AUDIE HARRISON B.

ROJAS
SPECIAL ISSUES IN INTERNATIONAL LAW
2PM- 4PM

The Philippine Territorial Claim on the West Philippine Sea

MEMORANDUM

I. Background

The West Philippine Sea or the South China Sea is a body water

surrounded by six states namely; China (southern coast and Hainan Island)

in the north, Taiwan in the northeast, The Philippines in the east and

southeast, Vietnam in the west, and Brunei, Malaysia, and Indonesia in the

south.

Subject of Claims

In the West Philippine Sea, there are small insular features which are

subject to claims by both The Philippines and the People’s Republic of

China these are the Scarborough Shoal and the Spratly Islands. The

Scarborough Shoal is a submerged coral reef with six small protrusions of

rock above sea level at high tide. While the Spratly Islands are a group of

one hundred fifty (150) rocks, submerged reefs, banks and low tide
elevation, among these features that are subject to dispute in the

Spratlysare the rocks; Johnson Reef, Cuarteron Reef, and Fiery Cross

Reef and those composing the continental shelf of the Philippines; Mischief

Reef, McKennan Reef, Gaven Reef, and Subi Reef. The Scarborough

Shoal is located one hundred twenty meters (120) in the west of the coast

of the Philippines and the Spratly Islands fifty (50) and (350) M from the

Island of Palawan, Philippines and five hundred fifty (550) M of the Island of

Hainan, China. The Scarborough Shoal and the Spratly Islands form part of

the Philippine’s two hundred (200) M Exclusive Economic Zone or

Contiguous Zone under the United Nations Convention on the Law of the

Sea (UNCLOS). China, however, claims that the disputed insular features

form part of their “Nine-Dash Line”which posits the territorial demarcation

for their claims in the South China Sea.

The demarcation made by China has its basis in the claim that, China

has complete authority and sovereignty over those islands as they

reclaimed the territories following the defeat of Japan during the Second

World War as stated in the Cairo and Potsdam Declarations. The Nine-

Dash Line however, is not consistent with nor supported by thelaws on the

sea and territorial claims such as the UNCLOS.Nonetheless, the

aforementioned rocks and continental shelves are being occupied by China

at present and is heavily opposed by the Philippines as prejudicial to the

country’s territorial integrity and sovereignty, hence this dispute.

II. Arbitration and Settlement

Due to the foregoing disputes over the Spratlys and Scarborough

Shoal disputes between the two states and failure of the Philippine-China

Bilateral Negotiations to secure final settlement of the dispute despite its

20 years of long negotiations having commenced in 1995, the Philippines

initiated a recourse to compulsory arbitration in an arbitral tribunal under

Articles 281 (1),286, 287 (5) of the UNCLOS. Such action by the

Philippines, being a state-party to the convention is proper for the final

settlement despite China, also being a state-party, refuses to subject itself

to arbitration.

II. Basis of Philippine Claim (International law)

The government of the Philippines espouses its claims on the disputed

insular features on the following bases: (1) Legal Basis : That the Spratlys

Islands and Scarborough Shoalform part of the Philippines’ Exclusive

Economic Zone under Part II, Rights to a Territorial Sea and Exclusive

Economic Zone, Part V, Exclusive Economic Zone, and Part VI

Continental Shelf of the United Nations Convention on the Law of the Sea
(2) Historical Basis: The historical rights as the ancestral domain of the

Sultanate of Sulu date backs from the Mahjapahit and Shrivijaya empires,

which extended from Sabah (North Borneo), the Sulu archipelago,

Palawan, parts of Mindanao, the islands now known as the Spratlys,

Palawan, and up to the Visayas and Manila.

The legal basis of the Philippines under International Law will be the

subject matter of the discussions in this position paper.

The Philippines and China, being signatories of the UNCLOS are

bound to observe and obey the provisions of the Convention under the

Doctrines of “PactaSuntServanda” and “Auto limitation”. Under

PactaSuntServanda, China, being a signatory of the convention, must

observe in good faith and full respect, the rules provided by the convention

in delimiting the scope of exercise of sovereignty in the seas. China cannot

assert its refusal to the arbitrationon the ground that it is their right in

international law to not give consent to be bound, for this defense is already

defeated by their capacity as a state-party in the convention. China is left

with no legal remedy to assert its claim because its signature with the

UNCLOS is already an implied auto limitation on the exercise of its

sovereign rights under the international community.

 Why the Philippine Claim may not prosper in the Arbitration

Although the government of the Philippines may have strong and

compelling bases in asserting its rights over the disputed islands under

international law, such as dependence on the provisions of the UNCLOS. It

may not be sufficient for the claim to prosper in the arbitration. The reason

why is that the Chinese government already occupied and asserted its

presence in the disputed territories. China has constructed establishments

and facilities on Mischief, McKennan,Gaven, and Subi Reefs. Eventually,

China may have effective control over the territories and in no time will be

the state exercising sovereignty over such.

In existing jurisprudence on territorial claims in international law, it is

upheld in the case of The Island of Palmas (Perm.CtArb. 1928 )that an

inchoate title cannot prevail over a definite title founded on continuous and

peaceful display of sovereignty. In this case, the United States as

successor to the rights of Spain in the Philippines bases its title in the

Island of Palmason discovery and by treaty as it also forms a geographical

part of the Philippines, lost its claim to the Island of Palmas to The

Netherlands. It is because, The Netherlands has acquired continuous and

peaceful display of state authority over the Island of Palmas although by

treaty is part of the Philippines under the United States.The similar case of
the PulauLigitan and Sipadan dispute between Malaysia and Indonesia

also holds the same reason for effective occupation over mere title.

In this case, Chinese occupation over Spratlys and Scarborough Shoal

could lead to effective occupation.