By Yu Wei
For Filipino fishermen near Scarborough Shoal, sovereignty is felt not through diplomatic communiqués but through access: whether they can reach the waters they have long relied on for their livelihood. In recent months, Manila has reported harassment of fishermen near Bajo de Masinloc, the Philippine name for Scarborough Shoal, while satellite images have shown Chinese vessels tightening control around the disputed atoll through patrols, vessel deployments and barriers at key access points.
Dispute for Decades: The Incapacity of the Law
Manila and Beijing held their eleventh bilateral consultation in Quanzhou around the same time, both sides pledging to manage the situation through dialogue. But the real contest over this reef is not happening between the two actors. It is happening inside a stack of documents that neither China nor the Philippines wrote, and within a body of international law that was never built to answer the sovereignty question.
China’s claim draws on three colonial-era instruments: the 1898 Treaty of Paris, under which Spain ceded the Philippines to the United States after the Spanish-American War; the 1900 Treaty of Washington, signed to address what Paris left ambiguous; and a 1930 Anglo-American boundary agreement concerning North Borneo. Beijing argues that these three documents together fixed the western limit of Philippine territory at 118 degrees east longitude, placing Scarborough Shoal outside that boundary. On the other side, Manila’s most prominent rebuttal comes from former Supreme Court Justice Antonio Carpio, who points to earlier Spanish maps and invokes uti possidetis juris, a doctrine developed in the context of 19th-century Latin American independence disputes and now pressed into service in East Asian waters. China, in turn, disputes Carpio’s reading of the Washington Treaty’s geographic scope.
The Philippines’ own position has not been a straight line. Chinese diplomatic statements cite a 1900 letter from a Philippine ambassador acknowledging the shoal sat outside the Paris Treaty boundary, and Manila did not formally abandon language suggesting Scarborough Shoal lay beyond Philippine territory until 1997. The Philippines has since pushed back against Beijing’s characterization of that letter. This exhausting exchange reveals that two governments, both shaped by colonial history, have spent more than a century reading and rereading the same colonial paperwork, finding different answers as political circumstances required.
That instability is not incidental. The current dispute draws its life from ambiguities in paperwork originally written for colonial administration. These documents were designed to settle colonial administrative boundaries between empires, with no Filipino representation in the room and no Chinese government party to the negotiations. Texts written for that purpose are, almost by definition, too thin and too silent on the specifics to bear the weight now placed on them. The incompleteness of international law makes it endlessly available for the aforementioned exhausting reinterpretation.
The Modern Answer
The United Nations Convention on the Law of the Sea (UNCLOS) was designed, in part, to give post-colonial coastal states sovereign authority over surrounding maritime resources. It was passed as a corrective to centuries of imperial encroachment. However, low-value features like Scarborough Shoal were suddenly made strategic, dragging dormant colonial archives back to the negotiating table. But the framework that stirred this contest was not built to settle it. The 2016 arbitral tribunal said so plainly: it would not rule on sovereignty and would not draw any maritime boundary. Legal scholars describe this as the domination of land over sea: maritime entitlements depend on land sovereignty, and when that sovereignty remains unresolved, a tribunal has no jurisdictional basis on which to decide the deeper question.
UNCLOS, therefore, passes the question back to the materials already lying around, which in this case are the same colonial archives too thin for the task now assigned to them. A 20th-century framework built to correct colonial-era injustice, when confronted with the one question it cannot answer, defaults to the very colonial-era materials it was meant to surpass. Together, these instruments have produced a dispute conducted inside a vacuum that neither actor nor any existing legal body has the capacity to fill. Most international commentary has focused on tracking each move and countermove between Beijing and Manila, while missing that the instruments through which the dispute is conducted are themselves spinning in the same void.
That legal vacancy will not disappear if one side prevails. The structural gap at the center of international law will remain, available to whoever finds it useful next. Scarborough Shoal, in that light, is more than a territorial claim: it is a test of the underlying legal architecture’s capacity to resolve sovereignty questions. If the underlying legal architecture has no real capacity to resolve sovereignty questions like this one, then winning the argument over who controls the territory will only change who holds the microphone, without changing the script.
Who Gets Left Out
The fishing communities who have lived and worked in these waters for generations, Filipino and Chinese alike, appear in none of the treaties, tribunal rulings, or diplomatic notes. Their own history of the shoal carries neither legal weight nor diplomatic eloquence. Yet the documents and doctrines that shape the dispute exert a direct impact on their livelihoods and future.
For policymakers, Scarborough Shoal is a test of sovereignty and maritime rights. For fishermen, it remains a question of access, survival and whether the waters that sustained their families for generations will remain open to them.
Yu Wei is a political science and communication researcher whose work focuses on international relations, geopolitics, postcolonial discourse, gender politics, and comparative political interpretation across Chinese, American, and Middle Eastern paradigms. Her research has been presented at international academic conferences including NCA, IAMCR, and NASSH.
