Tag Archives: international arbitration

South China Sea arbitration: Beijing puts forward her own views: The Finale

By Alex Calvo

This is the final installment in a four-part series devoted to China’s 7 December 2014 document, putting forward her views on the Philippines’ international arbitration case on the South China Sea. Although Beijing is refusing to take part in the proceedings, as confirmed following the Court’s 29 October 2015 ruling on jurisdiction, by issuing this document, and communicating in other ways with the Court, the PRC has failed to completely stay aloof from the case. It is thus interesting to analyze China’s narrative as laid down in that document. Read Part OnePart Two, Part Three

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The South China Sea and the Arctic: contradictions in China’s posture? Beijing’s insistence on excluding non-littoral estates from the dispute furthermore clashes with Chinese policy in the Arctic, where the country seeks a voice, arguing that despite just being a (self-labeled) “quasi-Arctic state” it has a right to at the very least make its voice heard given that the region has an impact on its interests. Countries like India, Japan, and the United States, may well put forward similar views concerning the South China Sea, considering themselves to be “quasi-littoral” states given among others their dependence on Sea Lanes of Communication (SLOCs) going through it.

Incentives to delay negotiations. A number of contradictory arguments may be put forward concerning this. Those wishing to blame China may accuse Beijing of seeking to change facts on the ground first (by, for example, occupation of some features and the artificial expansion of others), before engaging in meaningful negotiations. They may also argue Beijing is waiting for the balance of naval power in the region to shift further in her favor, or for developments elsewhere in the world to weaken the resolve of non-regional actors to intervene. On the other hand, those seeking to blame the Philippines may put forward similar accusations, arguing that Manila wishes to rearm (with US and Japanese assistance) first before engaging in serious negotiations with China. These voices may also put forward the view that Manila first wishes to take the moral high ground (among other means by the international arbitration bid), secure stronger support by the United States, or draw in other interested parties like Japan. We can thus see how both sides have potential reasons not to seek a speedy start of bilateral negotiations.

China defends cooperation prior to delimitation, but it is Taiwan and Japan which have implemented the principle. Section IV is perhaps not so original, basically reiterating arguments already expounded in Section III. It still contains some paragraphs worthy of comment, though. In Paragraph 61 the text refers to the “Agreement for Joint Marine Seismic Undertaking in Certain Areas in the South China Sea” between China National Offshore Oil Corporation and Philippine National Oil Company, expanded in 2005 to “a tripartite agreement, with the participation of Vietnam Oil and Gas Corporation.” The text praises it as “a good example of the constructive efforts made by the States concerned to enhance cooperation and create conditions for a negotiated settlement of the disputes in the South China Sea,” stressing that the “maritime area covered by that agreement is within that covered in the present arbitration initiated by the Philippines.” Few would disagree that agreements like this do indeed offer an interesting path, allowing states party to a dispute to build trust while concentrating on the joint development and management of natural resources, leaving for later tricky questions of sovereignty. When we move from the realm of theory to that of practice, however, we find that such efforts involving China have not been successful. In the South China Sea, possible cooperation seems to have given way to violent competition, with oil rigs becoming “weapons” rather than symbols of cooperation. In the East China Sea, where a similar agreement was concluded with Japan, it later unraveled and has not been implemented. It is Taiwan, not China, that has actively pushed for joint management that could proceed while leaving sovereignty for later. This has resulted not only in President Ma’s East China Sea Peace Initiative, but in a fisheries agreement with Japan along these lines. Whatever the reasons, no similar agreement has been concluded and effectively implemented by the PRC.

 8,- “Chinese Embassy to the Netherlands. While refusing to take part in the arbitration proceedings, China has regularly communicated with the Court, often through this Embassy.

Chinese Embassy to the Netherlands. While refusing to take part in the arbitration proceedings, China has regularly communicated with the Court, often through this Embassy.

