Dr. Jay L. Batongbacal
Director, UP Institute for Maritime Affairs & Law of the Sea
Lecture delivered for the Cartographic Exhibit Forum
September 26, 2014
De La Salle University
Ladies and gentlemen, good afternoon.
Thank you for your kind invitation to speak before you today on the occasion of the exhibit entitled “Historical Truths & Lies: Scarborough Shoal in Ancient Maps.” It is indeed an honour to be asked to deliver a piece on the heels of Senior Associate Justice Antonio T. Carpio’s excellent analysis delivered a few months ago, and now echoing in the form of a map exhibit. But rather than attempt to duplicate Justice Carpio’s research, allow me to share with you some additional thoughts, snippets of historical facts, and documentary evidence that will round out the story he has been able to tell. These are facts that are of public record, and readily available to all.
I will begin with the basic question of why a few rocks and a reef called Bajo de Masinloc (Scarborough Shoal) is important to the Philippines. Then I shall show you the basis and evidence of Philippine sovereignty over Bajo de Masinloc. I shall show you that we do have stronger evidence and a better right to Bajo de Masinloc, notwithstanding China’s insistence on its claim. And then I shall try to throw in some ideas meant to provoke a serious and sanguine conversation about what the Philippines should do next in relation to our pending issues with China over Bajo de Masinloc.
The Importance of Bajo de Masinloc to the Philippines.
Bajo de Masinloc is a large coral atoll, about 10 miles in width, triangular in shape, located approximate 124 nautical miles west of Luzon. Parts of the barely submerged reef are awash at low tide, and some scattered rocks, from 0.3 to 3.0 meters high, are visible from a distance. South Rock, located at the southeastern extremity of the shoal, is the highest and largest elevation. The reef encloses a lagoon that varies in depth from 9 to 13 meters, but with many patches of as little as 1.7 meters depth. (Figure 1)
On the surface, it is a barren collection of nearly lifeless rocks. At high tide, the largest of these are barely enough to accommodate two men, much less support human habitation. This was established by the hydrographers of the Coast and Geodetic Survey Division of the National Mapping and Resource Information Authority (NAMRIA) during a survey mission conducted in 1997. They spent several days in the area as part of the effort to identify basepoints for the Philippine archipelagic baseline system which was enacted into law in 2009 through RA 9522.
Bajo de Masinloc is one of the oldest known fishing grounds of the Philippines, from its awakening as an independent nation-state. Previously, it was known as Scarborough Shoal, and published maps of the Commonwealth Period even included Scarborough Shoal among the natural resources of the Philippine Islands, particularly in its inventory of fishing banks.
Today, Bajo de Masinloc is known for its significant contributions to sustaining marine life in the West Philippine Sea, and the entire South China Sea. Philippine academic institutions like the Marine Science Institute have conducted studies and carried out projects on the shoal since the late 1980s. As more scientific data became available, they realized the importance of Scarborough Shoal as an offshore shelter, regeneration area, migration path, and food supply for the fisheries in, as well as around, the South China Sea. Its importance can be plainly seen in satellite images of chlorophyll concentrations in the water. Chlorophyll represents plankton, the base of the marine food chain; where the plankton go, the fish follow. One satellite image demonstrates the biological linkage between Bajo de Masinloc and the archipelago very clearly, showing a plume of plankton connecting the reef to the country’s waters. (Figure 2)
It is important to clarify that the Philippines’ interests in Bajo de Masinloc are not anchored on petroleum potential. Data from petroleum exploration and international marine scientific research activities have thus far convinced petroleum exploration companies that if any petroleum is to be found in the South China Sea, it will be in areas closer to the coasts. The US Energy Information Administration has identified the sedimentary basins that are of interest in the region, and these are located around and immediately west of Palawan, particularly Recto (Reed) Bank. But in the middle part of the South China Sea, including the area around Scarborough Shoal, the petroleum potential is nil. Contrary to popular perception, current Philippine interests in resources there are not about petroleum, but rather about more limited fishing interests. (Figure 3)
