The recent standoff between China and the Philippines in the South China Sea began on April 10 when the Philippine Navy boarded, searched and tried to apprehend Chinese fishing boats anchored in the lagoon within the Huangyan Island (Scarborough Shoal), and later two Chinese Marine surveillance vessels arrived to prevent the Philippine Navy vessel of further actions against the fishing boats.
As a result of diplomatic efforts, tensions have calmed down, but the standoff at the Scarborough Shoal is continuing. Therefore the two sides still need to negotiate in order to find a diplomatic end to the impasse.
The Huangyan Island, called by the Philippines as Bajo de Masinloc, composed of a few maritime features, is located about 330 nautical miles east of Xisha Islands (Paracel Islands) and 124 nautical miles west of Luzon Island of the Philippines.
Since 1997, the Philippine side has disputed China's sovereignty over the Huangyan Island. The recent standoff is the latest manifestation of the territorial dispute between the two states. After the incident arose, Beijing and Manila issued papers respectively to support their competing claims to the disputed island. It is interesting to note that both sides agree that "geographical proximity" is not a mode of acquiring territory under international law. Thus, the fact that Huangyan Island is closer to the Philippines than to China has no consequence for the settlement of the dispute.
Furthermore, both sides also agree that the 1982 United Nations Convention on the Law of the Sea, to which both states are parties, especially its exclusive economic zone (EEZ) and continental shelf regimes, can not be utilized as a legal ground to claim territorial sovereignty.
Therefore, the fact that the Huangyan Island is within the 200 nautical miles EEZ or continental shelf of Luzon Island has no relevance in determining sovereignty either.
According to Beijing, the basis of its sovereignty over Huangyan Island is "It is China that first discovered this island, gave it the name, incorporated it into its territory, and exercised jurisdiction over it," while Manila asserts that "the Philippines has exercised both effective occupation and effective jurisdiction over Bajo de Masinloc since its independence". Thus, both sides take the occupation of terra nullius as the legal basis of their claim to the island in question. As a mode of acquiring territory, occupation is often preceded by discovery, so it is appropriate to begin with the question which party discovered and named the relevant territory, and then to see whether the discovering state has exercised effective control to establish its title. In this respect, it seems undisputable that Huangyan Island was discovered by China as early as in the Yuan Dynasty (1271-1368 AD).
In 1279 when Chinese government performed surveying of the seas around China, Huangyan Island was used as an observation point in the South China Sea. Although it is true that lots of materials, including historical materials show that China was the first state to discover and name the Huangyan Island, and the first to exercise jurisdiction over it, it does not mean that Chinese claim to Huangyan Island is merely based upon the historical arguments. In fact, the Chinese claim to Huangyan Island has been substantiated by its continuous and various sovereign activities. Huangyan Island, as a part of Zhongsha Islands (Macclesfield Bank), has consistently been under China's administration. The relevant Chinese laws and regulations provide China's sovereignty over Huangyan Island, such as its declaration on the territorial sea in 1958 and the law on the territorial sea and contiguous zone in 1992.
All the official maps published by Chinese governments of different periods marked Huangyan Island as Chinese territory. These maps and laws not only demonstrate the intention of China to claim the sovereignty of Huangyan Island, but also constitute part of the open, continuous, peaceful and effective jurisdiction exercised by China over the island. Besides, many scientific expedition activities, authorized or endorsed by Chinese authorities, were held on the island as well as in its surrounding seas. In evaluating the effect of these sovereign activities, two facts should not be overlooked. First, Huangyan Island is remote and has not been inhabited even today. Second, no rival claim to the island had been put forward until 1997.
According to Manila, the Philippines also exercised effective jurisdiction over the Huangyan Island and therefore obtained its sovereignty on the basis of occupation. For example, a Philippine flag was erected on the island by two Philippine congressmen in 1997, and the baseline around the Huangyan Island was delineated in 2009. However, these activities were undertaken after the Philippines had challenged the Chinese sovereignty over Huangyan Island and for the purpose of improving the legal position of Manila. According to the relevant jurisprudence of the international tribunals, such activities should not be taken into consideration in the determination of a territorial dispute.
The Philippines also mentioned that it had built and operated a small lighthouse on the Huangyan Island in 1965. But the International Court of Justice (ICJ) has observed that the construction and operation of lighthouses and navigational aids are not normally considered manifestations of state authority. Furthermore, that small lighthouse has ceased to be operational.
What is more important, one major obstacle for Manila to claim the Huangyan Island is the island has always been considered to be outside the territorial limits of the Philippines. For example, according to the Treaty of Paris (1898), the Treaty of Washington (1900) and the Treaty with Great Britain (1930), the western limit of the Philippine territory is the 118º meridian of longitude east of Greenwich while the co-ordinates of Huangyan Island are 15º08'-15º14'N and 117º 44'-117º48'E, and thus the island is not within the limit. Furthermore, even the Philippines indicated the same view on a number of occasions. For example, the 1961 Republic Act No.3046 and the 1968 Republic Act. No. 5446, which defined the territorial sea baselines of the Philippines, did not include the Huangyan Island, and the maps published by Manila in 1981 and 1984 also indicated that the Huangyan Island is outside the Philippine territory.
In fact, even in early 1990s, some Manila high ranking officers still maintained that the Huangyan Island did not belong to the territory of the Philippines. These facts cast doubt on the intention and will of the Philippines to act as sovereign with regard to the disputed island.
In the light of the fore-going, taking the jurisprudence of the international courts and tribunals on the subject account, it is quite plausible to argue that China had established its original title to the Huangyan Island under the relevant rules of international law. It follows that the Philippines can not acquire the title to Huangyan Island by occupation because the disputed maritime feature was not terra nullius when the Philippines advanced its claim in 1997. In such a case, unless Beijing abandons this island or acquiesces to the Philippine's claim, any attempt by Manila to establish the actual control over the island in question could not bring the title to it.
Gao Jianjun, professor of International Law in China University of Political Science and Law. This article is originally published on People's Daily Online.