Partial versus comprehensive solutions in territorial conflicts. It is interesting to note the position paper’s critique of Manila’s arbitration bid in Paragraph 68, which argues that “The issues presented by the Philippines for arbitration constitute an integral part of maritime delimitation between China and the Philippines” and that “The Philippines’ approach of splitting its maritime delimitation dispute with China and selecting some of the issues for arbitration, if permitted, will inevitably destroy the integrity and indivisibility of maritime delimitation and contravene the principle that maritime delimitation must be based on international law as referred to in Article 38 of the ICJ Statute and that ‘all relevant factors must be taken into account.’ This will adversely affect the future equitable solution of the dispute of maritime delimitation between China and the Philippines.” While the first sentence is just a reiteration, the second one touches upon a legitimate concern, given that any partial ruling runs the risk not only of being difficult to implement due to its non-comprehensive nature, but also of not being equitable for lack of consideration of certain factors concerning areas or aspects not included in the arbitration proceedings. This could be a reason to reject this approach. On the other hand, it could be said that history shows how countries often reach limited agreements, either because they are unable to successfully reach a comprehensive settlement, or because they prefer to start dealing with those issues where they either expect it to be easier to reach an understanding or which are more pressing. China is no stranger to this posture. The reference to equity though is important since an equitable settlement is often one involving tradeoffs, and such tradeoffs will often only be acceptable when covering a case’s full spectrum of issues.

The long shadow of history in China’s narrative against compulsory arbitration. In Section V the text demands full respect for China’s “right to freely choose the means of dispute settlement”, while defending the position that the “rejection of and non-participation in the present arbitration is solidly grounded in international law.” The stress on “consent” (76), while not amounting to any Chinese singularity, may also reflect the country’s experience with the so-called “unequal treaties.” Also important is the reference (76) to the “package deal” nature of UNCLOS, which is indeed the case, and as the text notes involved “extended and arduous negotiations” with regard to Part XV dealing with dispute settlement. The position paper insists (78) that the resulting “balance” in that Part was “a critical factor” prompting many countries to sign the convention, and again cites the Southern Bluefin Tuna Case, this time to reinforce the notion that compulsory arbitration should be restricted to cases where all parties agreed to it. The problem with this is that if all parties agree to arbitration, then there is no need for the procedure to be compulsory, and if compulsory proceedings are provided for, it is with a view to at least some cases where one or more countries may indeed oppose them. If “compulsory” arbitration could only move forward with the post-ratification consent of all parties involved, one could argue that there would be no need for UNCLOS to lay down areas where arbitration could be mandatory.

Abuse of right. Another legal principle that the text delves into (84) is that of “abuse of right”, in tandem with the above-mentioned “good faith.” These are general principles of law found, in some form or another, in most legal systems. The text cites Article 300 of UNCLOS, which lays down that “States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right,” adding that Manila has not done so by seeking to bypass Beijing’s refusal to engage in arbitration and existing agreements to settle the dispute by negotiations.

Conclusions. Beijing’s document, despite stressing that it is not a formal reply, systematically rejects all of Manila’s arguments, while summarizing China’s position. While China emphasizes the Philippines’ alleged promise to deal with the issue bilaterally, the text refers to treaties between other countries, mentions ASEAN, and touches upon the sensitive issue of Taiwan, in a reminder of how difficult it is to keep things bilateral in this corner of the world. Reading in between lines we can also see how history casts a long shadow over Beijing’s position, a position which is not always free from contradictions, for example when it defends the delay in opening up negotiations with Manila by stressing the complexities involved due to among others the large number of parties, while at the same time emphasizing her traditional stance that the dispute should be approached bilaterally. At the end of the day, it will be might (in a broad sense of the word, not necessarily limited to naval power, and in particular traditional lethal naval power), rather than right which will determine the fate of the South China Sea, but this does not mean that international law will not play a role, and hence the need to carefully follow developments in the international arbitration case initiated by the Philippines, together with rearmament and greater coordination among maritime democracies.

Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here.

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South China Sea arbitration: Beijing puts forward her own views Part Two

By Alex Calvo

This is the second installment in a four-part series devoted to China’s 7 December 2014 document, putting forward her views on the Philippines’ international arbitration case on the South China Sea. Although Beijing is refusing to take part in the proceedings, as confirmed following the Court’s 29 October 2015 ruling on jurisdiction, by issuing this document, and communicating in other ways with the Court, the PRC has failed to completely stay aloof from the case. It is thus interesting to analyze China’s narrative as laid down in that document. Read Part One.

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Putting the cart before the horse? China argues delimitation of land territories must come first. The text affirms (6) that “Since the 1970s, the Philippines has illegally occupied a number of maritime features of China’s Nansha Islands, including Mahuan Dao, Feixin Dao, Zhongye Dao, Nanyao Dao, Beizi Dao, Xiyue Dao, Shuanghuang Shazhou and Siling Jiao. Furthermore, it unlawfully designated a so-called ‘Kalayaan Island Group’ to encompass some of the maritime features of China’s Nansha Islands and claimed sovereignty over them, together with adjacent but vast maritime areas,” claiming sovereignty “over Huangyan Dao of China’s Zhongsha Islands and illegally explored and exploited the resources on those maritime features and in the adjacent maritime areas,” and (10) argues that in any case it is not possible to rule “on whether China’s maritime claims in the South China Sea have exceeded the extent allowed under the Convention” until “the extent of China’s territorial sovereignty in the South China Sea” has been determined.