However, we do share a broader interest with the international community, in the freedom of navigation and full and free passage through the sea lanes of communication around Bajo de Masinloc, as well as the air passage routes of commercial aircraft. Bajo de Masinloc is strategically positioned as a vantage point from which to surveil shipping and air traffic in the South China Sea. Data from Automatic Identification Systems on board ships trace major routes; every day, hundreds of ships pass through the areas west and east of Bajo de Masinloc. Ships give it wide berth to avoid the risk of groundings and collisions. At the same time, hundreds of commercial aircraft, especially those that transit into or out of the Philippines, pass by or through the airspace of Bajo de Masinloc. The fact that Bajo de Masinloc also lies directly adjacent to Manila and Subic emphasizes its strategic importance for air and sea navigation. (Figure 4)
For these reasons, Bajo de Masinloc is the focal point of Philippine national interests on matters of environmental security, food security, and defense. It has an influence that is so disproportionately greater than the diminutive and barren rocks awash on its surface. It is for this reason that the Philippines views China’s blockade of Bajo de Masinloc with serious concern. Though technically not a military or naval action, it has the same effect. China’s Coast Guard has been maintaining a presence 24 hours per day, 7 days a week that actively keeps Philippine private and government ships from coming near the shoal. Filipino fishing vessels are sometimes able to come near, thus resulting in the reported water-cannon incident last year, but it is clear that the occasional Filipino fishing presence is merely upon the tolerance of individual Chinese ship captains, not a matter of policy.
China tries to justify its actions by asserting that it has sovereignty over the shoal, which it calls Huangyan Island. In April 2012, the Embassy of the People’s Republic of China published the basis of its claim to Bajo de Masinloc, through a paid advertisement in the local newspapers. In sum, China argues that it is entitled to Bajo de Masinloc on the ground that it first discovered the island, gave its name and incorporated it into its territory, and had always exercised jurisdiction over it. A serious examination of these grounds, however, bears out severe internal inconsistencies. Examination of the evidence shows the basis to be largely published fiction.
As to the claim of first discovery, China asserts that Chinese explorers discovered the shoal in the 13th century during the Yuan Dynasty. But the Yuan Dynasty was a foreign dynasty, established by Kublai Khan, and China was at the time merely part of the great Mongol Empire. If Bajo de Masinloc was indeed acquired by virtue of discovery, then such discovery could only be in the name of the sovereign, the Mongol Empire. Perhaps it should therefore be claimed by the remnant of the Mongol Empire, which is Mongolia, not China.
Be that as it may, as Justice Carpio points out and as seen on some of the maps in the exhibit, any ordinary person can see how tenuous this claim is. “Huangyan Island” never appears as such in any of the ancient maps of China, even after the Yuan Dynasty. We have two examples. In the “Hun Yi Jiang Li Li Dai Guo Du Zi Tu” (Map of the Entire Empire and Frontier Countries) made by Quan Jin in 1402, based on maps from the Yuan Period, the Philippines is included in the lower part of the map. But, it appears as only as a collection of small vague patches, indicating only the largest islands of Mindoro and parts of Palawan. Huangyan Island is not indicated at all. (Figure 5)
On the other hand, in the “Dong Han Hai Yi Tu” (Barbarian Countries of Southeast Seas) drawn by Lo Hsung-Hsien in the 15th century, again based on Yuan Dynasty maps, the Philippines appears as small blobs with markings for May-i (Mindoro) and Sansu (likely Calamian, Palawan, and Busuanga). Again, Huangyan Island is nowhere to be found.
Perusal of these maps of China based on information from the Yuan Dynasty period leads quickly to certain conclusions. One is that China of the Yuan period actually had very little information of the Philippines and its largest islands in terms of location, size, or shape. Chinese cartographers did not even give the Philippines much importance, as compared with Japan, Taiwan, and Hainan. Second, China at the time clearly did not have full and accurate knowledge of even the largest islands of our archipelago. If it could not even determine the location, size, or shape of Luzon, then much less could it identify the infinitesimal rocks and reef of Bajo de Masinloc. China could not possibly claim discovery in this period, since information from the period itself is non-committal.
