Is China wrong?

Filipino maritime expert digs up proof of Manila’s century-long jurisdiction over Scarborough Shoal

Exclusive by Raïssa Robles

A Filipino maritime law expert has dug up a 1916 Philippine Supreme Court decision which shows Manila – not China – has had actual legal and maritime jurisdiction over Scarborough Shoal for at least a century.

In contrast, China imposed its legal jurisdiction over Scarborough Shoal only this week by creating a law-making body to enact laws over Sansha City, which now includes Scarborough Shoal or Huangyan Island. China started imposing its maritime jurisdiction over Huangyan this year when it asserted the rights of its fishermen to fish in and around Huangyan.

Dr. Jay Batongbacal, a University of the Philippines law professor, told me that the lawsuit decided by the Philippines’ top court in 1916 – led by Filipino Chief Justice Cayetano Arellano – “is clear evidence that we were exercising jurisdiction over the shoal and incidents on it during the American colonial period” in the Philippines.”

“This case is proof we are the ones responsible when it comes to shipwrecks on Scarborough,” he said.

Implications to US’ treaty obligations to the Philippines

Dr Batongbacal also presented additional proofs which, to my mind, have far reaching implications. His proofs show that the United States amended the 1898 Treaty of Paris with Spain by negotiating and signing the 1900 Treaty of Washington in order to buy up the “outlying islands” of the Philippines which were not expressly included in the Treaty of Paris. Scarborough Shoal was one of those “outlying islands”.

Dr. Batongbacal did not categorically say it but I personally believe this means the US then considered Scarborough Shoal as part of its Philippine possession. Therefore, when the Philippines and the US signed the Mutual Defense Treaty in 1951, Scarborough Shoal was considered part of the “island territories” that either side had to defend in case of an “armed attack”, but in accordance with each nation’s constitutional processes. This is stated in Article IV of the MDT.

Article V of the MDT then defines what would prompt one side into coming to the aid of the other. It states:

For purposes of ARTICLE IV, an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific.

Hmmm. Did I just read this right? The MDT even includes “an armed attack on…its (the Philippines or US) armed forces, public vessels or aircraft in the Pacific.” I’ll leave this section to the envoys of both sides to clarify this.

The Mutual Defense Treaty can be accessed here.

This piece will be about the findings of UP College of Law professor Jay Batongbacal, who was among those who helped the country firm up its claim on Benham Rise in the East Philippine Sea.

Dr. Batongbacal is the first academic I have heard who has squarely challenged China‘s historical claims over Scarborough Shoal. He holds a Master of Marine Management degree and a doctorate in the Science of Law from Dalhousie University, Canada.

China’s ancient claim to Scarborough Shoal (Huangyan Island)

China dates its claim over Scarborough and Spratlys (which it calls Nansha Islands) as far back as 1279 during the Yuan dynasty, when it said Chinese astronomer Guo Shoujing surveyed the South China Sea and reportedly used Scarborough shoal as the surveying point. [Interestingly, however, he never gave Scarborough a Chinese name, whereas other islands were later given Chinese names such as Ma-i or Ma-yi – an island group which included Mindoro – and Liu-sung for Luzon.]

Still, who can quarrel with China’s seemingly detailed proof that points to a scientist as the source?

Well, Prof. Batongbacal just did in a public lecture entitled “The Philippine Security Interests in Panatag Shoal” which he delivered Tuesday last week at the UP College of Law auditorium. [The Philippine government now refers to Scarborough as Panatag.]

Prof. Batongbacal pointed out the historical context of China’s 1279 claim:

At that time, China was part of the great Mongol empire. Going by the implied logic, Huangyan Island should rightfully belong to Mongolia.

He also noted that China has to this day not produced for public scrutiny the 1279 map on which it bases it historical claim. During his public lecture last Tuesday, Dr. Batongbacal showed a copy of a map dating back to the Yuan Dynasty and noted that: “This Yuan dynasty map cannot even properly place Luzon and Mindanao islands.”

Filipino academic refutes China’s jurisdiction claim over Scarborough

I find it interesting to see that there is a gap of 656 years between China’s 1279 record and its more recent mentions of  Scarborough in official records.

It is only in 1935 when Chinese official records state that the shoal – which it mentions by its popular western name “Scarborough Shoal” – was part of its “Zhongsha Islands”. It is only in 1947 that China baptized the shoal with its first Chinese name – Minzhu Jiao or Democracy Reef.

