The Philippine Baselines Law

"Once again I yield my space to the words of the late Senator Miriam Santiago."

(Part 2)

Proceeding from our June 11 column, it is worth noting that the 2009 Baselines Law has served us well even as China and Vietnam lodged protests against its adoption. There was relative peace in the vast waters of the SCS/WPS, our fishermen were at liberty to fish in the common fishing ground called the Scarborough Shoal and we firmed up our position vis-a-vis the Kalayaan Island Group (KIG). That relative calm in the waters, as it were, got disturbed and made the situation even more problematic after we got tricked to move out of the shoal allowing China to seize and build on it. And now we are left with pointing fingers among ourselves and allowing other interests outside of the claimants and our ASEAN neighbors’ concerns. Indeed, it is a pity we have to be in this impasse now as the bill sponsored by Senator Defensor-Santiago had all the features of a winning position until we blew it. Sayang. 

In any event, we proceed with that scholarly sponsorship speech, as follows:          

“Main Features

“The present baselines bill contains the following features:

“It amends prior baseline laws which are not Unclos-compliant.

“By establishing a new baseline, it serves as official notice to all states of the extent of the limits of Philippine maritime zones.

“It includes a ‘no-prejudice’ clause in Section 3, which provides: ‘This Act shall be without prejudice to Philippine dominion and sovereignty over all portions of the national territory as defined under Article 1 of the Constitution of the Republic of the Philippines and by applicable laws.’

“It encloses within three long baselines the main archipelago only. The contested land territories which we call the Scarborough Shoal and the Kalayaan Island Groups (or KIG) are treated under the ‘regime of islands’ provided for by the Unclos, Article 121. This means that each group of islands is entitled to claim its own maritime zones, and are not enclosed within the archipelagic baseline.

“Regime of Islands

“The Unclos, Article 121, defines an island as a naturally formed area of land, surrounded by water, which is above water at high tide. Under the "regime of islands," each island has its own territorial sea, contiguous zone, EEZ, and continental shelf.

“We are constrained to observe the "regime of islands" principle with respect to the Spratlys, because it is a flashpoint in Asia, subject to conflicting territorial claims by several Asian countries. The basic source of conflict is the expectation that underneath the Spratlys seabed lie some 200 barrels of oil, natural gas, minerals, and polymetals, such as gold, silver, iron, and nickel. In the 1990s, the Philippines , China , and Vietnam had near skirmishes around Mischief Reef.

“To avert a military crisis in the Spratlys, the Asean Declaration on the South China Sea was signed in Manila. The state parties are: the Philippines, Brunei-Darussalam, Indonesia, Malaysia, Singapore, and Thailand. The Declaration urged the parties to resolve all sovereignty and jurisdictional issues pertaining to the South China Sea by peaceful means.

“Ten years after the first South China Sea Declaration, the Asean governments on the one hand; and China, on the other hand, signed the 2002 Asean-China Declaration of Parties in the South China Sea. The 2002 Declaration is a landmark agreement that aims to reduce tension among the claimant states, by maintaining the status quo and temporarily suspending issues of ownership.

“There are three important reasons why the bill adopts the "regime of islands" principle:

“First, it has the advantage of avoiding conflicting basepoints with other claimants to the Spratlys. Conflicting basepoints is the reason why your Committee decided not to adopt other bills. The Committee takes the view that if a modern baselines bill includes conflicting basepoints with other claimant states, this would certainly be a source of diplomatic strain with such states as China , Vietnam , Malaysia , and Taiwan .

“Second, the ‘regime of islands’ principle increases the size of our archipelagic waters and EEZ by about 76,518 nautical miles over existing laws.

“Third, the pending bill does not deviate from the natural shape of our archipelago, thus complying with Unclos, Article 47, para. 3, which provides that "the drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago."

“Consequences

“Congress has no choice but to pass a new baselines bill. However, your Committee emphasizes three immediate consequences of a new baselines bill:

“The Philippine Coast Guard has to rise to the challenge of patrolling our immense archipelagic waters. Under Unclos, foreign ships have the right of innocent passage and the right of transit passage in strategic straits. We have to stand guard that these rights of foreign vessels are not used as a cloak for the entry of international terrorists, intruders, or other enemies.

“The executive branch should conduct an intelligent study of a potential conflict between the Philippine Constitution and the Unclos. On the one hand, the Philippine Constitution, Article 1 provides that the Philippine government has sovereignty or jurisdiction over "its territorial sea, the seabed, the subsoil, the insular shelves and other submarine areas." On the other hand, Unclos provides in Article 62 on the EEZ: Where the coastal state does not have the capacity to harvest the entire allowable catch, it shall . . . give other States access to the surplus.

“The executive branch should finish hydrographic and geoscientific studies that support our country's measurement of our extended continental shelf. Congress has appropriated P1.7 billion to the National Mapping and Resource Information Authority (Namria) for this purpose.

“Conclusion

“We have to pass this bill so as to meet the UN deadline of 13 May 2009. If we enclose within our archipelagic baselines the contested Spratly Islands and Scarborough Shoal, we achieve nothing, because no domestic law has the power to override international law. If the baselines bill includes the contested islands inside our archipelagic baselines, our law might be upheld by the Philippine Supreme Court, but it will certainly be rejected by an international court or tribunal.

“The very core of this bill is that it rejects moves to include the contested islands in drawing up our modern baselines. Otherwise, the bill would not only be useless but also harmful, because we would incur the unnecessary ire and possible retribution of our neighbor states, who are also claimants. The ‘regime of islands’ principle adopted by the bill sufficiently protects our claim.”