RA 9522: Bajo de Masinloc

Chinese ‘occupation’ of Bajo de Masinloc could reduce PH territorial waters by 38 percent

by Ellen Tordesillas, VERA Files

The Philippines is at a loss over China’s declaration its ships will stay permanently in Bajo de Masinloc, a declaration some experts say could lead to the Philippines losing 38 percent of its territorial waters.

Bajo de Masinloc, a triangular-shaped coral reef formation that has several rocks encircling a lagoon, is located 124 nautical miles west of Masinloc town in Zambales in the northwestern part of the Philippines.

“The shoal is under virtual occupation by China,” said former foreign undersecretary and former Philippine Permanent Representative to the United Nations Lauro Baja.

Foreign Secretary Albert del Rosario confirmed this, saying, “In a subministerial consultation, Chinese Vice Foreign Minister Fu Ying had said to our people that China’s presence was permanent and they had no intention of withdrawing their ships from the vicinity of Bajo de Masinloc.”

The National Mapping and Resource Information Authority (NAMRIA) says Bajo de Masinloc has an area of about 120 square kilometers. It is also referred to as Panatag (calm in Pilipino) by fishermen who seek refuge in the area during stormy weather.

Its international name is Scarborough shoal after the tea-carrying British boat Scarborough which sank in the vicinity in 1784. China also claims ownership of the shoal which is 467 nautical miles away from its mainland, and refers to it as Huangyan Island.

Republic Act 9522, which defines the country’s archipelagic baseline, includes Bajo de Masinloc as part of Philippine territory. The law classifies it as a regime of islands under Art. 121 of the Law of the Sea Convention (LOSC), which means it generates its own territorial sea, exclusive economic zone (EEZ) and continental shelf.

Under UNCLOS, “an island is a naturally formed area of land, surrounded by water, which is above water at high tide.”

An island generates its own maritime regimes, which are 12 nautical miles (nm) for territorial sea, 24 nm for contiguous zone, 200 nm for EEZ and 200 nm continental shelf.

Under this definition, the Chinese claim over Baja de Masinloc means the Philippines risks losing not only the 120-square-kilometer strategically vital reef formation but also some 494,000 square kilometers EEZ, representing 38 per cent of the country’s EEZ.

One of the Philippines’ options to protest the Chinese encroachment is going to the United Nations International Tribunal on the Law of the Sea (ITLOS), the arbitration arm of UNCLOS, of which the Philippines and China are signatories.

Legal experts say the Philippines can ask the ITLOS, which does not deal with territorial disputes, to declare Bajo de Masinloc as a rock rather than an island.

UNCLOS said, “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

Retired Philippine Navy Commodore Rex Robles, who has been to the area a few times for gunnery practice, declares that “Panatag shoal is a rock.”

“It cannot support human life. It is not an island,” he concludes.

Lawyer Romel Bagares, executive director of Center for International Law (Philippines), said RA 9522 “does not actually specify whether Bajo de Masinloc consists just of uninhabitable rocks or is capable of economic life pursuant to Art 121 of the UNCLOS. This could be one way of arguing ITLOS has jurisdiction, especially as to the interpretation of provisions. It's a pragmatic approach, no doubt.”

What is obvious, Bagares said, is that RA 9522 assumes that the shoal is part of Philippine territory in the fullest sense of the term.

Del Rosario said, “To the extent that their three ships are within our exclusive economic zone, this is in gross violation of the DOC and UNCLOS.”

DOC is the Declaration of Conduct of Parties in the South China Sea signed in 2002 by members of the Association of Southeast Asian Nations, four of them part claimants to islands in the South China Sea, and China. UNCLOS is the United Nations Convention on the Law of the Sea.

Baja said, “When our ships withdrew from Bajo de Masinloc in June and now (we) could not access the area, the shoal became under virtual occupation by China. “

Baja, who drafted the DOC with Malaysia’s Abdul Kadir, also said Chinese occupation of the disputed shoal has changed the status quo, contrary to the DOC.

The DOC states: “The Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.”

Baja said China is exercising what the International Court of Justice (ICJ) calls “effectivités.” “This is the basis of the Court’s decision on the Ligatan Sipadan case where the court awarded the area to Malaysia over Indonesia. Also the same principle in the case between Chile and Peru and between Nicaragua and Guatemala,” he said.

