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UNWARRANTED BASHING: Historically, the Scarborough Shoal has always been outside the 1898 Treaty limit of the Philippines
CHINA has been accused of stoking tensions in the South China Sea. It has been bashed over the Scarborough Shoal stand-off, now in its fifth month, and over the establishment of a military garrison and formation of Sansha city on Woody Island.
The hype over Sansha city and the military garrison is unnecessary. The city was formalised in 2007. The People's Liberation Army has occupied the Paracels archipelago since 1974.
Many have accused China of being the hidden hand during the 45th Asean Foreign Ministers Meeting in Phnom Penh. When the ministers failed to issue a joint communique, the blame was put on China. By now, I believe China has become immune to the occasional labelling of a regional bully by the Western media.
No one denies that China has been assertive in the South China Sea since it fought South Vietnamese troops for the control of the Paracels, including Woody Island, on Jan 19, 1974. In April 1988, it fought a brief naval war with Vietnam and in 1995, it occupied Mischief Reef.
Vietnam, Malaysia and the Philippines have garrisoned their territories in the South China Sea. Taiwan has the biggest military garrison on Itu Aba. Brunei is the only claimant that does not occupy any feature.
What actually happened at Scarborough in April this year? On April 10, Manila sent its largest warship, BRP Gregorio del Pilar (former United States Coast Guard Cutter USS Hamilton) to arrest Chinese fishermen at the Scarborough Shoal for "breaching Philippine sovereignty and maritime jurisdiction" -- a euphemism for illegal entry, illegal fishing and poaching.
Two Chinese civilian vessels from the Bureau of Fisheries Administration rushed to the scene just in time to stop the seizure of eight fishing vessels; the catch was, however, impounded.
Of course, this was not the first arrest of Chinese fishing vessels for illegal fishing and poaching in the area. For example, in July 1997, the Philippine navy arrested 21 Chinese fishermen for illegal entry in the vicinity of Scarborough Shoal.
The fishermen were arraigned before the Regional Trial Court of Olongapo in Zambales district, which administers the Scarborough Shoal. Judge Elioboro Ubiadas dismissed the case on the ground that the accused were apprehended "in a place over which there is yet agreement between the Chinese and the Philippine governments".
In his opinion, there could be no legal basis to conclude, "the accused entered the Philippine territory illegally".
This decision is likely to dent Manila's claim. Historically, the Scarborough Shoal has always been outside the 1898 Treaty limit of the Philippines, a point that Manila does not deny.
A presidential decree in 2009 elevating the status of the Scarborough Shoal as a Regime of Islands under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) Treaty was protested by many states, including China. The shoal is not part of the Philippine baseline system.
Manila has based its claim of the Scarborough Shoal on "effective occupation and effective jurisdiction since independence". Manila has discounted proximity as the basis of its claim.
On April 18, the Department of Foreign Affairs admitted that its sovereignty and jurisdiction over the Scarborough Shoal (Bajo de Monsiloc) is not premised on proximity or "the fact that the rocks are within its 200 nautical miles or continental shelf under UNCLOS".
The debacle at Phnom Penh could have been averted. I am confident by November, when Asean heads meet for the summit, acceptable diplomatic language can be found for their communique.
Asean must not allow the indecisiveness over a phrase to undermine the peaceful process that the grouping has assiduously developed over the years with China. The Code of Conduct (COC) negotiation should not become hostage to some inflexible internal politics.
Asean has more pressing larger geo-strategic issues to worry about. Driven by strategic considerations and the prospects for maritime resources, all claimants have been expanding their military and enforcement capabilities in the disputed South China Sea.
Buoyed by nationalist sentiments, some claimants have sought outside help. The presence of external forces could destabilise the military power equilibrium in the region.
Without some confidence building mechanisms like the proposed COC, incidents-at-sea agreements or joint development projects between the claimants, the maritime security situation in the South China Sea may take a turn for the worse.
There lies the real danger.
States bordering the South China Sea must seek fresh solutions to their divergent interests. Neighbours should solve their territorial disputes by themselves.