The paper then criticizes China’s historical claim over the Scarborough Shoal. It says that a historical claim does not equal a historical title in international law. A historical claim on its own is not a sufficient basis for acquiring a historical title, and demonstrating long usage is also not enough.
It says that such usage must be open, continuous and acquiesced to by other states. It says that other states’ silence about a claim is not acquiescence under international law, and that acquiescence must be affirmative such that other states recognize the claim as a right on the part of the claimant and agree that other states have a duty to respect it. The paper concludes that the international community has never acquiesced to China’s historical claim.
Taiwanese and Chinese fishermen have long made use of the shoal and the waters around it. Other nearby countries may have never discovered the shoal, in which case there can be no question of the usage of it being open and acquiesced to by other states.
Besides, until recently, the shoal and its adjacent waters had never been an area of contention among surrounding countries. When the Republic of China (ROC) announced the inclusion of the Macclesfield Bank (Zhongsha Islands, 中沙群島) in its territory in 1947, the Philippines did not voice opposition. At the time, many members of the international community recognized the islands belonged to the ROC. Many maps around the world can be held up as evidence that they do belong to the ROC.
On Sept. 2, 1956, and in February 1957, the US was granted permission by the ROC to carry out topographical surveys around the Scarborough Shoal, the Macclesfield Bank and other areas.
It was not until the mid-1960s that the Philippines made its own claim to the shoal, prompted by the idea that there could be oil and natural gas reserves in the area. So there is some doubt about the Philippines’ motive for staking a claim.
With relation to the Scarborough Shoal and the Spratly Islands, no matter what kind of legal claim the Philippines puts forward, it cannot go beyond the territories included in the Treaty of Paris.
The Treaty of Paris is internationally recognized and has long been implemented in the South China Sea. If the Philippines appropriates the Scarborough Shoal and the Spratly Islands on the pretext of “effective jurisdiction,” it will be guilty of the flagrant occupation of another country’s territory.
Chen Hurng-yu is a professor in the Graduate Institute of Asian Studies at Tamkang University.
Translated by Julian Clegg