philippine claim over spratly, scarborough & sabah (wiki)

8/9/2019 Philippine Claim Over Spratly, Scarborough & Sabah (Wiki)

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Philippine Claim over Spratly Islands

The Sultanate State of Sulu is the legal owner of the Spratlys Archipelago but since

the Sultan Kiram turnover his territorial and proprietary rights of the State to theRepublic of the Philippines including the North Borneo, Palawan and the Spratlys in

1960s, then legally it belongs to the Philippines.

Archipelagic Bases

Under the UN International Laws of Sea, despite the opposition of maritime powers,

the Philippines and four other states (Indonesia, Papua New Guinea, Fiji and

Bahamas) got the approval in the UN Convention on the Law of the Sea held in

Jamaica last December 10, 1982. They were qualified as archipelagic states.

The Spratlys is within Philippines proximity and connected in the Philippinesarchipelago with just few kilometers from the province of Palawan of the

Philippines, this boost the claim of the Philippines. Other claimants are not

archipelagic states and they are far from beyond the limit of the UNCLOS of 200

nautical Miles Exclusive Economic Zone. The Philippines as an archipelagic country

& within proximity, it counts merit in administering the Spratlys.

UN Convention International Law of Sea (UNCLOS) bases

China argued that there is no word proximity mentioned in the UNCLOS so they

insisted that they could claim the Spratlys. Though there is no proximitymentioned, the UNCLOS clearly explain the 200 Nautical Miles Exclusive Economic

Zone (EEZ) which is more clear explanation than proximity. Proximity is just to say

near but the measurement of 200 Nautical Miles from the base line of the

Philippines is not just synonym to proximity but a clear measurement of distance.

Under the UNCLOS, it guarantees 200 Nautical Miles Exclusive economic Zone which

most part of the Spratlys is just within 200 Nautical Miles Exclusive Economic Zone

of the Philippines. This is the strongest bases of the Philippines to say We owned

the West Philippines Sea. Even China is a signatory in these and they even agree

with this together with the United Nations.The History as bases of claim

Back to Majapahit and Sri Vijaya Empire in year 7000 or 7th century (The ancient

kingdom in Indonesia and Malay Archipelago) the territory is extended from the

North Borneo, Palawan, and the Spratlys of the Philippines' territory.


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The Sultanate State of Sulu was established during that regime which area includes

Part of Mindanao (Cotabato, Lanao, Zamboanga Peninsula), Basilan, Sulu Sea, and

Sulu.

During the 14 century or year 1400 the King /Sultan of Brunei give as gift to his

cousin Sultan of Sultanate of Sulu the North Borneo, Palawan and the Spratlys forhelping him to win a battle. The China recognized the Sultanate State of Sulu that

includes the North Borneo, Palawan and the Spratlys archipelago.

When the Spain invaded the Philippines in year 1621, the sultanate state of Sulu

remains un-conquered but portion of the territory was controlled by Spain

including the whole Island of Mindanao, and Palawan.

When the Britain gives independence to Malaysia, North Borneo is under a lease

agreement which is until now is recognized by Malaysia was illegally included

reason why the Sultan of Sulu calling the Malaysian Governmet to stop controllinghis land North Borneo (Sabah) which is also link to Spratlys.

The Sultan of Sulu turnover his territorial and proprietary rights of the State to the

Republic of the Philippines including the Palawan and the Spratlys in 1960s.

The History, the UNCLOS International law of Sea, the archipelagic states

theory says The Spratlys is belonged to the Philippines.

The Spratlys archipelago

At the moment they are administered by the Philippines, but some are claimed by

Brunei, Taiwan, China, Vietnam, Malaysia and Indonesia.

They comprise less than five square kilometers of land area, spread over more than

400,000 square kilometers of sea. The Spratlys, as they are called, are part of the

three archipelagos of the South China Sea, comprising more than 30,000 islands and

reefs and which so complicates geography, governance and economics in that region

of Southeast Asia. Such small and remote islands have little economic value in

themselves, but are important in establishing international boundaries. There are

no native islanders but there are rich fishing grounds and initial surveys indicate the

islands may contain significant oil and gas.About 45 islands are occupied by relatively small numbers of military forces from

the People's Republic of China, the Republic of China (Taiwan), Malaysia, the

Philippines, and Vietnam. Brunei has claimed an *EEZ* in the southeastern part of

the Spratlys.


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*Exclusive Economic Zone, under the law of the sea, an EEZ is a sea zone over which

a state has special rights over the exploration and use of marine resources.