This argument is central to China’s case, being the opposite of one of the pillars of Manila’s arbitration bid, namely that it only concerns the extent and manner that rights are exercised, rather than territorial delimitation, which is out of bounds to the court due to Beijing’s derogation (that is, opt out from that aspect of the convention, meaning that compulsory arbitration does not extend to territoria delimination in the case of China), which Manila acknowledges. To press the issue further, Beijing cites the ICJ, (11) pointing out that “the land dominates the sea.” That is, it argues that one cannot discuss whether the sea is being used in accordance with UNCLOS before a full determination of a country’s land territory has been made, a determination not open to the Permanent Court of Arbitration without Beijing’s consent. The text calls (14) Manila’s attempt to examine the former “contrived packaging” which “fails to conceal the very essence of the subject-matter of the arbitration, namely, the territorial sovereignty over certain maritime features in the South China Sea.” Another, less aggressive, term employed by the text (18) to press home the same point is “putting the cart before the horse.” To support this view, the document argues (18) that there is no precedent “in relevant cases” of any “international judicial or arbitral body” having “ever applied the Convention to determine the maritime rights derived from a maritime feature before sovereignty over that feature is decided.” While international tribunals like the PAC are not, formally speaking, bound to the doctrine of precedent (stare decisis), they do tend to follow previous rulings. However, there have not been a large number of cases, much less a coherent set of rulings, on this issue. Therefore, we may say that there is simply no consistent body of case law on whether it is possible to examine compliance with UNCLOS of a country’s practice at sea in advance of territorial determination.

“China claims reclamation work in the South China Sea is in accordance with international law.”
“China claims reclamation work in the South China Sea is in accordance with international law.”

Appropriation of low-tide elevations: Beijing argues not up to interpretation of UNCLOS. Concerning the “low-tide elevations” that Manila claims to be such and has included in its arbitration bid, saying that they cannot be appropriated, China’s document (23 and 24) argues that “whether or not” they “can be appropriated is plainly a question of territorial sovereignty.” Formerly often referred to as “drying rocks” or “banks,” UNCLOS defines “low-tide elevations” as “a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide.” The Chinese paper states that it “will not comment” on whether they are “indeed low-tide elevations,” while pointing out that “whatever nature those features possess, the Philippines itself has persisted in claiming sovereignty over them since the 1970s,” citing “Presidential Decree No. 1596, promulgated on 11 June 1978” whereby Manila “made known its unlawful claim to sovereignty over some maritime features in the Nansha Islands including the aforementioned features, together with the adjacent but vast areas of waters, sea-bed, subsoil, continental margin and superjacent airspace, and constituted the vast area as a new municipality of the province of Palawan, entitled ‘Kalayaan.’” China’s position paper cites later Filipino legislation, arguing that while pretending to adjust claims to UNCLOS it does “not vary the territorial claim of the Philippines to the relevant maritime features, including those it alleged in this arbitration as low-tide elevations.” The text accuses Manila of contradicting herself by first asserting in “Note Verbale No. 000228, addressed to Secretary-General of the United Nations on 5 April 2011” that “the Kalayaan Island Group (KIG) constitutes an integral part of the Philippines,” the KIG including among others “the very features it now labels as low-tide elevations,” with the “only motive” being to deny them to China and “place them under Philippine sovereignty.” Furthermore, the position paper argues (25) that UNCLOS “is silent on this issue of appropriation” of low-tide features, citing the ICJ in the 2001 Qatar v. Bahrain ruling, where it stated that “International treaty law is silent on the question whether low-tide elevations can be considered to be ‘territory.’ Nor is the Court aware of a uniform and widespread State practice which might have given rise to a customary rule which unequivocally permits or excludes appropriation of low-tide elevations.” The text also cites a later 2012 ICJ case, the “Territorial and Maritime Dispute (Nicaragua v. Colombia),” where it stated that “low-tide elevations cannot be appropriated” but argues that the Court “did not point to any legal basis for this conclusory statement. Nor did it touch upon the legal status of low-tide elevations as components of an archipelago, or sovereignty or claims of sovereignty that may have long existed over such features in a particular maritime area,” adding that “the ICJ did not apply the Convention in that case.” Therefore, China’s position paper argues, “Whether or not low-tide elevations can be appropriated is not a question concerning the interpretation or application of the Convention.”

