Framing the Scarborough debate

THE PHILIPPINES is right in distinguishing our claims over land from those over the waters in Scarborough, but strategically we are better off focusing on the waters over which we have a clear legal advantage. But if our legal ascendancy is so clear, then it is just as difficult to imagine that China would have wanted the tussle at Scarborough even if it was spoiling for a fight to secure its place among world powers.

We must stand fast on the law, before international tribunals if needed, but meanwhile leave enough diplomatic elbowroom to allow both sides to leave the peace negotiators’ table with their dignity intact.

We must remain focused on our claim under the Law of the Sea (LOS). The intrusion was committed in the waters (not on the land), when Chinese vessels harvested endangered marine species being protected by the Philippines under its treaty obligations on “endangered species of wild fauna and flora.” The Philippine presence was completely benign—a marine archaeological survey team sent by the National Museum, and which was constantly harassed by the Chinese boats.

Those waters undeniably lie within our country’s exclusive economic zone (EEZ) and continental shelf (CS) over which we have “sovereign rights” to exploit and conserve natural resources. The numbers are unmistakable. Scarborough lies 124 nautical miles west of Zambales, and our EEZ and CS extend to 200 nautical miles from our coasts. The waters indubitably belong to us, even if hypothetically the lands do not.

Finally, the EEZ and CS are secured by the LOS Convention, a treaty that both the Philippines and China have signed.

In contrast, in Scarborough, the only land at stake are five rocks that jut three meters above water at high tide. The rest of what we call Scarborough Shoal are “low-tide elevations” that lie “above water at low tide but [are] submerged at high tide.” They are treated merely as parts of the surrounding waters which belong to the Philippines’ EEZ. They do not generate any territorial sea of their own.

Neither are these five rocks considered “is- lands” defined by the LOS as “land, surrounded by water, which is above water at high tide.” They can generate an EEZ and CS only if they are islands. However, they are mere “rocks which cannot sustain human habitation or economic life of their own.” They do not have an EEZ or CS and at best generate merely a 12nautical-mile territorial sea.

That is why even if the five rocks belong to China, all it gets is a 12-nautical-mile territorial sea surrounded by our 200-nautical-mile EEZ and CS. That offers minimal economic benefits. Its only other plausible value is military, as a base that can be built up, but that would only fan everyone’s fears about the dark side of China’s “peaceful rise.” Even China would downplay such suspicions.

Worse, whereas our claim over the waters is founded on metes and bounds laid down in a treaty that even China accepts, our claim over the land is founded on customary law that requires us to demonstrate effective control. What’s the point then of the Philippines depleting its legal ammunition over the rocks, when its claim over the waters is rock-solid (pun intended)?

We must also try to look at Scarborough from the China’s side. We shouldn’t assume that China sent its boats to Scarborough deliberately to set up a confrontation. There’s so little at stake there that it could only be symbolic posturing by an upstart world power. Perhaps they say: Better to make a show force at Scarborough where there’s just one puny protagonist, rather than at the Paracels vs Vietnam or the Spratlys vs a common front by several Asean states.

But if the goal was to send a signal to the world, why choose a rocky shoal where its claim rests on shaky legal ground? Wouldn’t China send a stronger signal if it envelops its claim in law? Or perhaps the signal is even stronger if the world meekly acquiesces as China, bereft of law, bullies its way through? Isolate the Filipinos and pummel them to the ground, as the world watches.

Moreover, the rhetoric about China’s supposed historic claims relies on the emotional appeal to nationalism that lends itself too easily to jingoistic rabble-rousers. Worse, at this moment, China might precisely be more susceptible to patriotic frenzy.

The International Crisis Group, an independent think tank with offices all over the world including Beijing, has pointed out that even before the Scarborough standoff, China’s policy on the South China Sea has been bedeviled by “nine dragons stirring up the sea,” referring to the multiplicity of government agencies competing for a say on the issue, aggrandizing their turf and possibly their budgets, several of them purely domestic agencies with little foreign policy exposure.

Compound that with the internal power struggle among China’s rulers, exposed by the suspension on corruption charges of Bo Xilai, erstwhile rising star of the Chinese Communist Party. He was a “princeling” in the parlance of Chinese politics, son of a veteran of the Long March who later became one of the party elders, and his fall exposed ideological divisions among China’s rulers. His wife, a lawyer, is currently under investigation for the murder of a British business associate.

For China, now is the worst time and Scarborough Shoal the worst case on which to lay the framework for a lasting solution to its perennial territorial disputes with its neighbors. For the Philippines, the Scarborough standoff is an excellent test case. The Filipino boats carried scientists doing archaeological research. The Chinese boats carried illegal fishermen killing corals and endangered species protected by Philippine environmental laws. They were in our EEZ created by a treaty recognized by both us and China. Standing our ground on a rocky shoal? Go for it.