Conclusion
1) The Philippines’s claim on Scarborough Shoal can be, probably, based on several activities
of the Spanish Navy during the 19th century. The Spanish authorities surveyed, mapped, and
named the shoal, and organized rescue operations there. These actions, pursued during the
American time, were limited due to the fact that the shoal was far from the coastal area of Luzon
and mostly submerged at high tide. The shoal was nevertheless in the sphere of influence of the
Philippines. During all this time, there is no evidence of a Chinese interest, no protest by the
Emperors of the Qing Dynasty, and no description of fishing activities on this shoal. Even the
Paracel Islands, closer to China, were not part of the imperial territory before 1909.
2) In 1937-38, the colonial authorities, either American or Filipino, claimed Scarborough
Shoal. This claim was supported by the State Department and other important mainland
administrations. The transfer of the shoal could be done by invoking the Treaty of Washington of
1900. Parallel to the Filipino claim, the Chinese government made a blanket claim in 1935 to all the
features of the South China Sea, among them Scarborough Shoal. Nevertheless, with the exception
of the Paracel Islands, the Chinese authorities recognized that they had only one piece of evidence
to justify their huge claim: the presence of their fishermen from Hainan. This preventive claim
could be justified later, in the future, by more thorough research. The Filipino and Chinese claims
were not publicized to the whole world, probably to avoid attracting the attention of the Japanese.
3) Up to the 1990s, the Philippine government had some activities that went unchecked by
Chinese administrations (both mainland China and Taiwan). These activities, like stopping
smuggling activities, bombing the facilities of the smugglers, arresting some of them, building a
small lighthouse with a Filipino flag, and possibly the U.S. and Filipino navies using the shoal for
target practice were all state practices limited by the fact that the shoal is mostly underwater.
Moreover, the constitutions of 1973 and 1987 defined the main territory of the Philippines
archipelago but added, “and all other territories over which the Philippines has sovereignty or
jurisdiction”. Having been claimed by the Philippines since 1937-38, Scarborough Shoal could
logically enter the category “other territories”. This category would recognize the special position
of this shoal as under the sphere of influence of the Philippines during the Spanish time but not
part of the main archipelago. The three laws on the baselines (1961, 1968, and 2009), excluding the
shoal from the main archipelago, tend to reinforce the idea of a special maritime territory.
4) The activities of the Chinese government on the shoal started at the end of the 1970s. The
protests of the Chinese in the decades before were never targeted to the Filipino activities on
Scarborough Shoal, but to activities in the Spratly and Paracel areas. It was the occasion to tell to
the world that China was claiming all the features of the South China Sea, among them Zhongsha
Qundao.
5) The four points above concern the possible land title of the Philippines over the shoal.
These must be combined with the jurisdiction over the water surrounding the shoal. By showing to
the ITLOS that Scarborough Shoal is a low tide elevation with few rocks above sea level, the
Philippines could neutralize the EEZ around the shoal that the Chinese are eyeing. Nevertheless,
this move could push China to choose to interpret radically the symbol of the “U-shape line” and
attempt to enforce its jurisdiction in all the waters encircled by the line, with significant
consequences on the security and stability of the region.
6) The neutralization of Scarborough Shoal is also in the interest of the other ASEAN
countries, as it would reduce considerably the possibility for China to claim the whole South China
Sea. However, the 2012 standoff on Scarborough Shoal has put the spotlight on the deep divisions
among the ASEAN member states. A regional Code of Conduct for the South China Sea, binding
all the claimants, would be necessary to reduce the tensions. However, the possibility is high that
the COC would become a simple declaration under the influence of China.
7) Last but not the least, the Philippines’s claim was made 13 years before the Mutual
Defense Treaty was signed with the Americans in 1951. The claim was supported and encouraged
by the highest personalities in the American administration of the time. Scarborough Shoal could
possibly be considered as part of the MDT’s category, “island territories”. The United States and
the Philippines can develop a “strategic ambiguity” on the possible use or not of the Treaty. This
strategy could “help protect the Philippines and peace and stability in the South China Sea”.96
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