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Tuesday, December 5, 2023

The Philippines baselines law (Part 1)

"Here are the words of the late Senator Miriam Defensor-Santiago."


To bring clarity to the muddled and maddening exchanges between President Duterte and his critics over the United Nations – Permanent Court of Arbitration arbitral award on the country’s petition contesting China’s “nine dash line” claim in the South China Sea (SCS)/West Philippine Sea (WPS),  I have decided to give space to the 2009 sponsorship speech of then Senate Foreign Relations Chairperson, Miriam Defensor Santiago, urging the passage of The Philippine Baselines Law. 

Reconciling the features of the counterpart bill filed in the House of Representatives by then Ilocos Norte Congressman Ferdinand “Bongbong” Marcos, Jr., the said law needed to be deposited with the UN Secretary General to ensure recognition of our maritime jurisdiction and establish our maritime boundaries with neighboring coastal states. That the law strengthened our situation as a coastal state under UNCLOS and had such a strong impact on our claims over contested areas in the vast waters of the SCS/WPS, it was immediately protested by

China and Vietnam upon its signing by then President Gloria Macapagal Arroyo on March 10, 2009.

Herself an eminent scholar and known expert on international law, Senator Defensor-Santiago skilfully navigated the need to strengthen our standing as an archipelagic state and the conditionalities provided for under the UN Convention On The Law Of The Sea (UNCLOS) ratified by most UN members with the exception of the United States which, for still mysterious reasons, has decided not to be bound by that international convention but has injected itself at the center of almost all maritime controversies including the one we had with China. In any event, now that we have this arbitral award and in order to avoid further muddling the WPS issue since the critics cannot offer any sound solution on how precisely to enforce this award with all the consequences it brings, it maybe time to take a second look at the 2009 Baselines Law and ascertain if there is a need to amend it to accommodate the terms of the ruling. No less than former SC Associate Justice Francis Jardeleza who was the Solicitor General during the arbitral proceedings and is credited with the critical work towards the granting of the award has pointed out that the current law may need to be amended to have it compliant not only with UNCLOS  but with the ruling itself.

It is our hope that the well argued, scholarly sponsorship speech of Senator Defensor-Santiago will enlighten one and all as we move on and make the SCS/WPS a zone of peace and development in our time. Here goes:                 

“Ladies and gentlemen of the Senate:

Your Committee on Foreign Relations has the honor to sponsor Senate Bill

No. 2699, which I shall refer to as the 2009 baselines bill is urgent.

“It is urgent that we should immediately pass this bill, because the United Nations, under the UN Convention on the Law of the Sea, a.k.a. Unclos, has set the deadline of 13 May 2009 to submit our claim folder for an extended continental shelf. Our claim, supported by scientific and technical data, should be submitted to the Commission on the Limits of the Continental Shelf, through the UN Secretary-General.

“The continental shelf, which is the underwater natural prolongation of a land territory, is measured from the baseline. Under international law, the baseline is the line that divides the land from the sea, by which the extent of a state's coastal jurisdiction is measured. Hence, unless we pass a new baselines law, our present law will not be Unclos-compliant. No modern baselines law, no extended continental shelf.

“We are governed by the Unclos, for two reasons. First, our Constitution adopts the generally accepted principles of international law as part of the law of the land. Second, the Philippines is a state party to the Unclos. Parenthetically, in a prior speech, I explained that there are serious questions on whether the Philippines can be considered a party to the Unclos. Some states claim that when the Philippines signed the treaty, we made so-called "impermissible reservations," which allegedly disqualify us from the treaty. But to simplify our Senate debate, we shall have to assume that the Philippines is a state party, and is therefore bound by Unclos.

“The Unclos, Article 76, provides:

8. Information on the limits of the continent shelf beyond 200 nautical miles from the baselines . . . shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf . . . .

9. The coastal State shall deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf.

Archipelagic Doctrine Under Unclos

Under the Unclos, the Philippines is considered an archipelagic state. As such, under the Unclos, Article 47, the Philippines has a right to draw its archipelagic baselines, from which we start to measure the extent of our maritime territory.

It provides, as follows:

1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and … an area in which the ratio of the area of the water to the area of the land is between 1 to 1 and 9 to 1.

“The Philippines already has at least three laws defining our baselines.[1] But it is imperative to amend the present law for two reasons. First, as a state party, we are obliged to comply with the Unclos. Second, it is only by defining our baselines that we can ensure acceptance of our maritime zones by all other states.

“Under Unclos, we are entitled to exercise certain powers over our maritime zones, with such powers consisting of near-absolute sovereignty over the waters nearest to the shore, and decreasing proportionately as the waters go farther from the shore. These zones are as follows:

“Territorial sea of 12 nautical miles from the baselines. The state exercises virtually absolute sovereignty. The two main exceptions are the right of innocent passage by foreign ships and the right of transit passage, by foreign craft in strategic straits.

Contiguous zone, consisting of an additional 12 nautical miles from the baseline; in other words, 24 nautical miles from the baselines. The state has power to enforce customs, fiscal, sanitary, and immigration laws, such as those that prohibit smuggling or illegal immigration.

“Exclusive economic zone (EEZ) beyond and adjacent to the territorial sea, which may not extend beyond 200 nautical miles from the baseline. The coastal state has sovereign rights over natural resources and other economic uses. But where the coastal state does not have the capacity to harvest the entire allowable catch, it is obliged to give other states access to the surplus of the allowable catch.

Continental shelf, which is either the natural promulgation of the land territory to the outer ridge of the continental margin; or 200 nautical miles from the baseline, whichever is greater. The continental shelf may extend 200 nautical miles until the natural promulgation ends, but it shall not exceed 350 nautical miles. The state has the right to harvest mineral and non-living resources of the seabed and subsoil of its continental shelf, to the exclusion of the other states.

“Extended continental shelf, up to 350 nautical miles.

“All these maritime zones of the state are measured from the archipelagic baselines. If we fail to comply with the May deadline, we stand in danger of forfeiting our claim to an extended continental shelf.. The forfeited area will form part of the International Seabed Area, which is considered "the common heritage of mankind" or, the forfeited area may go to a neighboring state which filed, and was able to establish, its ECS claim.

(Continued on Monday)

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