The Disputed Spratlys is within the Philippine Waters. The Philippines is the legal

owner of the islands in the Spratlys as it is within 200 Nautical Mile Exclusive

Economic Zone said United Nations Convention on the Law of the Sea (UNCLOS)

THE PHILIPPINES AND THE ARCHIPELAGIC DOCTRINE

Archipelago is defined as a sea or part of a sea studded with islands, often

synonymous with island groups, or as a large group of islands in an extensive body

of water, such as sea. (De Leon, 1991)

In various conferences of the United Nations on the Law of the Sea, the Philippines

and other archipelago states proposed that an archipelagic state composed of

groups of islands forming a state is a single unit, with the islands and the waters

within the baselines as internal waters. By this concept (archipelagic doctrine), anarchipelago shall be regarded as a single unit, so that the waters around, between,

and connecting the islands of the archipelago, irrespective of their breadth and

dimensions, form part of the internal waters of the state, subject to its exclusive

sovereignty.

Despite the opposition of maritime powers, the Philippines and four other states

(Indonesia, Papua New Guinea, Fiji and Bahamas) got the approval in the UN

Convention on the Law of the Sea held in Jamaica last December 10, 1982. They

were qualified as archipelagic states. The archipelagic doctrine is now incorporated

in Chapter IV of the said convention. It legalizes the unity of land, water and people

into a single entity

The Philippines bolstered the archipelagic principle in defining its territory when it

included in Article 1 of the 1987 Constitution the following:

"The national territory comprises the Philippine Archipelago, with all the islands

and waters embraced therein xxx"; and

"The waters around, between and connecting the islands of the archipelago,

regardless of their dimensions, form part of the internal waters of the Philippines."On the strength of these assertions, the Philippines Archipelago is considered as one

integrated unit instead of being divided into more than seven thousand islands. The

outermost of our archipelago are connected with straight baselines and all waters

inside the baselines are considered as internal waters. This makes the large bodies

of waters connecting the islands of the archipelago like Mindanao Sea, Sulo Sea and


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the Sibuyan Sea part of the Philippines as its internal waters, similar to the rivers

and lakes found within the islands themselves.

The archipelagic principle however is subject to the following limitations:

a) respect for the right of the ship and other states to pass through the territorial as

well as archipelagic waters

b) respect to right of innocent passage

c) respect for passage through archipelagic sea lanes subject to the promulgation by

local authorities of pertinent rules and regulations.

The Philippines & the Spratly Islands History- Srivijaya Empire in 1400 (The

Sultanate State of Sulu)

Back to Majapahit and Sri Vijaya Empire in year 7000 or 7th century (The ancient

kingdom in Indonesia and Malay Archipelago) the territory is extended from theNorth Borneo, Palawan, and the Spratlys of the Philippines' territory.

The Sultanate State of Sulu was established during that regime which area includes

Part of Mindanao (Cotabato, Lanao, Zamboanga Peninsula), Basilan, Sulu Sea, and

Sulu.

During the 14 century or year 1400 the King /Sultan of Brunei give as gift to his

cousin Sultan of Sultanate of Sulu the North Borneo, Palawan and the Spratlys for

helping him to win a battle. The China recognized the Sultanate State of Sulu that

includes the North Borneo, Palawan and the Spratlys archipelago.

When the Spain invaded the Philippines in year 1621, the sultanate state of Sulu

remains un-conquered but portion of the territory was controlled by Spain

including the whole Island of Mindanao, and Palawan.

When the Britain gives independence to Malaysia, North Borneo is under a lease

agreement which is until now is recognized by Malaysia was illegally included

reason why the Sultan of Sulu calling the Malaysian Government to stop controlling

his land North Borneo (Sabah) which is also link to Spratlys.

The Sultan of Sulu turnover his territorial and proprietary rights of the State to theRepublic of the Philippines including the Palawan and the Spratlys in 1960s.

Spratlys Islands or Kalayaan Island Group is just within the Philippines' proximity

and 200 Nautical Miles Exclusive Economic Zone - under the International Laws Sea

- UNCLOS. The Philippines as the closest and archipelagic country of the Spratly

island with another Five Asian countries claim the Spratly Islands including - China,


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Taiwan, Vietnam, Malaysia and Brunei. Disputes among these six parties have led to

various minor military skirmishes, the detention of fisherfolk and diplomatic rows

in the past three decades.

Control of the Spratlys is important since the region is supposed to contain large

deposits of oil, gas, hydrocarbon and mineral resources. The islands are alsostrategically located in the sea lanes for commerce and transport in the South China

Sea which is very close to the Palawan Province of the Philippines with a distant less

than 200 nautical miles; a bases that Philippines has a legal ground that those

islands are part of the Philippines.

