The Scarborough Shoal dispute: Legal issues and implications

Author:
Huy Duong
Date:
Monday, June 18, 2012
Synopsis
The dispute between China and the Philippines over the Scarborough Shoal area has until
recently been a neglected sideshow in the South China Sea. However, if the Philippines
goes to ITLOS or an Annex VII Arbitration Tribunal under UNCLOS to defend its sovereign
rights, there might be important implications for any attempt to interpret Chinas Ushaped line as a maritime claim.
Commentary
The tension between China and the Philippines over the Scarborough Shoal has turned the
spotlight on a dispute that has until recently been a neglected side show. What is the
dispute about and how can it be settled? The dispute between China and the Philippines
over Scarborough Shoal consists of two legal parts, each affecting a distinct geographical
area.
The first part is the sovereignty dispute over the five rocks in the shoal that are above high
tide and their 12 nautical-mile territorial sea. The second part of the dispute is over
sovereign rights in the EEZ beyond 12 nm from the rocks. The area affected is potentially
ten times that affected by the sovereignty dispute.
There is also an ambiguity about what Chinas U-shaped line in the South China Sea
represents. Is it a claim only to the islands, to maritime space based on historic rights or
on EEZ arguments? This article will look at the implication of the two disputes on the Ushaped line.
The sovereignty dispute
The Philippines claims that the historic evidence for its sovereignty includes the planting of
a flag pole in 1965; the building and operation of a small lighthouse in 1965, which was
rehabilitated by the Philippine Navy in 1992; and the use of Scarborough Shoal as an
impact range by US and Philippine forces stationed at Subic Bay. However, the lighthouse
is not currently operational. How continuously did the Philippines operate it? Was the use
of Scarborough Shoal as an impact range an actual display of sovereignty over territory
and the territorial sea, or was it no more than a military activity that is permissible in
international waters or in the EEZ? China claims that in 1935, Chinas Map Verification
Committee declared sovereignty over 132 islands, reef and shoals in the South China Sea,
when Scarborough Shoal was listed as a part of what China today calls Zhongsha Islands.
Chinese authors argue that, since China considers Scarborough Shoal to be a part of
Zhongsha, when China declared sovereignty over Zhongsha in 1951 this declaration
implicitly included Scarborough Shoal.

Interestingly, in 1932 the Legation of the Chinese Republic in France had sent a Note to
the French Ministry of Foreign Affairs asserting that according to Chinas Map Verification
Committee the Paracels form the
southernmost part of Chinese territory.
On Chinese maps, the label "Zhongsha" only appears over Macclesfield Bank, not
Scarborough Shoal. Internationally Scarborough Shoal is regarded as being separate from
Macclesfield Bank. It would seem that for
China's declaration of sovereignty over Zhongsha to be taken as also including
Scarborough Shoal, the onus was on China to specifically mention that its claim to
Zhongsha also included Scarborough Shoal.
Although both sides arguments for sovereignty seem to have weaknesses, neither is likely
to abandon its sovereignty claim. Therefore, the only complete solution for the sovereignty
dispute is third party adjudication or arbitration. Given that the Philippines and China are
not willing to seek third party arbitration for the sovereign dispute, the best temporary
solution is for the two countries to set aside the sovereignty dispute over the five rocks
and share the resources of the 12 nautical mile territorial sea in some way. The five rocks
themselves are economically worthless and their combined territorial sea only amounts to
2260 square nautical miles at maximum; therefore sharing the resources would not be
significantly detrimental even to the side that in fact has sovereignty.
Since the Philippines is weaker on the ground, it may well accept equal sharing of the
resources of the territorial sea, while China might wish for sharing of the EEZ beyond the
territorial sea.
The dispute over sovereign rights
The second part of the dispute is over the sovereign rights in the EEZ beyond 12 nautical
miles from the rocks. The area that it affects is potentially tens of times as large as that
affected by the sovereignty dispute.
The Philippines contends that the rocks at Scarborough Shoal fall under Article 121(3) of
UNCLOS and are not entitled to EEZ or continental shelf, therefore the EEZ beyond 12
nautical miles from them belongs to Luzon Island, regardless of the question of
sovereignty over them. Above high tide level, these rocks are but a few dozen square
meters in area, and it is hard to imagine that they can sustain human habitation or
economic life of their own.
The Philippines stated aim is to seek a ruling from either ITLOS or an Annex VII Arbitration
Tribunal under UNCLOS confirming that the rocks at Scarborough Shoal fall under Article
121(3) and are therefore not entitled to an EEZ. It is unlikely that the Philippines is seeking
from ITLOS a ruling on the question of sovereignty, contrary to what Chinas Ministry of
Foreign Affairs assumes. The latter dismissed the Philippines statements about going to
ITLOS, on the ground that ITLOS is not the forum for resolving sovereignty disputes. China
also prefers to use terms such as sovereignty and historical rights for the dispute as a
whole.
It is likely that China will accept joint development in the EEZ beyond 12 nautical miles
consistent with its longstanding principle of setting aside dispute and pursuing joint