Furthermore, Chinese records tend to indicate the reverse. According to them, as early as the 7th and 10th century, the ancestors of the Filipinos had established contact with China under the Tang Dynasty 700 years before the Yuan. Thus China knew very well that the islands of the Philippines were inhabited by coastal seafaring peoples. Chinese annals such as the “Chu Fan Chi” of Chau Ju Kuo even speak in fear of the slave-raiding expeditions of the Visayans, reaching as far north as the coast of Fujian Province. Thus, it was Philippine ancestors, not Chinese, who were the masters of the Southeast Asian seas.
Chinese records also speak of a lucrative trade in metals, weapons, musical instruments and jewellery reaching as far South as Butuan, one of the largest port polities of ancient times. These port polities were flourishing at a time when China withdrew into itself and abandoned trade with the outside world. It was the profitability of that trade that caused Chinese traders to lobby with their reclusive government to allow trade missions to and from Southeast Asia, and this eventually bore fruit.
So, if ever the Yuan Dynasty mariners came to the Philippines or any of its parts, it was because they knew that our ancestors were already there. These were not journeys of discovery of hidden places, but purposeful voyages to trade with known peoples and places.
As for the second basis of its claim, it bears noting that the name “Huangyan Island” was not on Chinese maps of the South China Sea until about 1983. The feature is reportedly indicated for the first time in the Chinese map of the South China Sea in 1935, and included as one of the features listed by the Water Mapping Committee in the original version of the now infamous 9 dashed lines map. The original map (containing 11 dashed lines), gave the reef the Sinicized name of Scarborough. Thus the very first name given for a place discovered in ancient times was the Chinese version of an English name given by English cartographers. This is stark evidence that as late as 1947, China did not even know of the shoal, and only became aware of it from British Admiralty charts.
In fact, Bajo de Masinloc does not receive any distinctly Chinese designation until it was renamed Minzhu Reef. The problem, however, is that it is listed as part of the Nansha Qundao, or the Spratly Islands. The Spratlys are a totally distinct group of islands some 260 nautical miles away from Bajo de Masinloc. It is difficult to conceive of a proper and effective naming of a place when its location does not even appear to be known. China did not call the place Huangyan Island until after 1983, nearly 40 years later, after it sent its first recorded hydrographic survey to the area without informing the Philippines. It is reasonable to surmise that the change in designation and grouping was a direct result of that modern survey; and that it was only in 1977 that China actually reached Bajo de Masinloc, and realized that it could be more than a reef.
The reason for its designation as an “island” is clear: it is the only feature above water in the imaginary Zhongshe Qundao that supposedly lies between the Paracels and the Philippines. As such, it is the only feature that can justify China’s claim to the existence of Zhongshe Qundao which includes the completely-submerged Macclesfield Bank.
If the location of what China now calls Huangyan Island was not even known and fixed until 1983, then it becomes eminently clear that the claim to continuous exercise of jurisdiction is unsubstantiated. For China, Huangyan Island only came into existence in 1983, and it was nothing more than a pinpoint on a map as far as its government was concerned. The only time it attempted to exercise any kind of jurisdiction over Bajo de Masinloc was in 1994, when it issued a permit to an amateur radio operator to set up an amateur radio station on the shoal, igniting the present day dispute over it.
Philippine Sovereignty over Bajo de Masinloc
In law, when a dispute arises and is brought for resolution by a third party, a claimant must rely on the strength of his own claim and not the weakness of the other’s. In a similar manner, we can now consider the basis and nature of the Philippines’ rights over Bajo de Masinloc, not only by pointing out the palpable weaknesses of China’s claims, but by stressing the stronger basis and evidence of Philippine sovereignty and jurisdiction over the shoal.
Perusal of the public record reveals that Philippine sovereignty over Bajo de Masinloc is clearly established beyond a shadow of doubt. It is the inevitable outcome of a process of consolidation of jurisdiction through acts a titre de sourverain, exercised over a specific location beginning during the Spanish colonial period and continuously exercised up until the present time. Such acts pre-date China’s uncertain claim, which can only be presumed to have been made only in 1947 at the earliest, when the Republic of China drew the original 11 dashed lines map and thereby enclosed Bajo de Masinloc. And even then it was merely a claim on paper, not preceded or accompanied by actual exercises of State power.