Taiwan: lurking on the background. Taiwan and the “One-China Principle” are not absent from China’s document either, the text (22) accusing Manila of committing a “grave violation” of the principle for omitting Taiping Dao (Island) from the list of “maritime features” described as “occupied or controlled by China.” Instead, the text describes it as being “currently controlled by the Taiwan authorities of China.” This is a reminder that the conflict over the South China Sea is connected with that over Taiwan, in a number of ways. We may ask ourselves whether Manila was departing here from her “One-China Policy.” Was this a warning shot, or merely another example of how state practice concerning Taiwan is moving (sometimes inadvertently) away from Beijing’s strict position in many countries.

The burning question of freedom of navigation and overflight. Given the current controversy over FON (Freedom of Navigation) operations by the US Navy, along or together with partners and allies, close to China’s artificial islands in the South China Sea, this is an aspect of Beijing’s paper of great interest to observers. Concerning this, section 28 stresses that “China always respects the freedom of navigation and overflight enjoyed by all States in the South China Sea in accordance with international law.” While this is in line with repeated assertions by Chinese authorities, it prompts further doubts on the exact nature of Beijing’s claims, in the sense that if all it was demanding was an EEZ then freedom of navigation and overflight would simply flow from international law, without the need for any concession by the coastal state. The issue is made more complex by the fact that in Beijing’s view the rights of coastal states are more extensive than in the eyes of countries such as the United States, going as far as including the right to authorize or deny military activities such as electronic intelligence gathering, which has been the source of a number of incidents, some of them fatal. Thus, if what China is claiming is an EEZ, is Beijing making a concession and accepting a lesser set of coastal state rights in the particular case of the South China Sea? Alternatively, should we read “freedom of navigation and overflight” as being restricted to civilian ships and planes, or at least not including any activities such as ELINT (electronic intelligence) gathering, prejudicial to the coastal state? Other questions may be prompted by China’s assertion. For example, does this also apply to territorial waters around Chinese islands in the South China Sea? A question made more complex by the fact that there is no agreement over which islands are islands there, in particular given the extensive reclamation work taking place.

Read the next installment here

Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here.

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South China Sea arbitration: Beijing puts forward her own views Part One

By Alex Calvo

Introduction: restatement or small Filipino victory? Manila’s international arbitration bid has been repeatedly rejected by Beijing, which argues that it does not fall under the compulsory arbitration provisions of UNCLOS. Even after the Court ruled on jurisdiction, on 29 October 2015, China stuck to this position, as clear from an official statement the following day. However, despite repeatedly refusing to appear before the court, last year Beijing chose to issue a formal document stating her posture. For some this may simply be a restatement of China’s position, confirming that it will not take part in the proceedings. For others, it amounts to a small victory for the Philippines and the rule of law at sea, since China has finally been unable to completely ignore the proceedings. Whatever one thinks about it, it is useful to examine the document, dated 7 December 2014 (unclear whether any pun intended), while we wait for the Permanent Court of Arbitration to hold the first oral hearings on the substantive aspects of the case, scheduled for late November 2015. We shall be doing so in this four-part series.

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Chinese attitudes towards international law. Post-Mao China has followed a somewhat contradictory approach to international law. To a large extent, this mirrors the country’s complex domestic relationship with the concept of the rule of law. On the one hand, China’s reopening of her law schools after the Cultural Revolution and huge expansion of the legal profession and the practical, day to day, presence of the law, has led to a similar move in the international arena. However, this greatly expanded role of the law both domestically and internationally has been accompanied, in the internal domain, by a persistent rejection of the concept of “rule of law”, authorities rather leaning towards “rule by law.” In Chinese foreign relations, international law has had to contend with two obstacles. First, there is a mistrust of international tribunals, and the fear that they may impinge on Chinese sovereignty. Moreover, the South China Sea has been defined as a “core national interest,” although the exact meaning of this term may not be completely clear. Second, with the notion that public international law is a creature of Western nations and thus inextricably linked to a historical period of foreign domination that only began to be reversed after the 1949 Communist victory, or now that Chiang Kai-shek seems to be enjoying some sort of rehabilitation in China the 1943 Cairo conference. This applies particularly to the law of the sea, seen as unfairly constraining the legitimate aspirations of a nation that has grown increasingly dependent on maritime trade and which feels surrounded by a chain of islands in hostile hands.

