(First of two parts)
THE Philippines is at a loss over China’s declaration its ships will stay permanently in Bajo de Masinloc, a declaration some experts say could lead to the Philippines losing 38 percent of its territorial waters.
Bajo de Masinloc, a triangular-shaped coral reef formation that has several rocks encircling a lagoon, is located 124 nautical miles west of Masinloc town in Zambales in the northwestern part of the Philippines.
“The shoal is under virtual occupation by China,” said former foreign undersecretary and former Philippine Permanent Representative to the United Nations Lauro Baja.
Foreign Secretary Albert del Rosario confirmed this, saying, “In a subministerial consultation, Chinese Vice Foreign Minister Fu Ying had said to our people that China’s presence was permanent and they had no intention of withdrawing their ships from the vicinity of Bajo de Masinloc.”
The National Mapping and Resource Information Authority (NAMRIA) says Bajo de Masinloc has an area of about 120 square kilometers. It is also referred to as Panatag (calm in Pilipino) by fishermen who seek refuge in the area during stormy weather.
Its international name is Scarborough shoal after the tea-carrying British boat Scarborough which sank in the vicinity in 1784. China also claims ownership of the shoal which is 467 nautical miles away from its mainland, and refers to it as Huangyan Island.
Republic Act 9522, which defines the country’s archipelagic baseline, includes Bajo de Masinloc as part of Philippine territory. The law classifies it as a regime of islands under Art. 121 of the Law of the Sea Convention (LOSC), which means it generates its own territorial sea, exclusive economic zone (EEZ) and continental shelf.
Under UNCLOS, “an island is a naturally formed area of land, surrounded by water, which is above water at high tide.”
An island generates its own maritime regimes, which are 12 nautical miles (nm) for territorial sea, 24 nm for contiguous zone, 200 nm for EEZ and 200 nm continental shelf.
Under this definition, the Chinese claim over Baja de Masinloc means the Philippines risks losing not only the 120-square-kilometer strategically vital reef formation but also some 494,000 square kilometers EEZ, representing 38 per cent of the country’s EEZ.
One of the Philippines’ options to protest the Chinese encroachment is going to the United Nations International Tribunal on the Law of the Sea (ITLOS), the arbitration arm of UNCLOS, of which the Philippines and China are signatories.
Legal experts say the Philippines can ask the ITLOS, which does not deal with territorial disputes, to declare Bajo de Masinloc as a rock rather than an island.
UNCLOS said, “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”
Retired Philippine Navy Commodore Rex Robles, who has been to the area a few times for gunnery practice, declares that “Panatag shoal is a rock.”
“It cannot support human life. It is not an island,” he concludes.
Lawyer Romel Bagares, executive director of Center for International Law (Philippines), said RA 9522 “does not actually specify whether Bajo de Masinloc consists just of uninhabitable rocks or is capable of economic life pursuant to Art 121 of the UNCLOS. This could be one way of arguing ITLOS has jurisdiction, especially as to the interpretation of provisions. It’s a pragmatic approach, no doubt.”
What is obvious, Bagares said, is that RA 9522 assumes that the shoal is part of Philippine territory in the fullest sense of the term.
Del Rosario said, “To the extent that their three ships are within our exclusive economic zone, this is in gross violation of the DOC and UNCLOS.”
DOC is the Declaration of Conduct of Parties in the South China Sea signed in 2002 by members of the Association of Southeast Asian Nations, four of them part claimants to islands in the South China Sea, and China. UNCLOS is the United Nations Convention on the Law of the Sea.
Baja said, “When our ships withdrew from Bajo de Masinloc in June and now (we) could not access the area, the shoal became under virtual occupation by China. “
Baja, who drafted the DOC with Malaysia’s Abdul Kadir, also said Chinese occupation of the disputed shoal has changed the status quo, contrary to the DOC.
The DOC states: “The Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.”
Baja said China is exercising what the International Court of Justice (ICJ) calls “effectivités.” “This is the basis of the Court’s decision on the Ligatan Sipadan case where the court awarded the area to Malaysia over Indonesia. Also the same principle in the case between Chile and Peru and between Nicaragua and Guatemala,” he said.
In 2002, the ICJ awarded sovereignty over Pulau Ligitan and Pulau Sipadan, two very small islands located in the Celebes Sea, off the northeast coast of the island of Borneo, to Malaysia against Indonesia giving weight to the former’s actual and continued exercise of authority over the islands.
Baja said, “We must act and interact before we lose the territory by default and/or estoppel.”
Seven months after China’s occupation of Bajo de Masinloc, the Philippines is still “reviewing” its options.
Asked about the Philippines’ response to China’s declaration it has no intentions of pulling out their ships from Panatag shoal, Del Rosario said, “We are reviewing all our options in accordance with our three track approach encompassing the political, legal and diplomatic means.”
President Benigno Aquino III has refused to discuss publicly the Philippine efforts on Bajo de Masinloc because he said doing so would be “giving the other side a preview of everything that we will do.”
He said, though, in October at a forum by the Foreign Correspondents Association of the Philippines that the matter “is still being studied by our consultants.”
Aquino added, “There are several law firms that we are consulting, conversant and very well thought of and experts in international law, to precisely chart the course of how we will utilize the legal procedures in international law to advance our claims.”
Experts point to two options available to the Philippines: the military option—which is not really an option considering the inferior state of the Philippine Navy compared with China’s naval might—and the legal option.
(To be continued)