Zugzwanged in Panatag Shoal
On November 26, 2024, the Philippine’s Maritime Zones Act (PMZA) took effect, declaring that Panatag Shoal shall have a territorial sea but omitting to define its baselines. In response, on December 5, 2024, China deposited with the United Nations (UN) a Maritime Zone Notification (MZN) of the geographical coordinates and chart of the baselines for the territorial sea (TS) of Panatag Shoal. China’s MZN pre-empted the Philippine MZA.
More than that, China’s MZN reconfigured the territorial dispute in the South China Sea (SCS), paving the way for the direct involvement of its naval warships and aircraft in skirmishes with Philippine Coast Guard (PCG) ships and fishing boats. The August 11 incident, in which a Chinese People’s Liberation Army naval destroyer and a Chinese Coast Guard patrol ship collided while trying to pin down the PCG’s much smaller BRP Suluan, is just the opening salvo. The collision reportedly took place around 19.5 kilometers east of Panatag, well within the shoal’s TS.
Per the 2016 SCS Arbitral Award (AA), Panatag is a triangular-shaped reef around which rise above the water at high tide a collection of rocks – six in all (marked with copper nail geodetic markers by the Philippines in a 1997 survey as Rocks A to F, submitted as Annex 27 of the Philippine Memorial to the SCS Annex VII Arbitral Tribunal). Under Art. 121(3), United Nations Convention on the Law of the Sea (Unclos), rocks are High Tide Elevations (HTEs) entitled to a TS but not to an exclusive economic zone and a continental shelf.
China had always considered the shoal as part of its Zhongsa Qundao (ZQ) –one of four self-declared Chinese SCS “island groups” or offshore archipelagos. ZQ is “more accurately characterized as a vast ocean area with a few tiny islands on its easternmost edge, on Scarborough Reef”, according to the most recent US Limits in the Seas Report on China’s SCS claims post-2016 (No. 150, January 2022, p. 17).
China’s MZN is unprecedented in two ways. Firstly, by treating Panatag as a feature with a TS around it, the MZN untethered the shoal from ZQ. At least for ZQ, China now implicitly accepts a key ruling of the AA: that no claimant state may constitute an offshore archipelago – in whole or in part – in the region (paras. 574-76). At the most, the maritime features found there are HTEs or small features that are above water at high tide that only generate a TS, outside of LTEs.
China’s decision to detach Panatag from ZQ underscores the shoal’s strategic importance. It explains why – against Unclos rules – China’s MZN drew the coordinates and corresponding belt of the shoal’s territorial sea the way it did, looping straight baselines around Panatag’s outer ring to enclose all of its six constituent rocks.
Straight baselines may only be drawn around islands or along deeply indented coasts, or around special geographical features like a fringe of islands along the coast (Art. 7). It may not be used on the shoal, a teeny-weeny maritime feature. Even with the six rocks around it that are permanently above water, Panatag does not qualify as an offshore archipelago entitled to straight baselines to mark out archipelagic waters (Art. 47).
Secondly, China’s MZN transformed the area inside the shoal – including its lagoon, where fish stock of many kinds is most abundant –into internal waters.
But it violates the AA’s ruling that all the waters of the shoal are territorial, and subject to the right to artisanal fishing (AF), not just of Filipinos but also of the Vietnamese, Taiwanese, and mainland Chinese (para. 805). China’s blockade of the shoal denies Filipino fishermen their AF in the lagoon (paras. 810-812).
No amount of Philippine militarization may make up for the PMZA’s timidity, which merely alluded to certain HTEs in the SCS as having a TS without actually drawing their baselines. We missed the golden opportunity to immediately consolidate our title to Filipino HTEs after the AA broke up the SCS as a unity of islands into individual rocks. We failed to forthwith pass a law that (1) specifically identifies and names all our claimed HTEs in the SCS; and (2) establishes geographical coordinates for their respective territorial seas and draws normal baselines around them.
The proper method to establish the shoal’s TS is to construct individual 12-nautical mile belts from the normal baselines of each of its six rocks, measured from the low-water line as shown on official nautical charts (Art. 5). These belts would produce six overlapping TS arcs. The overlaps may then be merged into a single continuous territorial sea limit around the shoal. The waters within this irregular ring of rocks and reef would constitute TS, with no legal basis under Unclos to classify them as internal waters.
But China’s MZN claims the shoal’s lagoon as subject to full sovereignty over waters and airspace, excluding AF and innocent passage. Expect more aggressive Chinese policing of the shoal’s waters, with the Chinese navy and air force now involved. China’s MZN set up a Zugzwang in Panatag.
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Melissa Loja and Romel Regalado Bagares are independent Filipino scholars of international law.