The paper’s purposes, according to Beijing. After an introduction, making it clear that issuing the paper does not amount to taking part in the arbitral proceedings, the text lists in Paragraph 3 the main purposes of the paper, each such purpose covered in sections II to V. These goals are first of all (Section II, Paragraphs 4-29) to stress that the case concerns “the territorial sovereignty over several maritime features in the South China Sea,” which, contrary to Filipino assertions, “is beyond the scope of the Convention and does not concern the interpretation or application of the Convention.” Section III, Paragraphs 30-56 explains that “China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations” and that the arbitration proceedings are thus a breach by Manila of “its obligation under international law.” Section IV, Paragraphs 57-75 explains Beijing’s position that, “assuming, arguendo, that the subject-matter of the arbitration” was interpreting or applying UNCLOS, this would still be “an integral part of maritime delimitation” thus falling squarely within China’s derogation from compulsory arbitration. Section V, Paragraphs 76-85 underlines that “the Arbitral Tribunal manifestly has no jurisdiction over the present arbitration” and defends the view that China’s refusal to take part in the proceedings stands “on solid ground in international law.” These sections are followed by a set of Conclusions (Section VI, Paragraphs 86-93).

The 1898 Treaty of Paris in the PRC’s narrative of the conflict. In Section II, the document (5) explains that “Prior to the 1970s, Philippine law had set clear limits for the territory of the Philippines, which did not involve any of China’s maritime features in the South China Sea,” citing Article 1 of the 1935 Constitution, which reads “The Philippines comprises all the territory ceded to the United States by the Treaty of Paris concluded between the United States and Spain on the tenth day of December, eighteen hundred and ninety-eight, the limits of which are set forth in Article III of said treaty, together with all the islands embraced in the treaty concluded at Washington between the United States and Spain on the seventh day of November, nineteen hundred, and the treaty concluded between the United States and Great Britain on the second day of January, nineteen hundred and thirty, and all territory over which the present Government of the Philippine Islands exercises jurisdiction.” It added that the 1961 Philippine Republic Act No. 3046, titled “An Act to Define the Baselines of the Territorial Sea of the Philippines,” confirmed such territorial limits.

Replica of one of Admiral Zheng He's treasure ships, built in 2014. As China turns to the sea, she is stressing his figure.
Replica of one of Admiral Zheng He’s treasure ships, built in 2014. As China turns to the sea, she is stressing his figure.

Setting aside for a moment whether Manila has indeed redefined the limits to her national territory, this is potentially very significant because as reiterated in last year’s US Department of State “Limits on the Sea” No 143 paper, devoted to China, Washington has persistently stressed that it was taking no sides concerning the ultimate issue of sovereignty. Yet, while this may be sustainable in the case of other territorial disputes in the region, the case of the Philippines is rather different, given that the country was under US sovereignty for more than half a century. Thus, whatever one makes of Beijing’s case, it is difficult not to agree that past treaties signed by the United States may be relevant to the issue at hand. A question may be what, if any, may be Beijing’s motivation in bringing up such treaties, in addition to providing arguments in favor of its posture concerning the extent of Filipino territorial claims. Is Beijing perhaps hoping to prompt Washington to publicly comment on the matter in a way that may be detrimental to Manila? Or to quietly lean on the Philippines not to go too far? These may be speculative questions, yet ones difficult to avoid given the complex nature of the South China Sea dispute, with not only different immediate players, that is the coastal states, but plenty of other interested contenders, including the United States, Japan, India, and Russia. China’s document also refers to a UK-US Treaty, and while London has traditionally chosen a low profile posture in the region, it has recently been upgrading defense cooperation with Japan. Going back to Washington, the possible impact of past treaties and other diplomatic practice has already been considered important by observers in the case of Taiwan and the Senkaku/Diaoyu/Diaoyutai Islands, given Formosa’s change of status following the end of the Second World War and the American occupation of the Ryukyu Archipelago for three decades after its conclusion. However, the connection with the United States is much closer in the case of the Philippines, and Washington’s non-committal posture on sovereignty may come under increased pressure, although as mentioned this could result from different, even opposed motivations. 

Read the next installment here

Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here.

