January 27, 2009
Sponsorship speech on The 2009 Baseline Bill
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.
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. 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:
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.
The present baselines bill contains the following features:
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:
Congress has no choice but to pass a new baselines bill. However, your Committee emphasizes three immediate consequences of a new baselines bill:
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.
I shall now summarize this sponsorship speech with a power point presentation.
 1978 PD No. 5096; 1961 R.A. No. 3046; and 1968 R.A. No. 5446.
Thursday, September 29