The Spratlys consist of about 26 islands and islets and 7 groups of rocks in the South

China Sea found approximately between the latitude of 4 degrees to 11 degrees

30'N. and longitude 109 degrees 30'E. They have a maritime area of 160,000 square

kilometers and an insular area of about 170 hectares.

The Spratlys are popular among fishermen. However, they are considered

dangerous for commercial navigation. Maps from the early part of the last century

have advised seamen to avoid passing through them.

Japan explored the Spratlys for military reasons during World War II. The British

Admiralty and U.S. Navy have also ordered some top secret missions there. But the

U.S. Navy never released the new charts of the Spratlys to civilian authorities. Writer

Francois-Xavier Bonnet wonders about the role of the Spratlys during the Vietnam

War.

In 1933 a Philippine senator protested the French annexation of the Spratlys. A

parliamentary committee studied the issue but the U.S. government, which

controlled the Philippines at that time, did not take an interest in the matter.

In 1946 Vice President Elpidio Quirino claimed the Spratlys on behalf of the

Philippine government. A year later, the Philippine Secretary of Foreign Affairs

declared that the "New Southern Islands" previously occupied by Japan during

World War II were part of Philippine territory.

In 1955 the Philippine military reported that the Spratly island group was of "vital

proximity" to the country. The following year, Filipino navigator and businessmanTomas Cloma issued a "proclamation to the whole world" claiming ownership and

occupation of the Spratlys. Cloma sent six letters to the government about the need

to settle the question of ownership of the islands.


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The vice president of the Philippines replied in 1957, assuring Cloma that the

government "does not regard with indifference the economic exploitation and

settlement of these uninhabited and unoccupied islands by Philippine nationals."

According to Filipino law professor Haydee Yorac, the Cloma Proclamation was the

first assertion of title to the Spratlys after Japan renounced its ownership of theislands in 1951 and 1952.

In 1978 President Ferdinand Marcos issued a proclamation declaring ownership of

most of the islands in the Spratlys. The area was renamed the Kalayaan (Freedom)

Island Group. The proclamation laid the following basis for the Philippine claim: "By

virtue of their proximity and as part of the continental margin of the Philippine

archipelago"; that "they do not legally belong to any state or nation, but by reason of

history; indispensable need, and effective occupation and control established in

accordance with international law"; and while other states have laid claims to some

of these areas, their claims have lapsed by abandonment and cannot prevail overthat of the Philippines on legal, historical, and equitable ground."

In 1995 President Fidel Ramos articulated the Philippine position regarding the

Spratlys issue. He said "I would like to clarify that the Philippines does not only

claim eight islands in the south China Sea but owns all islands and waters in the

Spratlys as defined in the presidential decree issued by former President Marcos."

Militarization of the Spratlys started in the 1970s. The Philippines sent a military

contingent to occupy some of the islands in 1971. After four years, the Philippines

had already established a military presence in six islands. Today, the Philippinesoccupies eight islands in the area.


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Scarborough Shoal

The Philippines states that its assertion of sovereignty over the shoal is based on the

juridical criteria established by public international law on the lawful methods for

the acquisition of sovereignty. Among the criteria (effective occupation, cession,

prescription, conquest, and accretion), the Philippine Department of Foreign Affairs

(DFA) has asserted that the country exercised both effective occupation and

effective jurisdiction over the shoal, which it terms Bajo de Masinloc, since its

independence. Thus, it claims to have erected flags in some islands and a lighthouse

which it reported to the International Maritime Organization. It also asserts that the

Philippine and US Naval Forces have used it as impact range and that its Department

of Environment and Natural Resources has conducted scientific, topographic and

marine studies in the shoal, while Filipino fishermen regularly use it as fishing

ground and have always considered it their own.[20]

The DFA also claims that the name Bajo de Masinloc (translated as "under

Masinloc") itself identifies the shoal as a particular political subdivision of the

Philippine Province of Zambales, known as Masinloc.[20] As basis, the Philippines

cites the Island of Palmas Case, where the sovereignty of the island was adjudged by

the international court in favor of the Netherlands because of its effective

jurisdiction and control over the island despite the historic claim of Spain. Thus, the

Philippines argues that the historic claim of China over the Scarborough Shoal stillneeds to be substantiated by a historic title, since a claim by itself is not among the

internationally recognized legal basis for acquiring sovereignty over territory.

