By Ellen Tordesillas, VERA Files

(First of two parts)

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.

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