As demonstrated by Justice Carpio’s exhibit, ancient Chinese maps tended to ignore lands that lay beyond China’s coast: ancient Chinese cartographers did not show a whole lot of detail beyond the few names that pertained only to the largest islands in the Philippines like May-i. The absence of any mark indicating Huangyan Island, indeed of the name Huangyan Island itself, in any of these ancient maps is eloquent proof in itself. Such shortcomings in detail contrast with those of European maps of the Philippines and Southeast Asia, as geographic knowledge of the region spread in the 17th century. Bajo de Masinloc began appearing as an unnamed reef clearly associated with the island of Luzon, often almost like a smudge under the notation “Punto de Mandato” (Point of Mandate). What is important to note here is that from its initial appearance, Bajo de Masinloc is closely associated with the Philippine archipelago.
In the 18th century, maps of Southeast Asia and the Philippines indicated three distinct reefs west of Luzon, which soon acquired names in the famous Murillo Velarde map of the Philippine archipelago published in 1734. These reefs were all located on approaches to Manila, all triangular in shape but oriented differently, and from North to South, distinctly named in Tagalog as “Galit”, “Panacot”, and “Lumbay”. Subsequent maps reflected the same information, though with varied distances relative to the coast. They also acquired other names, such as Bajo de Bolinao, Bajo de Masinloc, and Bajo de Miravela, respectively. Bajo de Masinloc was also called Maroona or South Maroona in other maps. The multiple locations and different names may be understood as the result of inaccuracy of map-making at the time; indeed, until the invention of the ship-board chronometer, it was very difficult for ships to ascertain their position at sea through nothing more than the stars to guide them.
The imprecise position of the three reefs would soon be resolved, however, beginning with the grounding of a British sailing ship, the HMS Scarborough, which was chartered by the East India Company to transport tea between China and the British East Indies. On September 12, 1748, the ship ran aground on Bajo de Masinloc. The captain’s log describes the near-tragedy that befell the HMS Scarborough:
“At daylight, the rocks appeared frightful, though it pleased God the ship was on the sea side of the shoal, which is at least 2 leagues over and 8 long. On the east side of the shoal, the rocks are almost as high as those of Sicily, and a terrible sea breaks over them; on the west side, they are no bigger than a boat. They seemed to lie about North-Northwest and South-Southeast. I think the Scarborough was near their north end, seeing the water blue to the northward of them, and rocks were seen Southeast by South 3 leagues from the ship.”
The grounding of the HMS Scarborough was a very significant cartographic event, as maps published after the period were soon annotated with the mishap. The reef on which it grounded appeared to be in a different location from that of either Panacot, Galit, or Lumbay, and there was some uncertainty as to whether it was actually on Panacot or South Maroona reef, and some maps portrayed it as an entirely different reef designated as “Scarborough Shoal.” There was some initial debate as to which reef the HMS Scarborough struck, but eventually it was surmised that it could only have been Panacot or Bajo de Masinloc (or South Maroona / Marsingola, as some British maps called it).
It would take a few more decades before the debate would be settled, and the coordinates of Scarborough Shoal could be fixed. In May 1792, the Malaspina Expedition, a major scientific undertaking of the time, travelled through the South China Sea and was able to ascertain the exact position of Scarborough Shoal. The expedition also verified that the other two reefs indicated in previous maps did not actually exist, and all such markings could only have referred to Scarborough Shoal. A translated extract, dated from May 4-6, 1792, from the expedition’s journal states:
“… under this supposition it will be necessary to exclude from the map of Mr. Dalrymple the shoal with that name which is located at the distance of 57 leagues from land, and to establish as the only and true Scarborough another one located in the same latitude, but nearer to it. …The exact position of this reef is very important because many vessels, national and foreign, have perished in it.”
With the position of Bajo de Masinloc ascertained, and the absence of the other two reefs confirmed, the Spanish naval squadron based in Cavite, under the command of General Alava, eventually sent the frigate Santa Lucia led by Capitan Francisco Riquelme to carry out the first detailed Spanish survey of the shoal in the year 1800. The Santa Lucia was among the first steam-powered vessels that Spain introduced into the Philippine Islands to embark on its campaign against the Sultan of Sulu and to suppress the Moro slave-raiding pirate bands that roamed Philippine waters. (Figure 6)
The summary of Capitan Riquelme’s findings soon became a fixture in the Dorroteo del Archipielago Filipino, the Spanish pilot’s guide for mariners. An 1879 edition of the Dorroteo, translated, states:
“This low-lying reef, per Riquelme, extends more than 8 2/3 miles from North to South, and 9 1/2 miles from East to West from one end to the middle part, but from there narrowing until it ends in a tip. It is surrounded by horrible dangers that may appear without warning or other markings to serve notice of their proximity. Some rocks can be seen slightly above water only by close observation on a clear day, and only by having careful look-outs can one see the reef at a distance of 7 miles.”