It also asserts that there is no indication that the international community has

acquiesced to China's historical claim, and that the activity of fishing of private

Chinese individuals, claimed to be a traditional exercise among these waters, does

not constitute a sovereign act of the Chinese state.[21]

The Philippine government argues that since the legal basis of its claim is based on

the international law on acquisition of sovereignty, the Exclusive Economic Zone

claim on the waters around Scarborough is different from the sovereignty exercised

by the Philippines in the shoal.[20][22]


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The Philippine government has proposed taking the dispute to the International

Tribunal for the Law of the Sea (ITLOS) as provided in Part XV of the United Nations

Convention on the Law of the Sea, but the Chinese government has rejected this,

insisting on bilateral discussions.[23][24][25]

The Philippines also claims that as early as the Spanish colonization of the

Philippines, Filipino fishermen were already using the area as a traditional fishing

ground and shelter during bad weather.[26]

Several official Philippine maps published by Spain and United States in 18th and

20th centuries show Scarborough Shoal as Philippine territory. The 18th-century

map "Carta hydrographica y chorographica de las Islas Filipinas" (1734) shows the

Scarborough Shoal then was named as Panacot Shoal. The map also shows the shapeof the shoal as consistent with the current maps available as today. In 1792, another

map drawn by the Malaspina expedition and published in 1808 in Madrid, Spain

also showed Bajo de Masinloc as part of Philippine territory. The map showed the

route of the Malaspina expedition to and around the shoal. It was reproduced in the

Atlas of the 1939 Philippine Census, which was published in Manila a year later and

predates the controversial 1947 Chinese South China Sea Claim Map that shows no

Chinese name on it.[27] Another topographic map drawn in 1820 shows the shoal,

named there as "Bajo Scarburo," as a constituent part of Sambalez (Zambales

province).[28] During the 1900s, Mapa General, Islas Filipinas, Observatorio deManila, and US Coast and Geodetic Survey Map include the Scarborough Shoal

named as "Baju De Masinloc."[29] A map published in 1978 by the Philippine

National Mapping and Resource Information Authority, however, did not indicate

Scarborough Shoal as part of the Philippines.[30]

In 1957, the Philippine government conducted an oceanographic survey of the area

and together with the US Navy force based in then U.S. Naval Base Subic Bay in

Zambales, used the area as an impact range for defense purposes. An 8.3 meter highflag pole flying a Philippine flag was raised in 1965. An iron tower that was to serve

as a small lighthouse was also built and operated the same year.[31][32] In 1992,

the Philippine Navy rehabilitated the lighthouse and reported it to the International

Maritime Organization for publication in the List of Lights. As of 2009, the military-

maintained lighthouse is non-operational.[33]


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Territorial map claimed by the Philippines, showing internal waters, territorial sea,

international treaty limits and exclusive economic zone.

The 1900 Treaty of Washington provided that any and all islands belonging to the

Philippine archipelago, lying outside the lines described in Article III of the Treaty of

Paris, were also ceded to the United States. This included Scarborough Shoal, which

is outside the Treaty of Paris treaty lines. In effect, the Treaty of Washington

amended the Treaty of Paris, so that the islands ceded by Spain to the U.S. included

islands within and outside the Treaty of Paris treaty lines, so long as Spain had title

or claim of title to the islands.

The DFA asserts that the basis of Philippine sovereignty and jurisdiction over the

rock features of Bajo de Masinloc are not premised on the cession by Spain of thePhilippine archipelago to the United States under the Treaty of Paris, and argues

that the matter that the rock features of Bajo de Masinloc are not included or within

the limits of the Treaty of Paris as alleged by China is therefore immaterial and of no

consequence.[20][22]

President Ferdinand Marcos, by virtue of the Presidential Decree No. 1596 issued on

June 11, 1978 asserted that islands designated as the Kalayaan Island Group and

comprising most of the Spratly Islands are subject to the sovereignty of thePhilippines,[34] and by virtue of the Presidential Decree No. 1599 issued on June 11,

1978 claimed an Exclusive Economic Zone (EEZ) up to 200 nautical miles (370 km)

from the baselines from which their territorial sea is measured.[35]

The Philippines' bilateral dispute with China over the shoal began on April 30, 1997

when Filipino naval ships prevented Chinese boats from approaching the shoal.[1]

On June 5 of that year, Domingo Siazon, who was then the Philippine Secretary of

Foreign Affairs, testified in front of the Committee on Foreign Relations of theUnited States Senate that the Shoal was "a new issue on overlapping claims between

the Philippines and China".[36]


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In 2009, President Gloria Macapagal-Arroyo enacted the Philippine Baselines Law of

2009 (RA 9522). The new law classified the Kalayaan Island Group and the

Scarborough Shoal as a regime of islands under the Republic of the Philippines.

