Monday, 30 April 2012

The Philippines,China, the Scharborough Shoal and the UNCLOS

April 10th 2012 11:30AM (Philippine time ) the Philippines and China are locked in an impasse over the Scarborough shoal. When the Philippine navy warship BRP Gregorio del Pilar, was deployed there to arrest the Chinese fishermen for illegal poaching, but China sent three civilian surveillance vessels and took turns blocking the ship which sparked the standoff.  Both countries are claiming that this part of South China Sea or recently called West Philippine Sea are their territories.

What is Scarborough Shoal?
First we should know that Scarborough Shoal is different from Spratly Islands. Scarborough Shoal is located about 123 miles (198 km) west of Subic bay, the nearest landmass is Palauig, Zambales and at least 500 nautical miles from Hainan Island ( in 1988 this island became part of the newly created Hainan Province now home to China’s nuclear submarine base). While Spartly Islands is near Palawan with the farthest feature being just 100miles (161 km) away.

Scarborough Shoal or Scarborough Reef,   Philippine name: Panatag Shoal or Bajo de Masinloc,Chinese name: Huangyan Island. It  was named after a tea-trade ship Scarborough which was wrecked on the rock with everyone perishing on board in the late 18th century. It is correctly described as a group of islands and reefs in an atoll shape than a  shoal,it is located between the Macclesfield Bank (Zhongsha Islands)we will talk macclesfield bank later and Luzon Island of Philippines in the South China Sea. To the east, the 5,000 - 6,000 meter deep Manila Trench separates the shoal from Philippine Archipelago.  The shoal forms a triangle-shaped chain of reefs and islands,but mostly rocks 55 kilometres (34 mi) around with an of area 150 square kilometers. It has a lagoon with area of 130 km² and depth of about 15 metres (49 ft). The shoal is a protrusion from a 3,500 m deep abyssal plain. several of the islands including "South Rock" are 1/2 m to 3 m high and many of the reefs are just below water at high tide. Near the mouth of the lagoon are the
ruins of an iron tower, 8.3 m high. 

Start of Claims
After the Chinese Civil War in1950 , the People's Republic of China and the Republic of China (Taiwan) both lay claim to the shoal. Starting in 1997, Philippines joined in this dispute, making its claim to the shoal. 

The People's Republic of China and the Republic of China (Taiwan) claim that the shoal was first discovered and drawn in a map in the Yuan Dynasty as early as 1279 and was historically used by Chinese fishermen. In 1279, Guo Shoujing, a Chinese astronomer, performed surveying of the South China Sea, and the surveying point was reported to be the Scarborough Shoal. In 1935, China regarded the shoal as part of the Zhongsha Islands. In 1947, the shoal was given the name Minzhu Jiao. In 1983, it was renamed Huangyan Island with Minzhu Jiao reserved as a second name.

The Philippines 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. 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 defence purposes. An 8.3 meter high flag pole flying a Philippine flag was raised in 1965. A small lighthouse was also built and operated the same year. 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. Several Official Philippines maps published by Spain and United States in 18th and 20th century 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 shape of the shoal as consistent with the current maps available as today. During the 1900s Mapa General. Islas Filipinas, Observatorio de Manila and US Coast and Geodetic Survey Map includes the Scarborough Shoal named as "Baju De Masinloc". 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 . Another topographic map drawn in 1820 shows the shoal, named there as "Bajo Scarburo", as a constituent part of Sambalez (Zambales province).

The United Nations Convention on the Law of the Sea (UNCLOS)
Also called the Law of the Sea Convention or the Law of the Sea treaty. Is the international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III), which took place from 1973 through 1982.The convention was opened for signature on December 10, 1982 and entered into force on November 16, 1994 upon deposition of the 60th instrument of ratification.The convention is ratified by 162 states including the PHILIPPINES the 11th state who ratified on May 8 1984 and CHINA the 92nd state who ratified on June 7 1996 click here.  The Law of the Sea Convention defines the rights and responsibilities of nations in their use of the world's oceans, establishing guidelines for businesses,the environment, and the management of marine natural resources.The Convention, concluded in 1982, replaced four 1958 treaties. UNCLOS came into force in 1994, To date, 162 countries and the European Community have joined in the Convention. However, it is uncertain as to what extent the Convention codifies customary international law. While the Secretary General of the United Nations receives instruments of ratification and accession and the UN provides support for meetings of states party to the Convention,the UN has no direct operational role in the implementation of the Convention.There is, however, a role played by organizations such as the International Maritime Organization,the International Whaling Commission, and the International Seabed Authority(the latter being established by the UN Convention).