A more detailed survey was conducted on March 13-18, 1866 by Master & Commander Edward Wilds on the steam-powered sloop HMS Swallow. The summary of his findings also appear in the Dorroteo:
“Recently in March 1866, it was explored by Lieutenant Wilds of the hydrographic ship Swallow, who describes Scarborough Shoal and says it is a dangerous reef, surrounded by large rocks, and at the South-East tip one can find a precarious anchorage only in a dead calm sea, in front of a lagoon…”
It then continues to describe the reef and its features in detail, so as to ensure the safety of navigation. The chart drawn by Lt. Wilds can be found in Justice Carpio’s exhibit as well.
Thus, by the 19th century, Galit and Lumbay no longer appeared in published maps, while Panacot or Bajo de Masinloc acquired the name by which it became well-known internationally: Scarborough Shoal. Its geographic position was already ascertained by coordinates of longitude and latitude, and its association with the landmass of Luzon fixed. Spain began exercising search and rescue jurisdiction over the shoal, assisting vessels in distress by sending ships from Manila.
That Spain began exercising jurisdiction at this time is very important. The end of the century saw the transfer of the Philippines to the United States through two treaties of cession. While the Treaty of Paris of 1898 described the Philippine Islands as being comprised of all the islands within an irregular polygon, Spain also had sovereignty and jurisdiction over islands and places outside of the lines of that polygon. These islands and places were clarified to have also been transferred to the United States under the terms of the Treaty of Washington of 1900.
Thus, the American colonial government continued periodically to exercise jurisdiction over the shoal, particularly through rescue and salvaging of ships in distress. One very well-documented event took place in 1913, when the S.S. Nippon, a Swedish steamer carrying a valuable cargo of copra, was wrecked on the shoal by a typhoon as the ship proceeded from Manila to Hong Kong. The shipwreck demonstrated the exercise of a whole gamut of maritime jurisdictions: the ship’s crew were rescued, the incident was officially investigated by Philippine maritime authorities, the ship subjected to salvage law in the Philippines, and an official scientific study was conducted on the effects of the sea on the ship’s cargo.
The event is recorded in the case of Erlanger & Galinger v. The Swedish East Asiatic Co., GR No. L-10051, a case which went all the way up to the Supreme Court of the Philippines in 1916. Several ships, both government and private, participated in the exercise; and the dispute involved the ship-owners, cargo owners, salvors, and insurance companies. The ship and cargo had to be abandoned on the shoal after the entire crew were rescued, and thus subject to the rules of salvage. A dispute arose between the owners and salvors as to the entitlement to compensation for salvage of the ship and remaining cargo.
In resolving the case, the Supreme Court discussed every important detail of the event, thus recording the evidence of exercise by the Philippines of various jurisdictions. This is one case where the actions of a domestic court can have significant international implications. The facts narrated, as well as the case itself, demonstrates the free and absolute exercise of governmental powers by the Philippines, as well as the application of Philippine law to activities taking place on the shoal.
The rescue of the crew is also reported in the records of the US Coast and Geodetic Survey, which dispatched 3 cutters, a scow, and the cableship Rizal to engage in salvage operations of the S.S. Nippon over the course of several months. The report was transmitted to the US Government as part of the report of the Governor-General of the Philippines.
Government administration is also demonstrated by the exercise of investigative powers over the incident, as recorded in the reports of the Bureau of Navigation of the colonial government. The Bureau of Science even conducted scientific research on the wreck, to observe the effects of the sea on the cargo of copra while the ship was still on the shoal. The results were published in the official scientific journal of the Government of the Philippine Islands.
Further evidence shows the consolidation of jurisdiction and sovereignty over the shoal. Scarborough Shoal is listed in the official inventory of the Philippine Islands, assembled by the American colonial government, which appears in the Census of the Philippine Islands published in 1918.
