Scarborough: Philippine ‘island territory’ that US mutually must defend

The Phl-US Mutual Defense Treaty holds: “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.”

Scarborough Shoal, 120 miles west of Zambales, is one such island territory of the Philippines. Manila has exercised jurisdiction over it since the 1700s. Chinese warships, from 600 miles away, grabbed the shoal in 2012. The 2016 UN arbitration invalidated China’s baseless claim to Scarborough. Manila peaceably, creatively, resolutely must retake it. China threatens violence on any Manila effort to reassert sovereignty. It water cannons and rams Filipino fishing boats that venture near. China alone is escalating hostilities. The US must help the Philippines defend Scarborough under the 1951 Mutual Defense Treaty.

The Spanish colonial authority in Manila patrolled Scarborough as part of the territory. The shoal first was identified in Philippine maps as “punto de mandato” or official outpost, then named Scarborough, Panacot, and Bajo de Masinloc. (Present name: Panatag.) The Treaties of Paris, 1898, and of Washington, 1900, ceded the archipelago to the US. The American colonial seat continued to control the shoal. Geodetic surveys and scientific researches were conducted there. Commerce was governed and shipwrecks litigated in Manila. Jurisdiction was transferred in 1935 to the Philippine Commonwealth, and in 1947 to the Philippine Republic. The US Departments of State, of War, of Commerce, and of the Navy confirmed Manila’s sovereignty over Scarborough in official exchanges in 1937-1938.

From the historical events and legal documents, international maritime law expert Dr. Jay L. Batongbacal concluded: “If Scarborough Shoal was included as part of the archipelago transferred by the US to the independent Republic of the Philippines, then it is arguably Philippine ‘island territory” subject to American defense commitments under the MDT.

“This is important in light of the most prominent means by which China now asserts its claims to the South China Sea: Through the use of lightly armed but large Coast Guard vessels against foreign ships and more recently through reclamations.

(Note that the Chinese Coast Guard recently was placed under the Navy.)

“Under present circumstances, the only thing that prevents legal commitments under the MDT from being invoked are that there has not been ‘an armed attack ... on the island territories ... its armed forces, public vessels or aircraft.’

“If China were to aggressively use its vessels in the same way it did with Vietnam, and ram or sink Philippine vessels, it could qualify as an armed attack that would engage US defense commitments.”

Batongbacal said that in Sept. 2014. His lecture, “Bajo de Masinloc (Scarborough Shoal): Less Known Facts vs. Published Fiction,” is available on imoa.ph, website of the Institute for Maritime and Ocean Affairs.

Avoiding confrontation, President Rody Duterte has shelved the 2016 UN victory. He is employing appeasement. China has shown only increasing deliberate belligerence.

Even if Manila does not reassert sovereignty over Scarborough, China should be careful to not push its luck. Batongbacal said:

“If China were to attempt to install a station on, or undertake reclamation of, Scarborough to transform it into an artificial island, it would amount to nothing less than a permanent taking of a piece of Philippine territory, and therefore be considered a direct threat to the territorial integrity of the country. The Philippines would then be entirely justified in sending public ships to impede or prevent such taking. If China then responds in the same way as it did with Vietnam with respect to the oil rig, by deploying a protective fleet of ships to block and ram such Philippine vessels, then it will thereby be carrying out a threat of an external armed attack while actually taking the shoal.”

That is because the MDT in Article III states: “The Parties, through their Foreign Ministers or their deputies, will consult together from time to time regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial integrity, political independence or security of either of the parties is threatened by an external armed attack in the Pacific.”

Said Batongbacal: “China’s continuing blockade of Scarborough is thus skirting a very fine and dangerous line; it has pushed the envelop to the point that just one mistake will qualify its actions as an armed attack under the MDT. The question that must be asked and seriously considered now is whether and how the Philippine government is preparing for these scenarios and contingencies.”

Triangle-shaped and ten miles wide, Scarborough covers about 150 sq.km., about one-fourth of Metro Manila. It is strategic to Philippine environmental security, food security, commerce, and defense. Only 1.5 to 13 meters deep, the waters ringed by reefs and rocks teem with fish and other marine life. Chlorophyll flow, meaning plankton, connect Scarborough to mainland Luzon. As an outpost, the shoal can guarantee the free flow of air and sea trade. It guards entrances to Manila and Subic Bays.

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