The Scarborough Shoal Controversy & International Law

China and the Philippines are in the midst of a dispute over the Scarborough Shoal, a small rocky formation in the South China Sea.  Both powers have sent navy ships to the Shoal to buttress their claim to the territory.  Sure enough, both states are trying to assert their dominance in the region.  Nevertheless, both sides are making legal arguments in order to claim the area.

According to the Philippines, their claim to the territory arises from the 2002 Declaration on the Conduct of the Parties of the South China Sea.  That treaty, signed by both China and the Philippines was amongst the Association of Southeast Asian Nations (ASEAN).  The treaty states that disputes must be decided based upon the United Nation’s 1982 Law of the Seas.  The Law of the Sea divides areas offshore into regions, with each region getting a different amount and type of access.  In general, areas up to 200 miles offshore are considered the Exclusive Economic Zone of that nation.   The Philippines argues that the Shoal area is theirs because it is only 150 miles offshore.

According to China, their claim to the Shoal arises from general custom.  They insist that the territory was historically theirs going long back into history.  Furthermore, China argues that their fishermen have long worked in that area, further buttressing their claim.  Lastly, during China’s ratification of the Convention of the Law of the Sea, China asserted sovereignty over all archipelagos and islands recognized under Chinese law.

2 comments

  1. Interesting post. Just wondering whether this has already been referred to international court or perhaps arbitration before the ICC? Territorial disputes have been rising in past two decades. Quite interesting to hear about this one – Each party seems to have a fair argument! Thanks for sharing.

  2. While I think it is fair to say that the majority of the international community would like international law to govern resolution of the dispute over the Scarborough Shoal, it seems to me that military strength is going to be the determining factor as to who is going to ultimately control Scarborough, and international law will be merely a secondary consideration. Smaller Asian nations will have no choice but to accept China’s claims in the South China Sea given China’s military might, unless a comparable military power sides with the smaller nations and challenges China. For an interesting perspective on Chinese claims in the South China Sea, see this: http://online.wsj.com/article/SB10001424052702303425504577351520139152202.html?mod=googlenews_wsj.

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