The convention introduced a number of provisions.The most significant issues covered were setting limits, navigation, archipelagic status and transit regimes, exclusive economic zones(EEZs), continental shelf jurisdiction, deep seabed mining,the exploitation regime, protection of the marine environment, scientific research, and settlement of disputes.
The convention set the limit of various areas, measured from a carefully defined baseline. A sea baseline follows the low-water line, but when the coastline is deeply indented, has fringing islands or is highly unstable, straight baselines may be used.
Internal waters
According to the United Nations Convention on the Law of the Sea or UNCLOS Internal waters covers all water and waterways on the landward side of  the baseline.The coastal state is free to set laws, regulate use, and use any resource. Foreign vessels have no right of passage within internal waters.

Territorial waters
Out to 12 nautical miles (22 kilometres; 14 miles) from the baseline,the coastal state is free to set laws, regulate use, and use any resource. Vessels were given the right of innocent passage through any territorial waters,with strategic straits allowing the passage of military craft as transit passage, in that naval vessels are allowed to maintain postures that would be illegal in territorial waters. "Innocent passage"is defined by the convention as passing through waters in an expeditious and continuous manner, which is not "prejudicial to the peace, good order or the security" of the coastal state. Fishing, polluting, weapons practice, and spying are not "innocent", and submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Nations can also temporarily suspend innocent passage in specific areas of their territorial seas, if doing so is essential for the protection of its security.

Archipelagic waters
The convention set the definition of Archipelagic States in Part IV, which also defines how the state can draw its territorial borders. A baseline is drawn between the outermost points of the outermost islands, subject to these points being sufficiently close to one another. All waters inside this baseline are designated Archipelagic Waters.The state has full sovereignty over these waters (like internal waters), but foreign vessels have right of
innocent passage through archipelagic waters (like territorial waters).

Contiguous zone
Beyond the 12 nautical mile limit,there is a further 12 nautical miles from the territorial sea baselines limit,the contiguous zone, in which a state can continue to enforce laws in four specific areas: customs, taxation, immigration and pollution, if the infringement started with in the state's territory or territorial waters, or if this infringement is about to occur within the state's territory or territorial waters.This makes the contiguous zone a hot pursuit area.

Exclusive economic zones (EEZs)
These extend from the edge of the territorial sea out to 200 nautical miles (370 kilometres; 230 miles) from the baseline.Within this area,the coastal nation has sole exploitation rights over all natural resources. In casual use,the term may include the territorial sea and even the continental shelf.The EEZs were introduced to halt the increasingly heated clashes over fishing rights, although oil was also becoming important.The success of an offshore oil platform in the Gulf of Mexico in 1947 was soon repeated elsewhere in the world, and by 1970 it was technically feasible to operate in waters 4000 metres deep. Foreign nations have the freedom of navigation and overflight, subject to the regulation of the coastal states. Foreign states may also lay submarine pipes and cables.

Continental shelf
The continental shelf is defined as the natural prolongation of the land territory to the continental margin’s outer edge, or 200 nautical miles from the coastal state’s baseline, which ever is greater. A state’s continental shelf may exceed 200 nautical miles until the natural prolongation ends. However, it may never exceed 350 nautical miles (650 kilometres; 400 miles) from the baseline; or it may never exceed 100 nautical miles (190 kilometres; 120 miles) beyond the 2,500 meter iso bath (the line connecting the depth of 2,500 meters). Coastal states have the right to harvest mineral and non-living material in the subsoil of its continental shelf, to the exclusion of others. Coastal states also have exclusive control over living resources "attached" to the continental shelf, but not to creatures living in the water column beyond the exclusive economic zone.
Aside from its provisions defining ocean boundaries,the convention establishes general obligations for safeguarding the marine environment and protecting freedom of scientific research on the high seas, and also creates an innovative legal regime for controlling
mineral resource exploitation in deep seabed areas beyond national jurisdiction, through an International Seabed Authority and the Common heritage of mankind principle.
Landlocked states are given a right of access to and from the sea,without taxation of traffic through transit states.

View Point
The tension in Scarborough shoal is resembling a tag of war between the ancient history references and the present day international law agreement between these two countries. As the 92nd country who ratified the UNCLOS, China knows what they are doing that is why they are not willing to discuss this matter in the UN tribunal. As their population growth is uncontrollable they will require more resources and the bottom line is, the Chinese want their share of fish, oil and natural gas which these islands can offer. As of the Philippines they should make their military strong enough to prevent any intrusions from other countries, they should not depend on the Americans on protecting their territories. What if America will not be on the Philippines side, as China and America have a high value of economic trade.China is reclaiming their ancient territories, from Tibet to India down to the West Philippine Sea.

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