Are you going to Scarborough Shoal?

As Arbitral Tribunal recognizes the talakitok, tanguinge & bonito 

By Dr. Alfredo C. Robles Jr / raissarobles.com/ July 16, 2016

The Arbitral Tribunal’s decisions on the nine-dash line and the entitlements of various features in the South China Sea will probably sound abstruse, abstract and far-removed to many Filipinos.

Allow me to explain how the decision on Submission 10 (of the Philippine government) has concrete consequences for particular local fishing communities. In that Submission, the Philippines had argued that “China has unlawfully prevented Philippine fishermen from pursuing their livelihoods by interfering with traditional fishing activities at Scarborough Shoal”.

The Tribunal agreed with the Philippines and said it:

[1203.B] (11) FINDS that Scarborough Shoal has been a traditional fishing ground for fishermen of many nationalities and DECLARES that China has, through the operation of its official vessels at Scarborough Shoal from May 2012 onwards, unlawfully prevented fishermen from the Philippines from engaging in traditional fishing at Scarborough Shoal (Award, p. 474; p. 496 of the file, paragraph 1203.B(11).

This piece summarizes the portions of the Award that discuss Submission 10 (pp. 299-318, pp. 321-40 of the file, paragraphs 758-814).

I first trace the origins of the dispute before examining the opposing Philippine and Chinese positions on fishing in Scarborough Shoal’s territorial sea, which stem from the differences between traditional fishing rights and historic rights. Finally, I explain the Tribunal’s reasoning, which is based on the notion of “vested rights”.

Two other decisions of the Tribunal are relevant to fishing in Scarborough Shoal’s waters, but since the reasoning underlying them is different, I will just summarize them here.

The Tribunal also declared that Scarborough Shoal was a rock – not a rock as geology understands it, but a rock as defined by (“within the meaning of”) Article 121(3) the United Nations Convention on the Law of the Sea (“Régime of Islands”) (all in boldface mine):

[1203.B] (6) …Scarborough Shoal, Gaven Reef (North), McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef, in their natural condition, are rocks that cannot sustain human habitation or economic life of their own, within the meaning of Article 121(3) of the Convention and accordingly that Scarborough Shoal, Gaven Reef (North), McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef generate no entitlement to an exclusive economic zone or continental shelf;

Since Scarborough Shoal is a “rock”, as defined by Article 121(3) of the Convention, it is not entitled to either a 200-nautical-mile Exclusive Economic Zone (EEC) or a 200-nautical-mile continental shelf. A nautical mile, which is not defined in the Law of the Sea Convention, is equivalent to 1,852 meters or 6,076.115 feet, corresponding to 60 nautical miles per degree of latitude(George K. Walker, Definitions for the Law of the Sea: Terms Not Defined by the Convention [Leiden: Martinus Nijhoff Publishers, 2012], p. 52).

In passing, we should note that some sketches circulating in the press are misleading, to put it politely. They give the impression that the 200 nautical miles of both the EEZ and continental shelf are measured from the outer limit of the territorial sea at 12 nautical miles and that consequently, the 200 nautical miles are added to the 12 nautical miles. On the contrary, the 200 nautical miles are measured from the same baselines from which the 12-nautical-mile territorial sea is measured. The baseline is defined by the International Hydrographic Organization as “the line from which the outer limits of the territorial sea and certain other outer limits are measured” (International Hydrographic Organization, Hydrographic Dictionary, Part 1, Volume 1, English [Monaco: International Hydrographic Dictionary, 1994], p. 22). That this interpretation is correct is (or should be) clear to anyone who takes the trouble to read Article 57 of the Law of the Sea Convention:

Article 57
Breadth of the exclusive economic zone
The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

If Scarborough Shoal had been entitled to an EEZ, the nationals of the state enjoying sovereignty over it would have had the exclusive right to fish in the EEZ, up to 200 nautical miles. China’s claim to sovereignty would have justified it in excluding Filipino fishermen from fishing in any alleged EEZ of Scarborough Shoal.

In view of the Tribunal’s declaration that Scarborough Shoal is a rock, which is entitled only to a territorial sea, the sole remaining issue is whether Filipinos and nationals of immediately adjacent coastal States enjoy the right to fish in the 12-mile territorial sea of Scarborough Shoal.

The Tribunal’s conclusion on the operation of Chinese law enforcement vessels is also important for Filipino fishermen. The Tribunal –

[1203.B] (15) FINDS, with respect to the operation of Chinese law enforcement vessels in the vicinity of Scarborough Shoal:
a. that China’s operation of its law enforcement vessels on 28 April 2012 and 26 May 2012 created serious risk of collision and danger to Philippine ships and personnel; and
b. that China’s operation of its law enforcement vessels on 28 April 2012 and 26 May 2012 violated Rules 2, 6, 7, 8, 15, and 16 of the Convention on the
International Regulations for Preventing Collisions at Sea, 1972; and
DECLARES that China has breached its obligations under Article 94 of the
Convention [.]

Chinese patrol ships protect fishing by Chinese nationals. They harass not just Filipino fishermen but even the Filipino ships that are patrolling the waters around Scarborough Shoal. The Tribunal thus declared that the way that they conduct their operations is illegal under the Convention. If, by some miracle, Chinese patrol ships were to stop their dangerous behavior, Filipino fishermen would be able to resume their fishing and Filipino patrol ships would be able to prevent Chinese fishing of endangered and threatened species… Read more…

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