On 8 April 2012, a Philippine surveillance plane spots eight Chinese fishing vessels anchored in a lagoon at Scarborough Shoal. As a response, the Philippine Navy dispatched the BRP GREGORIO DEL PILAR, the lone Navy warship acquired from the United States, from Palawan to the waters of Northern Luzon to conduct surveillance and maritime patrol over the Shoal. On 10 April 2012, upon verification of the company of fishing vessels anchored on the shoal, the Navy warship deployed a boarding team of Filipino sailors for an inspection. The boarding team discovered large amounts of illegally collected corals, giant clams, and live sharks inside the fishing boats. The dispute prompted the deployment of two Chinese maritime surveillance ships which positioned themselves between the Philippine Navy warship and the Chinese fishing vessels, preventing the apprehension of the fishermen and the confiscation of the contraband catch.
The tension over the waters of Scarborough Shoal arises from the basic question of ownership, whether by discovery or occupation, between the conflicting territorial and maritime claims of China and the Philippines. The former argues that it first discovered and mapped the entire South China Sea as early as 1271-1368 AD during the Yuan Dynasty whereas the latter bases its claim on historical dominion of the territory, the earliest being the Carta Hydrographical y Chorographics De Las Yslas Filipinas (or "Hydrographic and Chorographic Map of the Philippine Islands") published in 1734 by Fr. Velarde, identifying the Shoal as part of Zambales.
However, before any question or claim is to be assessed or judged, it is necessary first and foremost that a determination be made as to the exact nature of the object under dispute so as to understand better what rights attach as to either claimant. The preliminary matter to be considered is whether Scarborough Shoal is an island or a mere rock formation. It should be noted that not all land is capable of giving rise to sovereignty rights and derivative maritime rights, hence the necessity to distinguish between a rock and an island.
II. BRIEF HISTORY
Scarborough Shoal (Philippine Name: Panatag Shoal; Chinese Name: Huangyan Dao) is a triangle-shaped chain of reefs and islands surrounding a lagoon covering an area of 150-square kilometres. The closest Philippine land mass is Palauig in Zambales province, approximately 220 km away. Several small islands and reefs in the Shoal are three meters high, but during high tide, many of these are submerged under water except for a few rock formations, the most prominent of which is South Rock, standing 1.8 meters above water at high tide. The Shoal is a host to an abundant marine ecosystem which attracts many fishermen from both China and the Philippines.
III. ISLAND AND ROCK FORMATION DEFINED
Based on the United Nations Convention on the Law of the Seas (UNCLOS), an island is defined as a “naturally formed area of land, surrounded by water, which is above water at high tide.” This definition finds significance in the characterization of an area of land as an island in the sense that it has to be able to support and sustain human habitation or economic life giving rise to rights and claims over proximate maritime zones and resources such as the territorial sea, contiguous zone, exclusive economic zone, and continental shelf.
On the other hand, under the UNCLOS, a rock formation is defined as that “which cannot sustain human habitation or economic life of their own” and as such “shall have no exclusive economic zone or continental shelf.”
IV. WHAT IS “HUMAN HABITATION” AND “ECONOMIC LIFE”?
However, despite this distinction between an island and a rock formation, the UNCLOS did not provide a definition to qualify the criteria relating to “rocks”, “human habitation”, and “economic life.” Thus, there exists a vacuum as to the standards or tests applicable in the...