In 2002, the ICJ awarded sovereignty over Pulau Ligitan and Pulau Sipadan, two very small islands located in the Celebes Sea, off the northeast coast of the island of Borneo, to Malaysia against Indonesia giving weight to the former’s actual and continued exercise of authority over the islands.

Baja said, “We must act and interact before we lose the territory by default and/or estoppel.”

Seven months after China’s occupation of Bajo de Masinloc, the Philippines is still “reviewing” its options.

Asked about the Philippines’ response to China’s declaration it has no intentions of pulling out their ships from Panatag shoal, Del Rosario said, “We are reviewing all our options in accordance with our three track approach encompassing the political, legal and diplomatic means.”

President Benigno Aquino III has refused to discuss publicly the Philippine efforts on Bajo de Masinloc because he said doing so would be “giving the other side a preview of everything that we will do.”

He said, though, in October at a forum by the Foreign Correspondents Association of the Philippines that the matter “is still being studied by our consultants.”

Aquino added, “There are several law firms that we are consulting, conversant and very well thought of and experts in international law, to precisely chart the course of how we will utilize the legal procedures in international law to advance our claims.”

Experts point to two options available to the Philippines: the military option—which is not really an option considering the inferior state of the Philippine Navy compared with China’s naval might—and the legal option.

THE permanent stationing of three of its ships in Bajo de Masinloc is part of China’s “creeping invasion” of disputed territories in the South China Sea, a high-ranking Philippine government official said.

Bajo de Masinloc is Huangyan island to China, which has time and again reiterated “that Huangyan Island and Nansha Islands have always been parts of Chinese territory and that the People’s Republic of China has indisputable sovereignty over these islands and their adjacent waters.”

“The claim to territory sovereignty over Huangyan Island and Nansha Islands by the Philippines is illegal and invalid,” China says.

Nansha is what the Chinese call the Spratly Islands, a group of islands on the South China Sea, parts of which are being claimed by the Philippines, Vietnam, Malaysia, Brunei and Taiwan.

China’s presence on Bajo de Masinloc is also an alarming reminder to the Philippines of how Mischief Reef came under Chinese control 18 years ago.

In the early 1990s, China had built structures it said were just fishermen’s shelters on Mischief Reef. Through the years, China added installations on the island, including a radar system.

Philippine and U.S Air Force reconnaissance revealed military structures on Mischief Reef belying Chinese claims. In January 1995, the captain of a Philippine fishing boat reported that he was arrested and detained for a week by the Chinese when he ventured into Mischief Reef.

Since then Mischief Reef has been under the control of China and inaccessible to Filipinos.

A paper titled “Geopolitics of Scarborough Shoal” written by Francois-Xavier Bonnet of the Bangkok-based Research Institute on Contemporary Southeast Asia (IRASEC) explains the importance of Huangyan Island to the bigger and long-term objective of China.

Bonnet said Huangyan Island/Bajo de Masinloc is crucial to China’s claim over the Zhongsha Qundao islands which is vital in its controversial “nine-dash line map.”

The map is called “nine-dash line” or “nine-dotted line” because it shows a series of nine dashes or dotted lines forming a ring around the South China Sea area, which China claims is part of its territory. The area includes the Spratlys group and Bajo de Masinloc.

The “nine-dash line map” puts 90 percent of the whole South China Sea under Chinese jurisdiction.

The map does not have coordinates, but was submitted by China to the United Nations on May 7, 2009.

Bonnet explained, “The Zhongsha Qundao is composed of Macclesfield Bank, Truro Shoal, Saint Esprit Shoal, Dreyer Shoal and Scarborough Shoal. All these banks and shoals, except for Scarborough Shoal, are under several meters of water even during low tide. Chinese policymakers know too well that without Huangyan island, the chance of their ownership over Zhongsha Qundao recognized is nil.” Bonnet said, “The stakes are high. If China loses Huangyan/Scarborough, it will lose Zhongsha Qundao, which could be divided by the EEZs of the neighboring countries or placed under the regime of the high seas. By consequence, China’s entire claim to the South China Sea supported by the U-shape line would be moot and academic.”