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He Who Defends Everything Defends Nothing

He who defends everything defends nothing: The Philippines, Scarborough Shoal, the South China Sea, and Sabah and the Sultanate of Sulu

By Alex Calvo

Introduction. The Philippines’ South China Sea strategy brings together rearmament, rapprochement with the US, tighter security and defense links with Japan, and an international arbitration case under UNCLOS, whose fate is still pending, with oral hearings on jurisdiction having taken place over the summer. Manila’s narrative and legal arguments concerning Bajo de Masinloc (Scarborough Shoal) are grounded on post-World War II developments. On 18 April 2012 the Philippines’ Department of Foreign Affairs stated that “The Philippines considers Bajo de Masinloc an integral part of Philippine territory on the basis of continuous, peaceful and exclusive exercise of effective occupation and effective jurisdiction over the shoal”, stressing this was not based on UNCLOS but “anchored on other principles of public international law”, and also underlining that it “is not premised on the cession by Spain of the Philippine archipelago to the United States under the Treaty of Paris”. While, alternatively, the Philippines may seek to resort to historical arguments from earlier eras, this may play into China’s hands, as noted by some observers. The offer to Malaysia to downgrade Filipino claims on Sabah in exchange for moves reinforcing Manila’s position in the international arbitration case under UNCLOS seems to confirm that the Philippines have indeed decided to focus on post-WWII arguments.

Alternatively, Manila may have sought to follow one of three routes to prove the past exercise of sovereign powers as the foundation for her territorial claims in the South China Sea. The first possible line of argument would involve proving that the Spratly were part of the Spanish Philippines, and were transferred to the US after the 1898 war. The second would be to claim that they were incorporated into the Philippines following their transfer to American sovereignty. Finally, a third approach would be to argue that they were part of the Sultanate of Sulu, thus linking the two claims.

The Spanish colonial era. Three international conventions regulate the geographical extent of the territorial transfer following the 1898 war: the Treaties of Paris and Washington between the US and Spain, and that concluded between the United States and Great Britain on 2 January 1930. A range of potential problems would loom large if Manila tried to resort to the geographical extent of this territory. First of all, the mentioned treaties do not provide a fully detailed picture of the resulting borders. Second, the actual reach of the colonial administration was not always clear, with widespread resistance to Spanish rule and insurgency in a number of areas. In line with many other colonies, actual control was often a measure of distance from the capital, and went from long-standing exercise of sovereign powers, resulting in widespread cultural, linguistic, legal, economic, and social, influence, to little more than nominal sovereignty (or suzerainty when indirect rule was favored) on paper. Third, geographical knowledge was not always accurate, with some territories imperfectly mapped or chartered, and confusion sometimes arising out of conflicting accounts. Having said that, some maps, like the one below, do explicitly include features currently under dispute, such as Bajo de Masinloc (Scarborough Shoal).

Spanish colonial era map of the Philippines, including Bajo de Masinloc / Scarborough Shoal. Kindly provided by Dr David Manzano Cosano, Escuela de Estudios Hispano-Americanos (CSIC; Spanish National Research Council)
“This map, from present-day Italy, included the Spratly in the Philippines’ territory”

Furthermore, some expeditions and other activities took place featuring Bajo de Masinloc (Scarborough Shoal). After a long history of uncertainty over its existence and location, the grounding of HMS Scarborough, chartered by the East India Company to transport tea, on 12 September 1748 led not only to its modern English-language name, but to its precise chartering. Navigation charts published after the incident reflected it, but uncertainty still meant some debate on exactly where the ship had run aground, and some decades would pass until this was dispelled. It was the Malaspina Expedition which in May 1792 finally ascertained the exact location of Scarborough Shoal, and confirmed that some reefs appearing on maps actually referred to this feature. This was followed, in 1800, by the first detailed Spanish survey, conducted by the frigate Santa Lucia, part of the Cavite-based naval squadron. Commanded by Captain Francisco Riquelme, she was one of the first steam-powered warships deployed in the Philippine Islands to take part in the campaigns against the Sultan of Sulu and the Moro slave-raiding pirate bands. Thus, this ship illustrates two aspects of Spanish colonial rule which to some extent are contradictory, supporting and weakening potential historical arguments in line with Philippine claims. On the one hand, it illustrates the connection between the Philippines and Scarborough Shoal, with activities from Luzon-based ships. On the other, it reflects how conflict with insurgents and pirates were a constant of the period, with sovereignty on paper extending further than on the ground (and the waters).