development. In the past, the Philippines has stated that it is prepared to share resources
in the disputed areas, but not in areas which it considers to belong to it outright. However,
unless the Philippines manages to obtain a ruling that the rocks at Scarborough Shoal are
not entitled to an EEZ, it might have little choice but to yield to Chinas pressure and
accept joint development in parts of its EEZ, off Luzon Island.
Potential implication for Chinas U-shaped line
Of the three disputed groups of features in the South China Sea, namely, the Paracels,
Scarborough Shoal and the Spratlys, Scarborough Shoals features have the highest
likelihood of being classified as rocks under Article 121(3). Although the Philippines cannot
take the question of Are the rocks at Scarborough Shoal under Article 121(3)? to ITLOS
without Chinas consent, it can unilaterally take this question to an Annex VII Arbitration
Tribunal where it has a good chance of obtaining an affirmative answer. With regard to the
ambiguity as to whether Chinas U-shaped line is a claim only to the islands, or a claim to
maritime space based on historic rights, or a claim to maritime space based on EEZ
arguments, if the Philippines manages to obtain a ruling that the rocks at Scarborough
Shoal are not entitled to EEZ then the
third possibility will be ruled out for this area. That will be a significant step in narrowing
down the possible meanings of the U-shaped line.
I. CASE BACKGROUND
Abstract
Conflict in the South China Sea is not a new phenomenon. In fact, the area has experienced conflict for
centuries . Most of the disputes have involved nations claiming islands or surrounding waters as part of
their sovereign areas, primarily the Spratlys and the Paracels. More recently, some areas in the South
China Sea, such as the Scarborough Shoal an area that barely consists of land and is mostly made
up of uninhabited rocky outcrops, atolls, sandbanks, and reefs ("Q&A" 2012), have been the center of
controversy. The reason this particular section of the pacific ocean is valuable to so many different
states is because of the rich resources that are found there including: oil, natural gas, minerals, and
fish. Over the decades, six countries have competed for rights over the area including China,
Philippines, Brunei, Malaysia, Vietnam, and Taiwan ("Q&A" 2012). But today China and the Philippines
are the nations contending for control over the prized fishing grounds found in the Scarborough Shoal.
However, these prized fisheries are in danger of disappearing as the effects of the climate change
continue to progress in the Scarborough Shoal. In addition, China and the Philippines economies and
peoples' livlihoods depend on the fisheries, thus if they are depleted by climate change driving the fish
populations poleward the chance of conflict eruptuing might become a reality.
Description
The current conflict in the Scarborough Shoal is primarily between the Philippines and China, although
in the past, several Southeast Asain nations have struggled for control over the various hotspots of the
South China Sea. The Scarborough Shoal is an area that barely consists of land and is mostly made up
of uninhabited rocky outcrops, atolls, sandbanks, and reefs" ("Q&A" 2012). The Philippines and China
are both dependent upon the fisheries in the South China Sea, specifically in the Scarborough Shoal,
for the economic development and livlihood of their people.