Last June, China elicited international concern when it established Sansha City on Yongxing Island in the southernmost province of Hainan. Sansha City’s territory includes the Spratlys, the Paracels and Macclesfield Bank.

Immediately after establishing Sansha City, China’s Central Military Commission, its most powerful military body, approved the deployment of a garrison of soldiers from the People’s Liberation Army to guard disputed islands.

China’s Ministry of Civil Affairs said in June that putting Macclesfield Bank, the Paracels and the Spratlys under Sansha would “further strengthen China’s administration and development” of the three island groups.

The Philippines protested the establishment of Sansha City, specifically the inclusion of a part of its territory, Macclesfield Bank, one of the largest underwater atolls in the world, covering an area of 6,500 square kilometers.

Former foreign undersecretary and Philippine Permanent Representative to the United Nations Lauro Baja said there is no doubt that China has Bajo de Masinloc in its long-term territorial design.

Incidents of Philippine Navy ships apprehending Chinese fishermen in the vicinity of Bajo de Masinloc is common. In 1999, the Philippine Navy even “accidentally” sank a Chinese fishing boat. But the conflict never went beyond the standard diplomatic protests.

Former Foreign Secretary Domingo Siazon recalled one apprehension in 1998 that was a subject of a diplomatic protest by China involving a young navy officer named Antonio Trillanes IV, who would would later on become a senator and play a controversial role in the tension between the Philippines and China over the disputed shoal.

But Philippine encounters with the Chinese in Baja de Masinloc took a different turn on April 8, 2012, when the BRP Gregorio Del Pilar, the Philippines lone modern warship acquired from the United States, arrested Chinese fishing vessels in the area.

Philippine military officials said BRP Gregorio del Pilar was due for preventive maintenance servicing in Subic at that time but was redirected to Northern Luzon as contingency undertaking for an impending North Korea rocket launch.

The combat ship was also ordered to verify reports about the presence of the Chinese fishing vessels in Bajo de Masinloc. They arrested Chinese fishermen in eight fishing boats caught with sizable quantities of endangered marine species, corals, live sharks and giant clams.

Looking back, officials say the April 8, 2012 incident gave China an excuse to occupy the area.

China immediately deployed three Chinese Marine Surveillance (CMS) ships to Bajo de Masinloc to rescue their fishermen and added more than 80 vessels as the standoff dragged on.

The Philippines later withdrew BRP Gregorio del Pilar, which was replaced by a Philippine Coast Guard ship and a research vessel by the Bureau of Fisheries and Aquatic Resources in observance of “white to white,” referring to civilian ships, and “gray to gray,” meaning navy-to-navy rules of engagement.

The standoff that lasted 57 days spilled over to the economic front with China rejecting inferior quality bananas from the Philippines and cancellation of Philippine-bound Chinese tour groups.

It was only broken upon the insistence of the United States State Department that the issue be resolved because President Barack Obama did not want it included in the agenda of his June 8, 2012 meeting with President Benigno Aquino III at the White House.

With the breakdown of communication between the straight-talking Philippine Foreign Secretary Albert Del Rosario and Chinese Ambassador Ma Keqing in Manila, U.S. Assistant Secretary of State for East Asian and Pacific Affairs Kurt Campbell proposed to Chinese Vice Foreign Minister Fu Ying in Washington D.C. that Chinese and Philippine vessels withdraw simultaneously from the disputed shoal.

By that time, Trillanes had entered the picture and was directly negotiating between Beijing and Malacañang to help de-escalate the tension.

Hours before Aquino left for London and Washington D.C. on June 4, 2012, Malacañang announced the pullout of Philippine ships from Bajo de Masinloc “consistent with our agreement with the Chinese government on withdrawal of all vessels from the shoal’s lagoon to defuse the tensions in the area.”

Diplomatic sources said Fu Ying never committed complete withdrawal of their ships from Bajo de Masinloc as there was resistance from the People’s Liberation Army, an important sector in China’s power structure.

Del Rosario said when he met with Fu Ying during her Manila visit last Oct. 19, “I was very direct in saying that the presence of their ships is in clear violation of our sovereign rights, and they must withdraw their ships at the earliest possible time.”

Fu Ying did not respond, he said.