CO12072 | Scarborough Shoal: Flashpoint for Confrontation or Opportunity for Cooperation?

China asserts that Scarborough Shoal and its adjacent waters have been Chinese territory for generations and that it discovered the Shoal, incorporated it into its territory and exercised jurisdiction over it. Further, China also claims that the Shoal is included in the Zhongsha Islands, one of the four archipelagoes inside China’s infamous nine-dashed line map to which it has historic claims to sovereignty. China also argues that the Philippines never disputed Chinese jurisdiction until 1979.

There is some difficulty with China’s argument that it has sovereignty over Scarborough Shoal based on the inclusion of the Shoal within China’s historic claim to Zhongsha Islands, otherwise known as Macclesfield Bank. First, Scarborough Shoal is geographically a considerable distance from Macclesfield Bank. Second, under international law, Macclesfield Bank may not be capable of being subject to a claim of sovereignty because it is completely submerged. As claims to maritime zones can only be based from land or from islands, it would be difficult for China to argue that Scarborough Shoal falls within any maritime zone claimed from Macclesfield Bank.

A legal dispute could also arise on the status of the waters outside the 12 nm territorial sea of the Shoal. This would raise issues concerning the interpretation and application of Article 121 of UNCLOS on the regime of islands. UNCLOS provides that all islands are in principle entitled to maritime zones of their own, but paragraph 3 of Article 121 provides that “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf”.

The Philippines will maintain that the five tiny rocks on Scarborough Shoal are “rocks” within Article 121(3) and that they are not entitled to an EEZ or continental shelf of their own. Consequently, the waters beyond the 12 nm limit are within its EEZ measured from its main archipelago. China could challenge this position by arguing that one or more of the rocks on the Shoal are entitled to an EEZ and continental shelf.

Two possible options

The recent flare-up is not the first time that the sovereignty dispute over Scarborough Shoal has arisen between the two States. A similar incident occurred in the mid-1990s which also involved fishing vessels and diplomatic exchanges between the two Governments. This resulted in the negotiation of a bilateral code of conduct in 1995 in which the two States promised to settle their bilateral disputes in accordance with recognised principles of international law, including UNCLOS. This in turn prompted the negotiation of the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea.

There are at least two possible options on how potential conflicts between China and the Philippines over Scarborough Shoal can be managed. Both require that the two States first agree (at least informally) that sovereignty over the Shoal and the 12 nm territorial sea around it are in dispute. They can do this without acknowledging the legitimacy of the other’s claim and without prejudice to their own claim.

The first option is for the two States to agree to refer the territorial sovereignty dispute to an international court or tribunal and ask them to decide which State has the better claim to sovereignty. This was done by Malaysia and Indonesia over Sipidan-Ligitan and by Singapore and Malaysia over Pedra Branca/Pulau Batu Puteh. In both cases the States agreed to refer the sovereignty disputes to the International Court of Justice.

The second option is for the two States to agree to set aside the sovereignty dispute and jointly manage the fisheries in the disputed area. They could either declare a fishing moratorium in the disputed area or agree to a total annual catch for each States’ nationals. Each State could agree to regulate its own nationals, and focal points and hotlines could be established to enable patrol vessels to immediately report any activities contrary to the arrangement.

If such a cooperative arrangement could be negotiated for the disputed area around Scarborough Shoal it could serve as a model for cooperative arrangements in the other disputed areas in the South China Sea.

About the Author

Robert Beckman is Director, Centre for International Law and Associate Professor at the Faculty of Law, National University of Singapore as well as an Adjunct Senior Fellow at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University.