Historical Context
China claims to have been active in the area for over 2,000 years (Lague 2012). Historically, China has
explored the area of the South China Sea since 960 AD during the Song Dynasty. However, the first
map published by the Chinese government that included the South China Sea as part of China,
appeared in 1947 (Lague 2012). In 2009 China submitted a map to the United Nations that depicted a
9-dash line showing its territory in the South China Sea. The 9-dash line, which includes the
Scarborough shoal and crosses into the Philippines EEZ, has become very controversial (Xu 2013).
The different territorial claims are demonstrated in the graphic to the right. Since the landmasses in the
south china sea are too small to support a native population, the surrounding nations including China
and the Philippines have competed for sovereignty rights. The waters around these small islands and
protruding rocks are also controversial despite some countries exclusive economic zones. The
UNCLOS states that a sovereign nation has claim over the waters reaching 200 miles off the coast.
Under UNCLOS, China is intruding into the Philippines' sovereign waters. Nations may not, however,
claim small rocks or "coral projections" as territory under Article 121 (3) of UNCLOS (Mabasa 2013).
Economic, Political, and Societal Context
UNCLOS Article 121 declared official sovereign boundaries and international waters in the South China
Sea in 1994. But countries like China disregard these international laws. The Philippines and China use
tactics like fishing bans, standoffs, and arresting fishermen who they believe are acting illegally as ways
to demonstrate their presence in the Scarborough Shoal. It is ironic because the Philippines and China
attempt to turn these boasts into conservation cries. There have been reports of increase militarization
the countries surrounding the South China Sea as smaller nations like the Philippines try to balance
Chinas overwhelming presence. Since 2011 the Philippines has begun to modernize its military and
has double its defense budget (Xu 2013).
In January 2013 the Philippines annouced they would be taking China to the International Tribunal for
the Law of the Sea in order to pursue international mediation through the Untied Nations Convention on
Law of the Sea. Thus far, the Chinese government has remained silent along with the rest of the world.
One reason why no other nations are backing the Philippines is because they do not want to further
isolate China by bullying it to cooperate. Furthermore,other ASEAN nations hope that they can reach a
negotiation with China to resolve disputes in the South China Sea in the future (Medcalf).
The growing Chinese and Filipino demand for fish comes at a time when 87% of the worlds fisheries
are at full exploitation, overexploited, or depleted, according to the United Nations Food and
Agriculture Organization (Mohindru and Yap 2012). Filipino demand for fish in 2010 was estimated at
2.9 MT, however with the nations growing population, demand is expected to increase to 4.2 million MT
by 2020 (OneOcean). Fish comprise the Philippines third largest food group and was the second
highest portion of spending by families (Dacul 2010). The average Filipino consumes 98.6 grams of fish
every year (NSCB). Without fish, 89 million citizens would be without half of their proper protein
requirement. The fishing industry in the Philippines employs 5% of the total labor force and produces 24% on the nations GDP (Tacio 2011).
Being the largest exporter and importer of fish, Chinas demand for more access to fisheries is huge.
China is expected to produce upwards to 60 million tons of seafood in 2015. Some are skeptical thats
this number may be actually higher than China would like to admit. By 2020, seafood imports are
predicted double from 8 billion to 20 billion. China is also investing in new commercial fishing

equipment and hopes to have 2,300 fishing vessels by 2015. To put this number of ships in to
persepctive, the United States only has 200 distant-waters fishing ships (Mohindru and Yap 2012).
With nearly half a billion people residing within 100 miles of the South China Sea, rising demands have
placed pressure on the quickly urbanizing coastal cities. Desperate for more resources, tensions are
becoming high as more communities access the resources found in the Scarborough Shoal (Xu, 2013).
The fisheries are more exploited than ever by China and the Philippines. In addition to over fishing,
climate change is driving fish out of the Scarborough shoal in to water further south in search of cooler
waters. This is placing additional stress on the competing nations. The decreasing fish stocks are
driving some fishermen away from their coastlines into more heavily disputed areas of the sea (Xu,
2013).
Countries in Asia depend heavily on fishing and other sectors of the economy that are sensitive to
climate change (FAO, 2011).Conflict may appear in areas like the Philippines and China because these
states have a high dependency on the fisheries sector as well as low capacity to adapt to the
impacts of climate change [and] will be most at risk of serious socio-economic implications" (FAO, 201).
Foreign Policy magazine deems China to be not only the biggest exporter of fish but also the nation
that consumes the most fish (Kleine-Ahlbrandt). Because the Philippines and China heavily depend on
fishing, these countries have already depleted fish stocks closer to their shores forcing fishing vessels
to enter further into the South China Sea, most importantly the Scarborough Shoal, causing conflict to
rise over who has the right to fish in the area. It is believed that the Chinese government forces its
fishermen to upgrade and equip their boats with satellite navigations systems, allowing them range
even-further from home and if the vessels do not comply with these rules the government will not grant
to fishermen licenses (Kleine-Ahlbrandt).