Recently, the Chinese Embassy in Manila released the following arguments why Scarborough Shoal does NOT belong to the Philippines. Chinese Embassy spokesman Hua Zhang said:

The Philippine territory is set by a series of international treaties, including the Treaty of Paris(1898), The Treaty of Washington(1900) and the Treaty with Great Britain (1930), none of which ever referred to Huangyan Island or included this island into its territory. Until 1997, the Philippine side has never disputed China’s jurisdiction of and development on Huangyan Island.

No one contradicted this, that is, until Prof. Batongbacal said in his lecture last week that “Bajo de Masinloc is considered as having been ceded to the United States by Spain” through the Treaty of Washington in the 1900.

I learned in school about the Treaty of Paris in 1898 which sold the Philippine Islands and our ancestors, together with the islands and natives of Cuba, Puerto Rico and Guam for the sum of US$20 million. (Why, if you just consider this amount without converting it to today’s prices, many of our lawmakers have the money to buy up the same assets.)

In any case, I don’t recall studying about the Treaty of Washington of 1900. It was my first time to see its wording when Prof. Batongbacal flashed it on a giant screen.

Remember, the Chinese Embassy said the Treaty of Washington is one of the proofs showing Scarborough Shoal is not within Philippine territory. But what the actual words of the treaty say contradict the Chinese Embassy’s statement. The very title of the treaty says it all – Treaty between Spain and the United State for Cession of Outlying Islands of the Philippines.

“Outlying Islands” mean outside the area delineated by the Treaty of Paris in 1898, Prof. Batongbacal said.

The Treaty of Washington has only one section and it says:

Spain relinquishes to the United States all title and claim of title; which she may have had at the time of the conclusion of the Treaty of Peace of Paris, to any and all islands belonging to the Philippine Archipelago, lying outside the lines described in Article III of that Treaty and particularly to the islands of Cagayan Sulu and Sibutu and their dependencies, and agrees that all such islands shall be comprehended in the cession of the Archipelago as fully as if they had been expressly included within those lines. [Underlining mine.]

For this, the US paid Spain an additional US$100,000.

Scarborough Shoal is not mentioned by name here, Chinese officials are bound to say.

Prof. Batongbacal has this answer:

Bajo de Masinloc (the name given to Scarborough Shoal by Spanish and European maps) is in the first official American map of the Philippine Islands issued in 1900 by the US Bureau of Coast and Geodetic Surveys.

He noted that this map had been criticized for including the islands of Borneo and the southern tip of Taiwan (then named Formosa). “But notice the very clear difference in the coloring” of Borneo and Taiwan to that of the Philippine islands, he said. What he meant was that the map maker merely included the two other islands as reference points.

As further proof that Scarborough Shoal was among those islands ceded by Spain to the US under the Treaty of Washington in 1900, Dr. Batongbacal unearthed a court ruling around that period and said,

At that time of the signing (of the Treaty of Washington), Bajo de Masinloc was always under the direct control of the the Philippine (colonial) government primarily for purposes of safety of navigation.

Those who say that occupation is the best proof of ownership have not seen how tiny that shoal is. A defense analyst who has physically seen it told me in a separate interview that the rocky outcrop at low tide could probably accommodate up to 20 people packed tightly, standing up. In other words, it’s not livable unless you build a structure on stilts on it. No one has ever lived there.

Before the United Nations Convention on the Law of the Seas (UNCLOS) was drawn up in the 1970s, the only reason why Scarborough Shoal was well known was because it was a navigational hazard. In fact it got its internationally known name – Scarborough Shoal – from a British tea trade ship with that name that was wrecked there in the late 1700s.

Scarborough Shoal entered Philippine jurisprudence in 1916 when the Philippine Supreme Court decided a case involving a shipwreck there. The shipwreck predates China’s 1935 claim.

I asked Dr. Batongbacal if it was correct to conclude that if China claimed jurisdiction over Scarborough Shoal for over six centuries, it should have had some sort of agency in the 1900s that would have been in charge of rescuing shipwrecked survivors and of keeping count of the shipwrecks there.

Dr. Batongbacal replied to me:

China would have had one agency responsible for whatever happens there, including shipwrecks. This case is proof we are the ones responsible when it comes to shipwrecks on Scarborough.

And the fact that a lawsuit involving a foreign vessel was brought before and decided by a Philippine court led by a Philippine judge shows that foreigners recognized that the Philippines had legal jurisdiction over incidents on Scarborough Shoal for nearly a century.

Isn’t this argument for claiming Philippine  jurisdiction far stronger than making Scarborough Shoal a reference point for a survey map of the South China Sea drawn in 1279 that probably looks like the map below? Prof. Batongbacal said this is a copy of a Yuan dynasty map.

For those who want to read all about the shipwreck, below is a summary of the case. And a link to the actual SC decision.

