May 06, 2023

Do We Really Own Scarborough Shoal?


FIRST, let me define what a shoal is.

It is a sandbank or sandbar that makes the water around it shallow. For example, the former Engineer's Island, now the Baseco (Bataan Shipping and Engineering Company) is a sandbar. That is why most of it goes underwater during high tide or when there is a typhoon. Sometimes, on a clear day, you might see a person walking in the middle of Taal Lake; it is not an apparition of Jesus Christ walking on water, but a fisherman treading on a sandbar.

In the case of the Philippines vs. China (PCA Case 2013-19), resolved by the Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea (Unclos), the matter of sovereignty or ownership of the Scarborough Shoal was left undecided. Why? Let me explain.

China and the Philippines both claim sovereignty over the Scarborough Shoal and both countries consider it as their fishermen's traditional fishing ground.

Because of jurisdictional limitations, the arbitral tribunal did not rule on who has sovereignty over Scarborough Shoal, but instead ruled that China violated the artisanal fishing rights of the Philippines in the Scarborough Shoal when it prevented Filipino fishermen from entering and fishing in the said area.

Scarborough Shoal is a high-tide elevation and therefore, it generates a territorial sea of 12 nautical miles. Had the tribunal ruled on the issue of who owns the Scarborough Shoal — China or the Philippines — that would have been a ruling on the sovereignty issue with a ruling on maritime delimitation thrown in for good measure. Since the arbitral tribunal cannot rule on the issue of sovereignty or maritime delimitation, it instead ruled on the issues involving the application and interpretation of the Unclos.

The arbitral tribunal said that the Scarborough Shoal has been a traditional fishing ground for fishermen of many nationalities, including the Philippines, China (including Taiwan) and Vietnam. The tribunal accepts the fact that both the Philippines and China claim that they have traditionally fished in the shoal and that these claims are accurate and advanced in good faith.

The arbitral tribunal further said: "Traditional fishing rights constitute a vested right, and the tribunal considers the rules of international law on the treatment of the vested rights of foreign nationals to fall squarely within the other rules of international law applicable in the territorial sea."

As clearly stipulated by the arbitral tribunal, both Filipino and Chinese fishermen have the right to fish in the Scarborough Shoal using small boats and traditional methods, China's actions of totally preventing Filipino fishermen from fishing in the Scarborough Shoal are against international law and the Unclos, and are not compatible with the respect due under international law to the traditional fishing rights of Filipino fishermen.

The arbitral tribunal cited the case of Eritrea v Yemen in explaining artisanal rights:

"The term 'artisanal' is not to be understood as applying in the future only to a certain type of fishing exactly as it is practiced today. 'Artisanal fishing' is used in contrast to 'industrial fishing.' It does not exclude improvements in powering small boats, in the techniques of navigation, communication or in the techniques of fishing; but the traditional regime of fishing does not extend to large scale commercial or industrial fishing..."

And what is the basis for the protection of artisanal fishing rights in international law?

According to the tribunal, "Having pursued a livelihood through artisanal fishing over an extended period, generations of fishermen have acquired a right, akin to property, in the ability to continue to fish in the manner of their forebears." The tribunal also cited the Abyei Arbitration which made the following observation: "Traditional rights, in the absence of an explicit agreement to the contrary, have usually been deemed to remain unaffected by any territorial delimitation."

The ownership or sovereignty question, therefore, is an open wound, but one does not have to be a rocket scientist to figure out who really owns it. All he has to do is look at the map, squarely fix the distance of Scarborough Shoal vis-à-vis China and the Philippines, and take into account the history of Scarborough Shoal itself in the last 150 years. The Chinese did not find it gobsmacked by serendipity.

Since the 1860s, when the world saw the advent of the Industrial Revolution, sea rise has accelerated at a steady pace. Perhaps the day will come, sooner than one thinks, when those mounds of rocks and sand called Scarborough Shoal will disappear altogether, swallowed by the sea, only to undoubtedly form part of the exclusive economic zone of the Philippines, protected by the provisions of that agreement we call the Law of the Sea.

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Source: Turmoil at the South China Sea-The Philippines vs. China Arbitration and Other Relevant Matters by Saul Hofileña Jr. and Daniel Hofileña, Baybayin Publishing, 2022.

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