Duration 2012 - Present

China has claimed the area as its territory since 960 AD. However China's historical claims go against
UNCLOS' set boundaries that it began enforcing in 1994 (Xu 2013).The most recent conflict between
the two nations occurred in April 2012 when the largest Filipino naval vessel discovered Chinese fishing
boats collecting illegal marine life from the Shoal including corals, giant clams, and live sharks
(CNN).However, the situation became more heated when two Chinese surveillance ships maneuvered
themselves between the Filipino naval ship and other Chinese fishing boats to prevent the Filipino navy
from taking action (McGeown 2012).The two states were at a standoff for nearly two months until a
typhoon forced the ships to retreat.

Location
The Scarborough Shoal is located in the eastern area of the South China Sea. Its exact coordinates are
15.1167 N, 117.8500 E. As the maps indicate, the Scarborugh Shoal is much closer the Philippines'
shore compared to China's shore.
Figure 5.

Actors
Direct
China: Claims almost the entire region as its own based on historical explorations.
The Philippines: Parts of the Scarborugh Shoal fall into its EEZ and under UNCLOS these areas are
the Philippines sovereign waters.
Indirect
The United States: There is a chance the US will be brought into this conflict if it continues to escalate
based on the the 1951 Mutual Defense Treaty between the US and the Philippines.
Other ASEAN nations.

II. Environment Aspects

Figure 7. Photographer: C. Ortiz Rojas

Type of Environmental Problem

(A) Climate Change
1. Chaning water Temperatures
2. Lower Oxygen Levels
3. Food Chain Disruption
4. Altered Migration Patterns
(B) Over Fishing
1. Chinese and Filipino Demand
There are instances where climate change has contributed to fish migrating to areas of the ocean that
are not in their historical migration patterns. It is believed that as climate change continues to affect the
Earth, fish populations will migrate towards the Poles in search of cooler waters(Roger, 2011). Over the
past century, climate change has raised ocean temperatures 0.18F, affecting marine life from the
surface of the water to as far deep as 700 meters (NatGeo). The IPCC argues sea temperatures will
continue to rise throughout the 21st century. A report that highlights the situation near Australias waters
declares that climate change affects have the capability to contribute to the forced migration of
seaweeds, phytoplankton, zooplankton, and fish" (Wroe, 2012).The same report insist that fishing

habits will need to change but that the human population will have little to no control over the fate of
microbes and plankton, both of which are vital organisms in the oceanic food chain (Wroe). Additional
consequences of climate change and ocean water temperature rise include more cases of diseases,
parasites, algal blooms, shifts in the balances between predators and invasive species, a decrease in
the presence of dissolved oxygen in the water, and destruction to fish breeding grounds such as coral
reefs (FAO 2011). Another implication that warmer waters pose to fisheries is a decrease in the average
size of a fish as a result of less oxygen in the ocean. When water warms, it becomes lighter at the
same time. Lighter water prevents oxygen from reaching deeper waters. Over 600 different fish
species weight could decline 14-24% by 2050. Fish in the Indian Ocean will unfortunately be on the
higher end of estimates. The decline in weight will have consequences for ecosystems, food chains,
and supply of protein for humans (Doyle 2012).
The fisheries in the Scarborough Shoal are already vulnerable to over fishing by China and the
Philippines. But the effects of climate change in the area have the potential to exacerbate these
fisheries and move them pole ward. As previously mentioned, the marine fish populations in the poles
will increase substantially while fish populations near the equator will decline. One of the UNs six
climate scenario argues climate change will increase global temperatures by 3.6 to 9.7F by 2100.
Based on these temperature increases, fish populations will migrate towards the poles at a rate of 17.122.6 miles per decade till 2050 (Doyle 2012). The gradual disappearance of fisheries in the
Scarborough Shoal could spur conflict, a potentially violent one, between China and the Philippines. It
is predicted that fishing communities will see changes to pelagic species or fish that live near the
surface of the water first as they seek colder waters. Other fish species migrations will be affected by
climate change as well. These include: changes in temperature and salinity, reduced surface water
density and nutrients, increase vertical stratification and acidity, coral reef degradation and ecosystem
depletion, and predator- prey relationships will be altered. Communities, like those in China and the
Philippines, whose livelihoods strongly depend on the fisheries will experience increased stress and
tensions as fish stocks in the region decline (Food and Agriculture Organization of the UN).

