Legal Differences Between Claims to the South China Sea

[Please see a revised version of this here]

I commented to a friend a few days ago that there was something “natural” looking to the Philippines territorial claims map, while the Chinese map looked distinctly phallic – it just jutted out into the ocean with seemingly no other logic than “mine!” I was digging around Wikipedia trying to understand the history of the different claims and came to an interesting realization. There’s a reason for that: the Philippines isn’t claiming more than what what most would already recognize as the Philippines.

The legal basis for each country’s claim is different, which is why the maps look so different. The Chinese are claiming Scarborough Shoal (and the Spratley’s, and the Paracels, and every other uninhabited rock and reef in the South China Sea) as integral parts of China’s territory. They’re as Chinese as the neighborhoods inside third ring of Beijing. Each island then has a 12 mile territorial claim around it and an Economic Exclusion Zone extending up to 200km outwards, but usually stopping at the halfway point between it and another country’s territory.

The Philippines is making a much more subtle claim. They’re claiming the Shoal and the Spratley’s they fall under Philippine jurisdiction rather than being a “part” of the Philippines, per se (though it does seem they’ve made that claim at times). They’re arguing they have the same legal rights to the shoals as they would an offshore oil field. They claim this under terra nullius – that the islands don’t belong to anybody. They are, after all, just some rocks standing above the waves. So while China is claiming “mine!”, the Philippines claim is more nuanced “not yours” to her neighbors. They’re nobody’s rocks but they’re more ours than yours. They’re also not claiming anything more specific than open ocean 200 miles out from their coast.

In so much as the shoal is a point of interest it is a Chinese interest. It’s just part of the sea to the Philippines. If the Philippines were claiming these as territories like the Chinese were, then the EEZ would jet out from each of these islands another 200 miles and their territorial waters would also cover much of the South China Sea, much as the Chinese map does.

A big difference is that an EEZ is still “international waters” in a lot of ways. Ships, even military ships, are allowed to sail through it without permission. A countries claims would seem to end at the right to use resources from the area. Think of it this way: if some enemy fleet were sailing towards your country you wouldn’t have the right to sink it until they crossed the twelve mile line. Thus, China’s claim of the shoal being territorial waters make claims of Filipino transgressions technically more provocative – on par with enemy ships sailing around inside the Pearl River Delta. Even if the Philippines did have a powerful military to counter Chinese claims, the Chinese sending a fleet to the area is a lot less provocative for them than the other way around.


  1. Dawn Dare said:

    China’s dubious and ridiculous claim that the shoal is part of its territory runs contrary to what its own defense minister, Liang Guanglie said in the June 2011 Asian Security Summit in Singapore. He declared in no uncertain terms that “there has always been freedom of navigation in the South China Sea because NOBODY OWNS IT”.

    May 11, 2012
  2. The Nutbox said:

    Actually, the Philippine claim is more nuanced than this. The Philippines makes a distinction between its claims on the Scarborough rocks and the waters around it.

    Over the waters, you are right; the Philippine claim them merely as a part of its EEZ, of which it has exclusive right to exploit resources. This is by virtue of the UNCLOS.

    On the rocks, meanwhile, the Philippines claim them as integral parts of the country by virtue of customary public international law. The Philippines claims that it has made effective occupation (planted a flag, built a lighthouse, used the rocks as target grounds for joint US-Philippine war games in the past, etc) over these heretofore res nullius land features.

    However, the Philippines agrees that these rocks don’t have a 12 mile territorial water and 200 mile EEZ around them since, under UNCLOS, they don’t qualify as an island.

    Therefore, as far as the Philippines is concerned, the rocks are “ours” but the waters around them are “more ours than yours.”

    May 11, 2012

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