BACKGROUND ON THE BAJO DE MASINLOC (PANATAG) INCIDENT

Bajo de Masinloc is an integral part of the Philippine territory. 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 Philippine Navy Surveillance aircraft monitored eight Chinese fishing vessels

anchored inside the Bajo de Masinloc (Panatag Shoal) on Sunday, April 8, 2012, in

the conduct of its maritime patrols and its enforcement of the Philippine Fisheries

Code and marine environment laws. On April 10, 2012, the BRP Gregorio del Pilar, inaccordance with the established Rules of Engagement, dispatched an inspection

team that reported that large amounts of illegally collected corals, giant clams, and

live sharks were found in the compartments of these fishing vessels.

The actions of the Chinese fishing vessels are a serious violation of the Philippines

sovereignty and maritime jurisdiction. The poaching of endangered marine

resources is in violation of the Fisheries Code and the Convention on International

Trade in Endangered Species of Wild Flora and Fauna (CITES).

BASIS OF PHILIPPINE SOVEREIGNTY OVER BAJO DE MASINLOC AND THEWATERS WITHIN ITS VICINITY

Bajo de Masinloc (Scarborough Shoal) is notan island. Bajo de Masinloc is also not

partof theSpratlys.

Bajo de Masinloc (Scarborough Shoal) is a ring-shaped coral reef, which has several

rocksencircling a lagoon. About fiveof these rocks are above waterduring high

tide. Of these five rocks, some are about 3 metershigh above water. The rest of the

rocks and reefs are below waterduring high tide.

Bajo de Masinlocs (Scarborough Shoal) chain of reefs and rocks is about124NMfrom the nearest coast of Luzon and approximately 472 NM from the nearest

coast of China. Bajo de Masinloc is located approximately along latitude

1508Nand longitude 11745E. The rocks of Bajo de Masinloc are situated north

of the Spratlys.


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Obviously, therefore, the rocksof Bajo de Masinloc is also withinthe 200-NM

EEZand 200-NM continental shelf(CS) of the Philippines.

A distinctionhas to be made between the rock featuresof Bajo de Masinloc and

the larger body of waterand continental shelfwhere the said geological features

are situated. The rightsor nature of rightsof the Philippines over the rock featuresof Bajo de Masinloc are differentfrom that which it exercises over the larger body

of water and continental shelf.

The Philippines exercises full sovereigntyand jurisdictionover the rocks of Bajo

de Masinloc, andsovereign rightsover the watersand continental shelfwhere the

said rock features of Bajo de Masinloc are situated.

The basisof Philippine sovereignty and jurisdiction over the rock featuresof Bajo

de Masinloc isdistinctfrom that of its sovereign rights over the larger body of

waterand continental shelf.A. The rock features of Bajo de Masinloc: Basis of Philippine sovereignty under

Public International Law

The rock features of Bajo de Masinloc are Philippine territories.

The basis of Philippine sovereignty and jurisdiction over the rock features of Bajo de

Masinloc is not premised on the cession by Spain of the Philippine archipelago to the

United States under the Treaty of Paris. The matter that the rock features of Bajo de

Masinloc are not included or within the limits of the Treaty of Paris as alleged by

China is therefore immaterial and of no consequence.

Philippine sovereignty and jurisdiction over the rocks of Bajo de Masinloc is

likewise not premised on proximity or the fact that the rocks are within its 200-NM

EEZ or CS under the UN Convention on the Law of the Sea (UNCLOS). Although the

Philippines necessarily exercise sovereign rights over its EEZ and CS, nonetheless,

the reason why the rock features of Bajo de Masinloc are Philippine territories is

anchored on other principles of public international law.

As decided in a number of cases by international courts or tribunals, most notably

the Palmas Island Case, a modality for acquiring territorial ownership over a pieceof real estate is effective exercise of jurisdiction. Indeed, in that particular

case, sovereigntyover the Palmas Island was adjudgedin favor of the Netherlands

on the basis of effective exercise of jurisdiction, although the said island may have

been historically discoveredby Spain and historically cededto the U.S. in the

Treaty of Paris.


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In the case of Bajo de Masinloc, the Philippines has exercised both effective

occupationandeffective jurisdictionover Bajo de Masinloc since its

independence.

The name Bajo de Masinloc (translated as under Masinloc) itself identifies the

shoal as a particular political subdivision of the Philippine province of Zambales,known as Masinloc.

One of the earliest known and most accurate maps of the area, named Carta

Hydrographical y Chorographica De Las Yslas Filipinas by Fr. Pedro Murillo Velarde,

SJ, and published in 1734, included Bajo de Masinloc as part of Zambales.

The name Bajo de Masinloc was a name given to the shoal by the Spanish colonizers.

In 1792, another map drawn by the Alejandro Malaspina expedition and published

in 1808 in Madrid, Spain, also showed Bajo de Masinloc as part of Philippine

territory. This map showed the route of the Malaspina expedition to and around theshoal. It was reproduced in the Atlas of the 1939 Philippine Census.