Type of Habitat: Tropical

The shoal is shaped like an atoll and consist of rocks, corals, and very small uninhabitable islands.

Figure 8.

Act and Harm Sites:

Act Site - China and the Philippines fishing in the same waters (Scarborough Shoal) where the
fisheries are being depleted by climate change and overfishing.
Harm Site - Scarborugh Shoal

III. Conflict Aspects

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Figure 9. United States Navy, Photographer's Mate 2nd Class Nathanael T.
Miller ------------------------------------------------------- Figure 10. United States Navy, Chief Mass
Communication Specialist Ty Swartz

Type of Conflict
The conflict is international. No single country has jurisdiction over the entire South China Sea
excluding the EEZs. Between the six disputing nations, China and the Philippines have had the most
intense encounters in the Scarborough Shoal.

Level of Conflict
Medium The most recent conflict between the Philippines and China was a standoff in the
Scarborough Shoal that lasted two months in the Spring of 2012.

Fatality Level of Dispute (military and civilian fatalities)

Low Thus far in the conflict there have been zero causalities. While tension and threats persist, no
threat of violence is currently visible.

IV. Environment and Conflict Overlap

Environment-Conflict Link and Dynamics:

The diagram above is depicting the casuses and effects of the ongoing conflict in the Scarborough
Shoal and cliamte Change's role. Moving from left to right, climate change is having a negative impact
in the Scarborough Shoal. Climate change is raising the ocean waters temperature, altering the
salinity, reducing the water density and nutrients, and increasing vertical stratification and the acidity
levels. All of these changes, while they may seem insignificant, are having damaging effects on the
ecosystems natural cycles, coral reefs, and predator-prey relationships. Most of all, the fisheries will
move further south away from the Scarborough Shoal and towards the poles. A reduced fish population
is represented by climate changes negative relationship with the fish circle in the middle of the
diagram. In addition, because the Scarborough Shoals natural ecosystem is being negatively affected
by climate change and will no longer be able to support fisheries, the Scarborough Shoal also has a
negative impact on the fish.
On right of the diagram is the other half of this issue the Chinese and Filipino demand for fish from
the Scarborough Shoal. Rising populations in both nations will increase the pressure that is already
placed on the fisheries. Therefore the Chinese and Filipino demand has a negative relationship with the
fish. As previously mentioned, China in particular is investing a lot of money into developing more
advanced fishing vessels and technology. An increase in the Chinese and Filipino demand will create
the need for better fishing technology. Thus there is a positive relationship between the two variables.
However with more advanced fishing technology comes and increase in the deaths of fish. Lastly, a
vital part of this equation is the need for new international policy in the Scarborough Shoal and more
broadly speaking the entire South China Sea. Although there are policies in place already they are
knowingly not accepted by all countries involved, namely China. Hence the relationship between rising
demands for fish and new policy to regulate these demands is positive.

Level of Strategic Interest

Medium This conflict has immense implications for all ASEAN nations because of their proximity to
the location and also because of their relationships with both China and the Philippines. In addition, the
conflict in the Scarborough Shoal is of interest to the United States. The US has a mutual defense
treaty with the Philippines that promises their help if conflict between the Philippines and any other
nations becomes violent. However the US is working hard to building a successful relationship with
China and does not want to offend or further isolate China by coming to the Philippines defense.

Outcome of Dispute:
The Dispute remains unresolved. As of January 2013, the Philippines is utilizing the International
Tribunal for the Law of the Sea in order to pursue international mediation through the Untied Nations
Convention on Law of the Sea to solve its conflict with China. There are some still some unknowns of
the case. If the dispute is not resolved through international mediation will the Philippines ask the US
for support? Additionally, if the the fisheries continue to migrate poleward at a rate of 17.1-22.6
miles per decade till 2050, will China and the Philippines follow the fish out of the Scarborough Shoal

south towards Australia? China has already depleted its fisheries near its coasts and has moved further
away in search of more fish, what will stop it from leaving the South China Sea?