Frigate Santa Lucia, which commanded by Captain Francisco Riquelme conducted the first Spanish survey of Scarborough Shoal (Bajo de Masinloc) in 1800
Frigate Santa Lucia, which commanded by Captain Francisco Riquelme conducted the first Spanish survey of Scarborough Shoal (Bajo de Masinloc) in 1800

This low-lying reef, per Riquelme, extends more than 8 2/3 miles from North to South, and 9 1/2 miles from East to West from one end to the middle part, but from there narrowing until it ends in a tip. It is surrounded by horrible dangers that may appear without warning or other markings to serve notice of their proximity. Some rocks can be seen slightly above water only by close observation on a clear day, and only by having careful look-outs can one see the reef at a distance of 7 miles”Capitan Riquelme’s findings were incorporated into the “Dorroteo del Archipielago Filipino”, the Spanish pilot’s guide. An 1879 edition reads:

Spanish colonial authorities did not only incorporate details of Scarborough Shoal into their charts, but also began to exercise search and rescue jurisdiction over the shoal, sending ships from Manila to assist vessels in distress. Since this is one of the activities traditionally considered to fall under the umbrella of exercise of sovereign powers, it is worth noting.

Eastern half of the General Chart of the Pacific Ocean, published in 1897 by the Hydrography Section of the Spanish Navy.
Eastern half of the General Chart of the Pacific Ocean, published in 1897 by the Hydrography Section of the Spanish Navy.
Eastern half of the General Chart of the Pacific Ocean, published in 1897 by the Hydrography Section of the Spanish Navy.
Spanish colonial era map of the Philippines, including Bajo de Masinloc / Scarborough Shoal. Kindly provided by Dr David Manzano Cosano, Escuela de Estudios Hispano-Americanos (CSIC; Spanish National Research Council)

The Philippines under American sovereignty. A second possibility would be to argue that once under American sovereignty, currently disputed features clearly came to be officially considered part of Filipino territory. A significant obstacle to any such assertion is Washington’s long-held position that it takes no position on territorial disputes in the South China Sea, restricting its policy to how disputes are solved (insistence on peaceful solutions in accordance with international law) and the extent of any resulting settlement, with particular emphasis on freedom of navigation and overflight, and compliance with US views on the extent of coastal states powers in their EEZs. In December 2014 The Department of State published No 143 in its “Limits in the Seas” series, titled “China: Maritime Claims in the South China Sea”, which again emphasized that “The United States has repeatedly reaffirmed that it takes no position as to which country has sovereignty over the land features of the South China Sea”.

However, this view does not reflect the fact that the activities described earlier under Spanish colonial rule continued to take place after 1898. The most famous, and a well-documented, incident took place in 1913. A typhoon hit the S.S. Nippon, a Swedish steamer carrying copra, and she was wrecked on Scarborough shoal. This prompted Philippine authorities to intervene, together with private ships, in the rescue of the crew, investigate the accident, and carry out a scientific study on the effects of the sea on her cargo. In addition, the ship came under the salvage laws of the Philippines, and the resulting legal case was appealed all the way up to the Supreme Court of the Philippines, leaving behind an extensive paper trail documenting the exercise of a wide range of powers by the Philippine authorities in connection with Bajo de Masinloc (Scarborough Shoal).

The SS Nippon, owned by the Swedish East Asiatic Co., which shipwreck on Scarborough Shoal in 1913 led to a civil case that ended up before the Supreme Court of the Philippines
The SS Nippon, owned by the Swedish East Asiatic Co., which shipwreck on Scarborough Shoal in 1913 led to a civil case that ended up before the Supreme Court of the Philippines

In the 1930s, the Commonwealth Government sought an explicit assertion of sovereignty over Scarborough Shoal, going beyond the exercise of administrative powers, including search and rescue. On December 6, 1937, Mr. Wayne Coy (Office of the US High Commissioner for the Philippines) asked Captain Thomas Maher (head of the US Coast and Geodetic Survey) whether any country had claimed Scarborough Shoal. The reply, dated 10 December 1937, was that no information was available on whether any nation had. Concerning the Santa Lucia 1800 survey, Captain Maher said “If this survey would confer title on Spain or be a recognition of sovereignty, or claim for same without protest, the reef would apparently be considered as part of Spanish territory the transfer of which would be governed by the treaty of November 7, 1900”. He also suggested that a new survey take place, and a navigational light be installed.