A few decades later, the very question of sovereignty over the shoal was tackled directly by the Commonwealth Government. On December 6, 1937, Mr. Wayne Coy of the Office of the US High Commissioner for the Philippines specifically asked Captain Thomas Maher, head of the US Coast and Geodetic Survey, whether Scarborough Shoal had been claimed by any country. Capt. Maher replied on December 10, 1937 that there was no information as to whether any nation, including the British, had laid claim of sovereignty over the shoal. His office had no power to decide on the issue of sovereignty, but noted that there was information available from previous Spanish and other records, particularly the survey of the Santa Lucia in 1800. Captain Maher also said,
“If this survey would confer title on Spain or be a recognition of sovereignty, or claim for same without protest, the reef would apparently be considered as part of Spanish territory the transfer of which would be governed by the treaty of November 7, 1900.”
Captain Maher further suggested a new survey of the shoal, and the installation of a navigational light.
Interest in formally claiming the shoal remained in succeeding months, with Jorge B. Vargas then writing Mr. Couy to inquire as to the status of Scarborough Shoal. Mr. Vargas further expressly stated that:
“The Commonwealth Government may desire to claim title thereto should there be no objection on the part of the United States Government to such action.”
Mr. Coy forwarded the letters to the Department of War, which in turn forwarded them to the Department of State, in the United States. The resulting correspondence between the different offices is very revealing. In a letter dated July 27, 1938, Secretary of State Cordell Hull informed Secretary of War Harry Woodring, that:
“This Department has no information in regard to the ownership of the shoal other than that which appears in the file attached to the letter under reference. While the shoal appears outside the limits of the Philippine archipelago as described in Article III of the American-Spanish Treaty of Paris of December 10, 1898, it would seem that, in the absence of a valid claim by any other government, the shoal should be regarded as included among the islands ceded to the United States by the American-Spanish treaty of November 7, 1900.”
“Accordingly, in the absence of evidence of a superior claim to Scarborough Shoal by any other government, the Department of State would interpose no objection to the proposal of the Commonwealth Government to study the possibility of the shoal as an aid to air and ocean navigation, provided that the Navy Department and the Department of Commerce, which are interested in air and ocean navigation in the Far East, are informed and have expressed no objection to the course of action contemplated by the Commonwealth Government.”
Subsequently, Acting Secretary of the Navy W.R. Furlong wrote Acting Secretary of War Louis Johnson:
“It is noted that the Commonwealth Government of the Philippine Islands desires to study the possibilities of this reef, particularly as to its value as an aid to air navigation and with the possibility of later claiming title thereto should there be no objection on the part of the United States Government to the such [sic] action.
“The papers accompanying your letter which are returned herewith, have been carefully considered and this Department has no objection to the course of action contemplated by the Commonwealth Government.”
Then, on October 19, 1938, Secretary of Commerce Paul Frizzell wrote the Secretary of War:
“It is noted that the Commonwealth Government of the Philippines desires to study the value of Scarborough Shoal as an aid to air navigation with the possibility of later claiming title thereto. It is further noted that the Secretary of State will interpose no objection to the proposal of the Commonwealth Government, provided the Navy and Commerce departments express no objection.
“Please be advised that the Civil Aeronautics Authority sees no objection to the proposed action.”
The foregoing series of correspondence confirms the jurisdiction of the Philippines under the Commonwealth Government, and lays the ground for the actual exercise of sovereignty in later year. It is clear the United States considered itself to have acquired the shoal from Spain under the Treaty of Washington of 1900, and thus had no objection to transferring the same to the Commonwealth. All throughout the Commonwealth Period, the Philippine Government had always considered Scarborough Shoal under its exclusive sphere of influence, marking it prominently in maps of the Commonwealth and continuously exercising particularly maritime jurisdiction over the shoal. This is seen in the Coast Pilot Guides issued by the US Coast and Geodetic Survey, and in search and rescue operations on the shoal.