The Mapa General, Islas Filipinas, Observatorio de Manila, published in 1990 by the

U.S. Coast and Geodetic Survey, also included Bajo de Masinloc as part of the

Philippines.

Philippine flags have been erected on some of the islets of the shoal, including a flag

raised on an 8.3-meter high flagpole in 1965 and another Philippine flag raised by

Congressmen Roque Ablan and Jose Yap in 1997. In 1965, the Philippines also built

and operated a small lighthouse in one of the islets in the shoal. In 1992, the

Philippine Navy rehabilitated the lighthouse and reported it to theInternational

Maritime Organizationfor publication in the List of Lights (currently, this

lighthouse is not operational).

Bajo de Masinloc was also used as an impact rangeby Philippineand U.S. Naval

Forcesstationed in Subic Bayin 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 that

is fully consistent with the Law of the Sea, Bajo de Masinlocs was classified under

the Regime of Islands consistent with the Law of the Sea.

Section 2. The baseline in the following areas over which the Philippines likewise

exercises sovereignty and jurisdiction shall be determined as Regime of Islands


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under the Republic of the Philippines consistent with Article 121 of the United

Nations Convention on the Law of the Sea (UNCLOS):

a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596;

and

b) Bajo de Masinloc, also known as Scarborough Shoal.

Comments on Chinese claims

Question:

But what about the historical claim of China over Bajo de Masinloc (Scarborough

Shoal)? Does China have a much superior right over Bajo de Masinloc (Scarborough

Shoal) on the basis of its so-called historical claim? China is claiming Bajo de Masinloc

(Scarborough Shoal) based on historical arguments, claiming it to have been

discovered by the Yuan Dynasty? China is also claiming that Bajo de Masinloc(Scarborough Shoal) has been reflected on various official Chinese Maps and has been

named by China in various official documents?

Answer:

Chinese assertion based on historical claims must be substantiated by a clear

historic title. It should be noted that under public international law, historical

claimsare 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, effectiveoccupation, prescription, cession, and accretion. Also, under public international

law, for a historical claim tomatureinto a historical title, a mere showing of long

usage is not enough.

Other criteriahave to be satisfied such as that the usage must

be open, continuous, adverseor, in the concept of an

owner, peacefuland acquiescedby other states. Mere silence by other states to

ones claim is not acquiescence under international law.Acquiescencemust

be affirmativesuch that other states recognize such claim as a right on the part of

the claimant that other states ought to respect as a matter of duty. There is noindicationthat the international community haveacquiescedto Chinas so-called

historical claim.

In relation to name-giving and maps, name-giving (or names in general), and placing

of land features on maps, these are also not bases in determining sovereignty. In

international case law relating to questions of sovereignty and ownership of land


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features, names and maps are not significant factors in the determination of

international tribunals determination of sovereignty.

Question:

What about China claiming Bajo de Masinloc as traditional fishing watersof Chinese

fishermen?

Answer:

Under international law, fishing rights is nota 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 be considered as a

display of state authority. Fishingis aneconomic activitydone by private

individuals. For occupation to be effective, there has to be clear demonstrationof

the intention and will of a state to act as sovereign, and there has to be a peaceful

and continuous display of state authority, which the Philippines has consistentlydemonstrated.

Besides, when UNCLOS took effect, it has precisely appropriated various maritime

zones to coastal states, thus eliminating so-called historical waters and justly

appropriating the resources of the seas to coastal states to which said 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-calledfishermen can be hardly described as fishing. The evidence culled by the Philippine

Navy showed clearly that these are poaching activities involving the harvesting

of endangered marine species, which is illegalin the Philippines and illegal under

international law, specifically the CITES.

B. Waters outside and around Bajo de Masinloc: Basis of Philippine sovereign

rights under UNCLOS

As earlier indicated, there is a distinctionbetween the rock features of Bajo de

Masinloc and the waters within its vicinity. The question of who owns the rocks is amatter governed by the principles of public international law relating to modalities

for acquiring territories. On the other hand, the extent of its adjacent waters is

governed by UNCLOS. Likewise, 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 below water during high tide. Accordingly, these rocks


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have only 12 NM maximum territorial waters under Article 121 of UNCLOS. Because

the Philippines has sovereignty over the rocks of Bajo de Masinloc, it follows that it

has also sovereignty over their 12-NM territorial waters.

Question:

But what about the waters outside of the 12-NM territorial waters of the rock features

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 1508N and

longitude 11745E. It is approximately 124 NM off the nearest coast of the

Philippine province of Zambales. Clearly, the rock features of Bajo de Masinloc are

within the 200-NM EEZ and CS of the Philippine archipelago.