The next year saw Mr. Jorge B. Vargas (secretary to the president) write to Mr. Coy, asking about the status of Scarborough Shoal and saying that “The Commonwealth Government may desire to claim title thereto should there be no objection on the part of the United States Government to such action”. This prompted Mr Coy to forward this correspondence to the US War Department, which in turn sent them to the State Department, resulting in an interesting exchange. For example in a letter dated 27 July 1938 Secretary of State Cordell Hull told Secretary of War Harry Woodring that his department “has no information in regard to the ownership of the shoal”, which “appears outside the limits of the Philippine archipelago as described in Article III of the American-Spanish Treaty of Paris of December 10, 1898”. However, Hull wrote, “in the absence of a valid claim by any other government, the shoal should be regarded as included among the islands ceded to the United States by the American-Spanish treaty of November 7, 1900” and therefore the State Department would not object to the Commonwealth Government’s proposal to study the possible setting up of air and ocean navigation aids, as long as “the Navy Department and the Department of Commerce, which are interested in air and ocean navigation in the Far East, are informed and have expressed no objection”. The reply from Acting Secretary of the Navy W.R. Furlong to Acting Secretary of War Louis Johnson was positive, both concerning navigation aids and “the possibility of later claiming title”. The secretary of commerce also said his department had no objections.

We can observe a measure of ambiguity, though, with the US Government having no objections to the Commonwealth Government claiming Scarborough, and even considering it to be included in the second treaty with Spain following the 1898 War, but not actually claiming the features itself. Manila also expressed an interest in the Spratly, but despite this prompting Washington chose to keep a “low profile” concerning the archipelago, with non-recognition of claims by others and a close eye on Japanese interests and activities going hand in hand with a failure to officially claim the islands. The same applied could be said about Scarborough Shoal. In the words of François-Xavier Bonnet (IRASEC; Research Institute on Contemporary Southeast Asia), “the geographical proximity spoke in favor of the Philippines (rescue operations). In a way, Bajo de Masinloc could be seen as integrated in the sphere of influence of the Philippines, but outside the main archipelago. Political and symbolic acts, like naming the shoal, surveying, mapmaking, and organizing rescue operations, were the only appropriate activities that the Spanish and American authorities could do on an isolated shoal, which was, for the most part, underwater during high tide”.

The Sultanate of Sulu. A third possibility for Manila would be to claim sovereignty over Bajo de Masinloc as having historically been under the Sultanate of Sulu, that is merging the claim with that over Sabah. However the Philippines seem to be leaning towards focusing on Scarborough, going as far as offering Malysia to downgrade her claim to Sabah in exchange for support on the former conflict. This was clear in one of the Filipino moves this year connected to the international arbitration case, namely the offer to Malaysia, in a Note Verbale, to review its protest against the 6 May 2009 joint Vietnamese-Malaysian submission to the UN Commission on the Limits of the Continental Shelf (CLCS), containing a claim by Kuala Lampur of an extended continental shelf (350 nautical miles from the baselines) projected from Sabah. In exchange for this, Manila is requesting two actions that she believes would reinforce her case against China: First, to “confirm” that the Malay claim of an extended continental shelf is “entirely from the mainland coast of Malaysia, and not from any of the maritime features in the Spratly islands”. Second, to confirm that Malaysia “does not claim entitlement to maritime areas beyond 12 nautical miles from any of the maritime features in the Spratly islands it claims”.

The impact on Manila’s Sabah claims has not been lost on observers, with former Philippine permanent representative to the United Nations Lauro Baja Jr., if Malaysia explaining that if the deal is accepted the Philippines’ claim to Sabah will be “prejudiced”, adding that “We are in effect withdrawing our objection to Malaysia’s claim of ownership to Sabah”. Some voices argue that the Philippines need to stop claiming Sabah, since otherwise they are favoring Chinese claims to South China Sea features. William M. Esposo has criticized the “charlatans and overnight Sabah claim experts” who “thought they were patriots fighting for Philippine national interest” but “didn’t even realize that the arguments they were mouthing were supporting China’s very claims to our territory in the South China Sea”. Esposo cites Renato de Castro (De La Salle University International Studies Department), to stress that “historic claims, such as the one we have with Sabah, are the weakest cases when international courts decide territorial dispute”.

Conclusions. The Philippines are basing their South China Sea narrative on post-Second World War developments, and going as far as appearing ready to sacrifice their claim to Sabah in order to reinforce the arguments put forward in their international arbitration case against Beijing. This fits with Washington’s agnostic view of territorial claims, even when they involve areas formerly under US sovereignty. However, it is still interesting from a historical perspective to examine other possible arguments of this nature that could support Filipino claims on Bajo de Masinloc (Scarborough Shoal).

Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean. Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here.