After the birth of the Republic of the Philippines in 1946, Bajo de Masinloc continued to be subject to its power, which actually grew in intensity. In 1961, the Philippine Coast and Geodetic Survey sent a hydrographic and topographic survey team to the shoal, led by Lieutenant Commander Antonio P. Ventura. They spent four days mapping and sounding the shoal to produce a detailed chart of Bajo de Masinloc and its environs. A hut with a tide and current station was also installed on the biggest rock.
Two years after, in 1963, the local press reported on the rescue of the crew of the French vessel Arsineo, which was shipwrecked on the shoal. A commercial vessel and a US Navy vessel brought the crew to Manila. This was only one of many shipwrecks on the shoal throughout its entire history. The Philippine Coast and Geodetic Survey was responsible for marking those shipwrecks on the nautical charts, and earlier versions of Chart 4200 (containing the complete map of the archipelago) clearly indicated both shipwrecks and navigational lights on the shoal.
The year 1963 also saw a major example of the exercise of absolute sovereignty, when the Philippine Navy discovered a smuggler’s base on the shoal. The smuggler’s base was used as a pick-up/drop-off point for blue seal cigarettes and other contraband. An actual photograph of the facility was published in the newspapers. The Philippine Navy sent ships to bombard the wharf twice in the same month. No other government action can express sovereignty so completely and convincingly than this enforced destruction of these illegal facilities.
Perhaps to discourage the re-establishment of the smuggler’s base, and to maintain a naval presence around the shoal, the Philippines allowed the establishment of a US Naval Operating Area covering a 20 mile radius around the shoal. This turned Scarborough Shoal into a target and bombing range for the Philippine and US Navy. The whole world was notified of this fact through the Coast Pilot Guides regularly issued by the Philippine Coast and Geodetic Survey.
Absolute sovereignty continued to be exercised well into the 1970s and 1980s, as shown by “Notice to Mariners” issued by the Philippine Coast and Geodetic Survey and the Philippine Navy, warning all ships of live fire exercises, including a missile firing exercise by the US Navy operating out of Subic Bay, in the early 1980s.
All these exercises of sovereignty were uninterrupted and conducted peacefully and openly, without protest from any country including China, all throughout this time, until as late as 1995, and even in the summer of 1997 when the Coast and Geodetic Survey Division of NAMRIA conducted a GPS survey of the shoal as part of its effort to identify points to be used to create the archipelagic baseline system under UNCLOS.
It therefore becomes clear that contrary to China’s insistence, it was China, not the Philippines, which only began asserting a claim to Bajo de Masinloc/Scarborough Shoal in the 1990s when it issued a permit to amateur radio operators to establish and operate an amateur radio station thereon. The incident was immediately protested by the Philippines at the time, and the radio station removed. This is the event which initiates the Philippines-China dispute over Bajo de Masinloc, flaring up again in 2002 and then culminating in China’s blockade of the shoal in 2012. It was only in the 1990s when China actually and clearly claimed the shoal, and it was only in 2012 that it actually asserted and exercised (albeit illegally) any form of jurisdiction thereon.
Summary and Observations
These lesser-known historical facts trump the published fiction that China has been propagating lately in order to justify its current blockade of Bajo de Masinloc/Scarborough Shoal. Justice Carpio’s map exhibit is indeed an important and timely critique of the very foundation of China’s claims, and is complemented by the historical record that also clearly supports the Philippines’ sovereignty and jurisdiction over the shoal.
In summary, the substance of this presentation is fairly simple. Scarborough Shoal is an integral part of the Philippine archipelago, acquired and incorporated through a steady process of exercise of acts à titré de souverain begun in the Spanish colonial period, that continued and amplified throughout the American colonial period, and consolidated into full sovereignty by the time the country was in transition from Commonwealth to independent Republic. By the 1960s, absolute sovereignty was already being exercised and demonstrated very clearly, palpably, openly, and publicly to the exclusion of every other country in the region, including China.
