (also known as Huangyan Island), its corresponding Chart and supporting documents, to demonstrate China’s determination to maintain its territorial sovereignty and maritime rights by fulfilling its obligations under international law.

The Chinese call it  Huangyan Dao and considers this feature as part of the Zhongsha Islands, that were surrendered by Japan back to China in the 1952 Treaty of Taipei after World II, and ipso facto by the 1972 Communique between Japan and the Peoples Republic of China, one year after the latter was formally recognized as the One China and the legitimate government of China by the United Nations Resolution No. 2758.

The Arbitral Ruling that was issued July 2016, however, clarified that the feature is a “rock” or high-tide elevation that according to UNCLOS, is entitled to 12 nautical miles of territorial sea.

Claims for exclusive economic zone by any contesting party, like the Philippines, cannot overlap or protrude into a territorial sea for the simple reason that the latter’s sovereign rights are inferior to the absolute components of sovereignty in international law including UNCLOS, namely the land territory (in this the rock), its internal waters, the adjacent belt of the territorial sea (up to 12 nautical miles from the baseline), the air space above the territorial sea, and the seabed and subsoil beneath it.

Before 1997, the Philippines never expressed intentions to claim sovereignty over Scarborough Shoal. In fact, the composition and scope of the Philippine territory was clearly determined by treaty limits at 118ºE longitude, established by Treaty of Paris between Spain and the United States in 1898, the Treaty of Washington between Spain and the United States in 1900 and the “Anglo-American Convention Treaty of 1930.

Scarborough is at 117º44′25″ E longitude and 15º13′09″ N latitude which is nine nautical miles outside of Philippine treaty limits.

Republic Act 3046 set by Philippines about its territorial sea baseline in 1961 and the amendment by Republic Act 5446 of the territorial sea baseline by Philippines in 1968 have both clearly reaffirmed that 118-degree east longitude is the western limit of the Philippine territory.

Republic Act 9522 in 2009 amended 3046 and 5446 and redefined our latest archipelagic baselines conforming to UNCLOS as close as possible to our coastlines and internal waters. The government has also registered and deposited the same together with the pertinent charts and documentation with the United Nations Secretary-General on April 21, 2009.

But that submission left out the Kalayaan Island Group and Scarborough Shoal. Why?

While it is true that RA9522 included the Kalayaan Island Group and Scarborough Shoal within the language of the law under its Section 2 as a “regime of islands”, assumably by virtue of Article 121 (3) of the convention, the Philippine government has not resurveyed the new baselines of KIG and has not officially surveyed baselines for Bajo de Masinloc, and therefore cannot register or deposit such information with the United Nations.

The archipelagic baselines drawn by Presidential Decree 1596 for the Kalayaan Island Group cannot apply to its inclusion into RA 9522, because the 2016 Arbitral Award in Paragraph 574 ruled “that the Philippines could not declare archipelagic baselines surrounding the Spratly Islands” as provided for in Article 47 of UNCLOS.

This is why, as we speak, the Philippines has no official map.

The National Mapping and Resource Information Authority claims it published an official national map on July 2,2021. On the same day, Manila Times columnist and former ambassador Rigoberto Tiglao requested the government office for a copy under the Freedom of Information Act, and his request, as well all his previous attempts, have been denied. (Tracking # DENRNAMRIA-062736928352)

In its Paragraph 334, the Arbitral Award clarified that Scarborough Shoal is a “hightide elevation” under the subset of a “rock” and therefore can be a subject of claims for “land sovereignty” and an entitlement to 12 nautical miles of territorial sea, but nowhere in the 479 pages of the document can you find that it was ruled as belonging to the Philippines. The arbitration was instituted under UNCLOS which has authority over maritime features but does not have jurisdiction in the determination of land sovereignty.

The Philippines celebrates Arbitral Award as a victory only because it ruled that China’s nine-dash line mapping has no legal basis under a single treaty UNCLOS, but former magistrate Antonio Carpio has been spreading the yarn that this rock belongs to the Philippines by virtue of 1734 Murillo Velarde map that he got from a cartography store at the Glorietta mall in Makati.

We have to cram a lot of homework but our leaders insist on mere propaganda and pining behind the empty promises of the Americans.

We have also become clumsy and mediocre. the National Maritime Zones Act, which President Marcos Jr. signed in November 2024, codified UNCLOS and the Arbitral Award as part of the law and yet legislated the 12 nm territorial sea around Scarborough and our claimed “rocks” in what is now Kalayaan “regime of islands” as part of a so-called “west Philippine sea”.

What an oxymoron!

Double checking with the International Hydrographic Organization, the reply I got was: “IHO does not currently recognize the term “West Philippine Sea” in its official Limits of Oceans and Seas publication. The area, which the Philippines refers to …as part of its Exclusive Economic Zone is geographically known as a part of the South China Sea.”

IHO acknowledged receiving submissions for the name “West Philippine Sea” proposing areas for inclusion, but these have remained pending due to the need for mutual consultation among disputing parties.

But IHO may consider this tenuous because under the totality of international law, and even under UNCLOS, no country can claim sovereignty on land and sea territory on the sheer basis of exclusive economic zone.

The Philippine claim besides being absurd, maliciously uses sovereignty and EEZ’s sovereign rights interchangeably despite the fact that they are not the same and in fact, asymmetrical in their jurisdictional implications. This may be good for propaganda, but not for winning for official recognition.

That is why in front of the Tricom of the lower house of Congress last June 5, I called the National Maritime Zones Act as a stupid law, incorporating such into public record.

My language may not have been respectful, but instead of challenging their spirit of inquiry and shaking the lawmakers to sobriety, they seemed resigned to stupidity as one of them said, “if it is a stupid law, then we are all stupid”.

I wonder – when will the truth set them free? #

To be continued.

codified UNCLOS and the Arbitral Award as part of the law.