Therefore, the waters and continental shelves outside of the 12-NM territorial

waters of the rocks of Bajo de Masinloc appropriately belongto the 200-NM

EEZand CSof the Philippine archipelago. As such, the Philippines

exercises exclusive sovereign rightsto explore and exploit the resources within

the said 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 navigationover the said areas,such rights could not be exercised to the detrimentof the internationally

recognized sovereign rights of the Philippines to explore and exploit the resources

in its 200-NM EEZ and CS. To do otherwise would be in violation of international

law specifically UNCLOS.

Therefore, the current action of the Chinese surveillance vessels in the said 200-NM

EEZ of the Philippines that are law enforcement in nature is obviously

inconsistentwith its right of freedom of navigationand in violationof the

sovereign rights of the Philippines under UNCLOS.

It must also be noted that the Chinese fisherman earlier apprehended by Philippine

law enforcement agents may have poachednot on Bajo de Masinlocper se, but

likely on the EEZ of the Philippines. Therefore, these poachershave

likewise violatedthe sovereign rights of the Philippines under UNCLOS.

PRESENCE OF THE PHILIPPINE-REGISTERED ARCHEOLOGICAL VESSEL


16/19

The Philippine National Museum has been undertaking an official marine

archaeological survey in the vicinity of Bajo de Masinloc.

The archaeological survey is being conducted by the Philippine National Museum,

which is on board the Philippine motor yacht M/Y Saranggani.

Chinese maritime surveillance vessels have been harassing the M/Y Saranggani. The

Philippines has strongly protested these harassments by the Chinese side. Said

actions by the Chinese vessels are in violation of the sovereign right and jurisdiction

of the Philippines to conduct marine research or studies in its EEZ.

ENDANGERED SPECIES FOUND IN CHINESE FISHING VESSELS

The Philippine Navy, during a routine sovereignty patrol, saw eight fishing vessels

moored at the Bajo de Masinloc on April 10. The Philippine Navy inspected these

vessels and discovered that they were Chinese fishing vessels and on board were

illegally obtained endangered corals and giant clams in violation of the PhilippineFisheries Code.

The Philippines is a staunch advocate in protecting its marine environment from

any form of illegal fishing and poaching. It is a state party to the CITES and

Convention on Biological Diversity.

This illicit activity has also undermined the work of the Philippine government as a

member of the Coral Triangle Initiative.

The coral colonies in Bajo de Masinloc have been in existence for centuries.

CURRENT SITUATION

The Philippines is committed to the process of consultations with China toward a

peaceful and diplomatic solution to the situation.

As the DFA works toward a diplomatic solution, the Philippine Coast Guard is

present in the area and is continuing to enforce relevant Philippine laws.


17/19

Sabah

1878 Agreement

On 22 January 1878, the Sultanate of Sulu and a British commercial syndicate madeup of Alfred Dent and Baron von Overbeck signed an agreement, which, depending on

the translation used, stipulated that North Borneo was either ceded or leased to the

British syndicate in return for a payment of 5000 Malayan Dollars per year.[7][8] On

22 April 1903, Sultan Jamalul Kiram signed a document known as "Confirmation of

cession of certain islands", under which he grant and ceded additional islands in the

neighbourhood of the mainland of North Borneo from Banggi Island to Sibuku Bay to

British North Borneo Company.[9] The confirmatory deed of 1903 makes it known

and understood between the two parties that the islands mentioned were included in

the cession of the districts and islands mentioned in the 22 January 1878 agreement.Additional cession money was set at 300 dollars a year with arrears due for past

occupation of 3,200 dollars. The originally agreed 5,000 dollars increased to 5,300

dollars per year payable annually.[10][11] Note: The Confirmatory Deed of 1903

must be viewed in the light of the 1878 Agreement. The British North Borneo

Company entered into a Confirmatory Deed with the Sultanate of Sulu in 1903,

thereby confirming and ratifying what was done in 1878.