Permit me the indulgence of some parting observations. First, the 1898 Treaty of Paris and the 1900 Treaty of Washington are quite material and relevant not only for the Philippines, but also for the United States, to which the Republic of the Philippines legally succeeded in sovereignty over all rights and jurisdictions over the territories of the archipelago. From the American point of view in the 1930s, it appears that Spain had a “title or claim of title” over Bajo de Masinloc/Scarborough Shoal which was acquired by the United States, which in turn saw fit to transfer to the Commonwealth of the Philippines. The correspondence between the Commonwealth officials and the US Departments of State, War, and Commerce clearly premise the Commonwealth’s acquisition of the shoal, and US consent thereto, upon its inclusion within the terms of the 1900 Treaty of Washington. Clearly therefore, the Philippines had been exercising exclusive jurisdiction over the shoal since at least the 19th century under Spain, and expanded such exercises in the 20th century under the United States and as an independent republic. It did not only begin exercising jurisdiction in 1946: it was actually continuing the exercise of pre-existing jurisdictions that matured into full sovereignty. In our Constitutions, Scarborough Shoal is included as among the territories “over which the Government of the Philippine Islands exercises jurisdiction” (1935 Constitution), then “by historic right or legal title” (1973 Constitution), and then “all other territories over which the Philippines has sovereignty or jurisdiction” (1987 Constitution).
Second, if Bajo de Masinloc/Scarborough Shoal was indeed included as part of the archipelago transferred by the United States to the independent Republic of the Philippines, then it is arguably Philippine island territory subject to American defense commitments under the Philippines-US Mutual Defense Treaty. This is important in light of the most prominent means by which China now asserts its claims to the South China Sea: through the use of its lightly-armed but large coast guard vessels against foreign ships, and more recently trough reclamation activities.
Under present circumstances, the only thing that prevents legal commitments under the MDT from being invoked are that there has not yet been “an armed attack…on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific” per the terms of the MDT. If China were to aggressively use its vessels in the same way as it did this year with Vietnam, and ram or sink Philippine vessels, it could qualify as an armed attack that would engage US defense commitments under Articles IV and V of the MDT.
If China were to attempt to install a station on, or undertake reclamation of, Bajo de Masinloc/Scarborough Shoal to transform it into an artificial island, it would amount to nothing less than a permanent taking of a piece of Philippine territory, and therefore be considered a direct threat to the territorial integrity of the country. The Philippines would then be entirely justified in sending public ships to impede or prevent such taking. If China then responds in the same way as it did with Vietnam with respect to the oil rig HS 981, by deploying a protective fleet of ships to block and ram such Philippine vessels, then it will thereby be carrying out a threat of an external armed attack while actually taking the shoal. This then comes within the terms of Article III of the MDT, and the defense commitments under the MDT may be invoked.
China’s continuing blockade of Bajo de Masinloc/Scarborough Shoal is thus skirting a very fine and dangerous line; it has pushed the envelope to the point that just one mistake will qualify its actions as an armed attack under the MDT. The question that must be asked and seriously considered now is whether and how the Philippine Government is preparing for these scenarios and contingencies.
My third point is that the dispute over Bajo de Masinloc/Scarborough Shoal does not only concern the few small rocks on the reef. Per the arbitration case filed by the Philippines, each rock is admitted to be capable of generating a full 12 nautical mile territorial sea. There are reportedly six rocks above water at high tide, 9 miles apart, on the reef. This creates a territorial sea area equivalent to twice the total land area of the whole of Metro Manila. Given China’s refusal to participate in the arbitration, it is clear that the dispute, and probably the blockade, will continue even beyond the case’s conclusion. The Philippines must therefore be prepared to pursue its interest in the shoal not only through litigation, but through every other available means possible. This bears not only on the arbitration itself, but also upon the Philippines’ legal position as a whole and upon the practical realities at sea. For as long as the blockade is maintained, there is a very high potential for an unwanted incident that could lead to a serious escalation of the dispute. Surely, neither party relishes the idea of an armed conflict, no matter how small or short.
The Philippines must necessarily proceed with the arbitration case since it has committed itself fully to the process. But at the same time, it must keep its options open for addressing the other continuing manifestations of the West Philippine Sea dispute, other than those already encompassed in its case. Certain aspects will be subject to legal mechanisms, but other may not be. And the Philippines would be well-advised to prepare to pursue its interests on all fronts, and by whatever mechanisms may be available, in the near future and beyond.
This presentation is a small contribution on one of those fronts: the contest for knowledge, and the search for truth, in the public sphere. I hope that every Filipino will join Justice Carpio and all of us here in this difficult but worthy task.
Thank you very much.
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