The shipwreck

Example of a shipwreck

On May 7, 1913, the Swedish steamship Nippon, laden with copra (dried coconut meat), camphor and curios, sailed from Manila to Singapore. The weather turned bad. The next day Nippon “went aground on Scarborough Reef about 4:30 in the afternoon of May 8, 1913,” the SC decision issued in 1916 noted.

The crew waited a day to see if the rising tide would free the vessel. When it did not, its chief officer Weston, with nine men, rowed the two remaining boats back in the general direction of Luzon island. [What now takes a mere five hours by fast boat took Weston’s crew three days to reach Santa Cruz, Zambales.]

In Santa Cruz, Weston send this telegram to Manila to a Mr. Helm, the Director of the Bureau of Navigation:

SANTA CRUZ, ZAMBALES,
May 12, 1913.
DIRECTOR OF BUREAU OF NAVIGATION, Manila
Nippon stranded on Scarborough Reef, wants immediate assistance for saving crew – boats gone. 12.15 p. m.
(Sgd.) WESTON.

An hour later, according to the Supreme Court, “the Government of the Philippine Islands ordered the Coast Guard cutter Mindoro with life-saving appliances to the scene of the wreck of the Nippon.”

The bureau also asked the steamship Manchuria, then about to sail from Manila to Hong Kong, to pass by Scarborough Reef. Manchuria arrived first at the wreck and the captain of the wrecked ship, Eggert, decided that he and the remaining crew would board Manchuria. Just then the Philippine coast guard cutter Mindoro arrived and offered to take the men and their baggage back to Manila. Still, Captain Eggert told Coast Guard Captain Anderson he preferred to go to Hong Kong to contact “my owners’ agents” and arrange for salvage operations with “the Tykoo dockyard people (and) the Hongkong dockyard people.” But Captain Eggert asked the coast guard captain to bring the rest of their baggage back to Manila.

Coast Guard Captain Anderson testified before a lower Philippine court that he sailed to the shipwreck a second time on May 14 and reached there on May 15:

I examined Nippon more fully and I believe that if the cargo is taken out the ship can be saved after the holes are patched up, if this is done before the heavy weather sets in.

It is unclear from court records whether it was Captain Anderson who contacted the salvage operator or the other way around. In any case, the SC decision states that the salvage operator, Erlanger & Galinger, “chartered” the Coast Guard Cutter Mindoro’s second return to S. S. Nippon. Under international maritime law at that time, salvage operators were free to go to any abandoned shipwreck, offload any cargo on board, tow the ship back to port if possible, and sell off the salvaged goods.

The court decision noted that:

The plaintiffs [Erlanger & Galinger] took possession of the Nippon on or about May 17, 1913, and continued in possession until about the 1st of July, when the last of the cargo was shipped to Manila…The Nippon was floated and towed to Olongapo, where temporary repairs were made, and then brought to Manila.

Meanwhile, as soon as Captain Eggert arrived in Hong Kong on May 14, he sent the following cablegram to the ship owner:

Nippon wrecked during typhoon eight May Scarborough Shoal latitude 15 longitude 118 probably total wreck bottom seriously damaged ship full of water chief officer and nine men took to boat for rescue landed twelfth Luzon mailsteamer Manchuria saved captain and remaining crew morning thirteenth. Arrived Hongkong tonight. Wreck on edge of reef, will probably slip off and sink by first gale captain arranging to visit wreck and attempt salvage.who arrived there

His cablegram showed his pessimism at recovering the ship.

However, later, when Nippon’s ship owner learned that a “salvor” had actually managed to recover the ship and the goods in it, the owner refused to pay the salvor the recovery costs. It was the salvor – Erlanger & Galinger – that brought the lawsuit against the cargo insurers and the ship owner after it felt it did not get enough compensation for its “perilous” service. The Supreme Court led by SC Chief Justice Arrellano decided in the salvor’s favor.

In the course of the trial, two expert witnesses were presented by the plaintiff. One of them named Captain Robinson was asked whether he “would have gone to Hong Kong and used Hongkong men and material and made Hongkong your base on operations” if he had been the salvor.

Robinson replied:

Certainly not. I would have made Manila my base, which I always have done.

A second expert witness – a stevedore named Lebreton – also testified that:

…he would have gotten some of his materials from Hongkong but that he would have freighted the salved cargo to Manila. All other things being equal, the fact that Hongkong is forty sailing hours from Scarborough Reef while Manila is less than twenty-four sailing hours would make Manila by far the more logical base.

Here’s the link to the actual SC decision that shows the Philippines’ jurisdictional claim on Scarborough over that of China.

Here’s the link where you can download a copy of the Treaty of Washington. Just click on Reference No. 32