The key word in the agreement is padjak, a Malay term which was translated by

Spanish linguists in 1878 and by American anthropologists H. Otley Beyer and Harold

Conklin in 1946 as "arrendamiento" or "lease".[14][15][16] However, the Britishused the interpretation of historian Najeeb Mitry Saleeby in 1908 and William George

Maxwell and William Summer Gibson in 1924, which translated padjak as "grant and

cede".[12][17][18][19] It can be argued however, that "padjak" means "mortgage" or

"pawn" or even "wholesale", as per the contemporary meaning of "padjak" in

Sulu.[20][21]

Every year, the Malaysian Embassy in the Philippines issues a check in the amount of

5,300 ringgit (US$1710 or about 77,000 Philippine pesos) to the legal counsel of theheirs of the Sultan of Sulu. Malaysia considers the amount an annual cession

payment for the land, while the sultans descendants consider it rent.[22]

The forgoing Sulu claim rests on the treaty signed by Sultan Jamalalulazam of Sulu

appointing Baron de Overbeck as Dato Bendahara and Raja Sandakan on 22 January


18/19

1878. However, a further, earlier treaty signed by Sultan Abdul Momin of Brunei

appointed Baron de Overbeck as the Maharaja Sabah, Rajah Gaya and Sandakan. This

was signed on 29 December 1877, and granted the territories of Paitan as far as the

Sibuco River,[23] which overlaps the Sulu Sultanate's claim of their dominion in

Sabah. In 1877, the Brunei Sultanate still believed and maintained that the territorywas under its control.

..

The Sultanate of Sulu was granted the north-eastern part of the territory as a prize

for helping the Sultan of Brunei against his enemies in 1658. However, on 22 July

1878, the Sultanate of Sulu relinquished the sovereign rights over all his possessions

in favour of Spain, based on the "Bases of Peace and Capitulation" signed by the Sultan

of Sulu and Spain in Jolo. In 1885, Spain relinquished all of its claim to Borneo to the

United Kingdom of Great Britain and Ireland in the Madrid Protocol of 1885.[24] Once

the Madrid Protocol had been ratified, the British North Borneo Chartered companyproceeded with the administration of North Borneo, and in 1888, North Borneo

became a British protectorate.[27]

On 10 July 1946, the North Borneo Cession Order in Council, 1946, declared that the

State of North Borneo is annexed to the British Crown, hence becoming a British

colony. In September 1946, F. B. Harrison, former American Governor-General of the

Philippines urged the Philippine Government to protest this proclamation. America

posited the claim on the premise that Spain had never acquired sovereignty overNorth Borneo, and thus did not have the right to transfer claims of sovereignty over

North Borneo to the United Kingdom in the Madrid Protocol of 1885.[28] This

argument however, contradicts the treaty made between Spain and Sultanate of Sulu

in 1878, which expressly states that all of the territory of Sultanate of Sulu is

relinquished to Spain. Furthermore, the American view may be based on an

erroneous interpretation of that part of the 1878 and the earlier 1836 treaties, that

excluded North Borneo from the Sulu transfer to Spanish sovereignty (when in fact

the exclusion merely referred to Spanish protection offered to the Sultan of Sulu in

case he was attacked).

Exchange of notes constituting an agreement relating to the implementation of the

Manila Accord of 31 July 1963 between Philippines and Malaysia.[29]


19/19

North Borneo Claim - Diosdado Macapagal's Second State of the Nation Address on

28 January 1963

On 12 September 1962, during President Diosdado Macapagal's administration, the

territory of North Borneo, and the full sovereignty, title and dominion over it were

"ceded" by then reigning Sultan of Sulu, Muhammad Esmail E. Kiram I, to thePhilippines. The Philippines broke diplomatic relations with Malaysia after the

federation had included Sabah in 1963 but probably resumed it unofficially through

the Manila Accord in which the Philippines made it clear that its position on the

inclusion of North Borneo in the Federation of Malaysia is subject to the final outcome

of the Philippine claim to North Borneo, and the representatives of Indonesia and

Federation of Malaya seconded that the inclusion of North Borneo into the

aforementioned Federation "would not prejudice either the claim or any right

thereunder".[30]

It was revealed later in 1968 that President Ferdinand Marcos was training a team of

militants on Corregidor known as Operation Merdeka for infiltration into Sabah. The

plan failed as a result of the Jabidah massacre.

Diplomatic ties were resumed in 1989 and succeeding Philippine administrations

have placed the claim in abeyance in the interests of pursuing cordial economic and

security relations with Kuala Lumpur.[31]

The Republic Act 5446, which took effect on 18 September 1968, regards Sabah as a

territory "over which the Republic of the Philippines has acquired dominion and

sovereignty".[32] On 16 July 2011, the Supreme Court ruled that the Philippine claim

over Sabah is retained and may be pursued in the future.[33]

To date, Malaysia maintains that the Sabah claim is a non-issue and non-negotiable,

thereby rejecting any calls from the Philippines to resolve the matter in ICJ. Sabahauthorities sees the claim made by the Philippines' Moro leader Nur Misuari to take

Sabah to International Court of Justice (ICJ) as a non-issue and thus dismissed the

claim

philippine claim over spratly, scarborough & sabah (wiki)

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