DFA spokesperson Raul Hernandez. INQUIRER FILE PHOTO
MANILA, Philippines — A distortion of facts?
The spokesperson of the Department of Foreign Affairs (DFA) has disputed a report posted on the website of the Chinese Embassy in Makati City, claiming both the Philippines and China agree that the United Nations Convention on the Law of the Sea (UNCLOS) “can not be utilized as a legal ground to claim territorial sovereignty.”
“Therefore, the fact that Huangyan Island (Scarborough Shoal) is within the 200 nautical miles Exclusive Economic Zone or continental shelf of Luzon Island has no relevance in determining sovereignty either,” said the same report titled “The Standoff between Beijing and Manila around the Huangyan Island: Who owns the shoal?”
The report was written by Gao Jianjun, international law professor at the China University of Political Science and Law in Beijing.
The Philippines refers to the West Philippine Sea rock formation as Bajo de Masinloc and Panatag Shoal.
In a text message to the Philippine Daily Inquirer, Raul Hernandez clarified on Sunday that “under UNCLOS, the Philippines exercises exclusive sovereign rights over its Exclusive Economic Zone (EEZ) and continental shelf.”
Contrary to Beijing’s claims, “the Bajo de Masinloc is an integral part of Philippine territory. It is located 124 nautical miles west of Zambales.”
“The Philippines exercises full sovereignty and effective jurisdiction over the rock features of the Bajo de Masinloc. It is also well within the 200-nautical mile EEZ and continental shelf of the Philippines as provided under UNCLOS,” Hernandez asserted.
Some DFA insiders have assailed Gao’s report as an alleged “distortion of facts,” adding the Chinese embassy was “at it again.”
Last month, the foreign office temporarily stopped diplomatic meetings with the embassy, citing the inaccuracy of information being relayed by the mission to the Chinese capital.
The DFA had accused Chinese Ambassador Ma Keqing of wrongfully conveying a non-existent agreement of a pullout of all vessels in the Scarborough Shoal area.
Hernandez clarified that Manila and Beijing diplomatic officials agreed to refrain from doing anything that would increase the tension in the disputed area.
He emphasized that “whatever was discussed or agreed upon should be reported to Beijing factually…We want the Chinese embassy to convey the actual agreements or non-agreements undertaken in Manila.”
Foreign Affairs Secretary Albert del Rosario earlier said the inaccuracy of information being relayed to China would somehow trigger different protocol.
The DFA head recalled that during the third meeting with the Chinese side, Ma informed the foreign office that Beijing was becoming more assertive because Manila violated an agreement.”
“I said…there was no agreement that’s why we are on a stalemate. They are harping that we don’t honor an agreement. I felt I should clarify that with the Chinese government, it seems that report was not accurate,” Del Rosario told a recent DFA press briefing.
In his report, Gao noted that “since 1997, the Philippine side has disputed China’s sovereignty over the Huangyan Island … It is interesting to note that both sides agree that geographical proximity is not a mode of acquiring territory under international law. Thus, the fact that Huangyan Island is closer to the Philippines than China has no consequence for the settlement of the dispute.”
“According to Beijing, the basis of its sovereignty over Huangyan Island is “It is China that first discovered this island, gave it the name, incorporated it into its territory and exercises jurisdiction over it,” while Manila asserts that “the Philippines has exercised both effective occupation and effective jurisdiction over Bajo de Masinloc since its independence.” Thus, both sides take the occupation of terra nullius as the legal basis of their claim to the island in question,” he said.
Gao claimed that “as a mode of acquiring territory, occupation is often preceded by discovery, so it is appropriate to begin with the question which party discovered and named the relevant territory, and then to see whether the discovering state has exercised effective control to establish its title.”
“In this respect, it seems undisputable that Huangyan Island was discovered by China as early as in the Yuan Dynasty (1271-1368 AC),” he said.
Gao pointed out that “all the official maps published by the Chinese governments of different periods marked Huangyan Island as Chinese territory.”
“These maps and laws not only demonstrate the intention of China to claim the sovereignty of Huangyan Island, but also constitute part of the open, continuous, peaceful and effective jurisdiction exercised by China over the island, Besides, many scientific expedition activities, authorized or endorsed by Chinese authorities, were held on the island, as well as in its surrounding seas,” he said.
He recalled that “a Philippine flag was erected on the island by two Philippine congressmen in 1997, and the baseline around the Huangyan Island was delineated in 2009.”
“However, these activities were undertaken after the Philippines had challenged the Chinese sovereignty over Huangyan Island and for the purpose of improving the legal position of Manila. According to the relevant jurisprudence of the international tribunals, such activities should not be taken into consideration in the determination of a territorial dispute,” said Gao.
He added, “what is more important, one major obstacle for Manila to claim the Huangyan Island is the island has always been considered to be outside the territorial limits of the Philippines…It is quite plausible to argue that China had established its original title to the Huangyan Island under the relevant rules of international law.”
Citing the DFA’s comprehensive “overall plan” in promoting national security, Del Rosario earlier expressed confidence the Philippines could settle peacefully its Scarborough Shoal dispute with China, as well as other West Philippine Sea-related issues.
He said they had broken up the overall plan into diplomatic or political, legal and defense tracks.
For the diplomatic track, he said the country would continue to push for the transformation of the West Philippine Sea into a Zone of Peace, Freedom, Friendship and Cooperation (ZoPFFC)
Under ZoPFFC, Manila would observe a rules-based approach to all disputes in accordance with UNCLOS according to Del Rosario.
For the legal track, the DFA plans to coordinate with other concerned government agencies as it resorts to dispute settlement mechanisms under Unclos.
For the defense track, Del Rosario said the foreign office committed to help improve national defense by building a minimum credible defense posture to protect the country’s territorial sovereignty with some help from the United States, Japan, South Korea, and Australia, among other Philippine allies.