By Chit Estella
April 9, 2008
MALACANANG is at loggerheads with Congress on how best to establish the country’s new archipelagic baseline to conform to international law, but without giving up its claim over resource-rich Spratly islands and other disputed territories that fall within its extended continental shelf.
Four baseline options reflecting these conflicting views are still being debated with no compromise yet in sight. What with barely a year left before the May 13, 2009 deadline for filing the Philippines’ claim for an extended continental shelf (or the underwater extension of the land) pursuant to the United Nations Convention on the Law of the Sea (UNCLOS).
There is no deadline for the filing of a country’s archipelagic baseline with the UN, but having a clear baseline will bolster a country’s claim over its extended territory. It will also be the basis for measuring all maritime regimes or zones: territorial sea (12 nautical miles from the baseline), contiguous zone (24 nm), economic exclusive zone (200 nm), continental shelf (200 nm) and extended continental shelf (350 nm).
The four archipelagic baseline options being considered are:
Option 1. Enclose the main archipelago and Scarborough Shoal only while the Kalayaan Island Group (KIG) is treated as a regime of islands under Article 121 of UNCLOS.
Option 2. Enclose the main archipelago then treat Scarborough Shoal and KIG as regimes of islands.
Option 3. Enclose the main archipelago and KIG then treat Scarborough Shoal as a regime of islands.
Option 4. Enclose all three–the main archipelago, KIG and Scarborough Shoal.
The House of Representatives passed on second reading last December House Bill 3216 incorporating Option 4 while the Commission on Maritime and Ocean Affairs (CMOA) under the Office of the President is batting for Option 2. The Senate has yet to act on the baseline bill filed by detained Sen. Antonio Trillanes IV.
“Our main objective here is to correct our baseline to make it acceptable to the international community and UNCLOS,” explains CMOA Secretary General Henry Bensurto. “If we are to legislate a baseline that is not consistent with UNCLOS, then we are back to square one because we can’t be recognized anyway.”
He cites two primary reasons to justify the amendment of the country’s baseline law.
One, it is not consistent with UNCLOS, the result of deriving geographic positions from then existing maps and not by geodetic methods. Also, the length of the baseline in Moro Gulf is 140 nm, which exceeds the 125 nm maximum allowable length of baseline under Article 47 (2) of UNCLOS.
Two, the selection of basepoints is not optimal. At least nine basepoints can be deleted from the baseline system to gain a bigger area of archipelagic waters.
Bensurto says that Option 2 is “the official position of CMOA and the Executive” adopted only last December. This option simply entails correcting what needs to be corrected in the country’s baseline, but without giving up any claim on KIG, Scarborough and other disputed territories.
“That’s why we’re applying the regime of islands and normal baselines, which essentially means whoever owns the islands also owns the waters around it,” Bensurto adds.
He further explains Option 2: “The normal baseline model is you identify the low water mark for each island and you follow the configuration of the coast. Each island that you own will generate its own maritime jurisdictions. Contrary to the view that we are giving up any claim, we’re not.” (See attached CMOA map.)
According to Bensurto, the baseline is not a mode of acquiring ownership available under international law. The bases of the country’s claim on KIG are “discovery and occupation,” and Presidential Decree 1596 which has been submitted to the UN Secretary General. As for Scarborough Shoal, he says the basis for the country’s claim is its “historic legal title over it.”
What should have been a simple technical problem in the old baseline law that needs to be corrected has become a complicated territorial issue, he observes. “All that we have to do is really make adjustments to the basepoints and baselines, ergo you have a baseline with just moving some basepoints a little bit and then you have to increase the number of baselines so that the others that are 125NM will be justified.”
The CMOA has tapped the expertise of former justice secretary Estelito Mendoza in drafting the Philippine claim. Mendoza was a member of the Philippine delegation to the UN Conference on the Law of Sea, headed by the late senator Arturo Tolentino, that developed and pushed for the concept of archipelagic doctrine.
This doctrine, Bensurto says, considers all the islands and interconnecting waters as one geographical entity. “There is unity of the islands and the waters, and the waters are no longer seen as something dividing but something that connects all the islands.”
The CMOA is chaired by the Executive Secretary with the Justice Secretary and Foreign Affairs Secretary as vice chairs. Its members are the departments of national defense, energy, environment and natural resources, budget and management, transportation and communications, tourism, trade and industry, National Security Council, Bureau of Fisheries and Aquatic Resources, National Mapping and Resources Information Authority (NAMRIA), and the Philippine Coast Guard.
Loopholes in baseline bill
In establishing its baseline, a country has to first identify the outermost island, and then identify its outermost point by identifying the low water mark.
Bensurto explains how this is done. “You wait for the low tide, then identify at what point the sea recedes. That’s the low watermark. Doon ka gagawa ng mohon.”
In House Bill, he notes that lawmakers included KIG in the country’s baseline by designating Sabina Shoal as basepoint. It is the outermost island or shoal in the KIG that is within the 100-nm limit set by UNCLOS.
But Sabina Shoal is a low tide elevation, meaning one can see it during low tide but disappears during high tide. The problem with this is that a low tide elevation cannot be used as a basepoint to connect to the main archipelago, Bensurto stresses.
“The reason why it is an issue is because we are trying to enclose it (KIG) with the same baseline,” he notes. “No problem with regime of islands because you do not connect (to the main archipelago).”
An alternative basepoint is the Iroqui reef in the KIG. However, if it is used as basepoint, the baseline will violate UNCLOS because it is more than 100 nm away from the main archipelago, Bensurto says.
In the case of Scarborough Shoal west of Zambales, which the pending bill also claims as part of the country’s baseline, the problem is different. CMOA believes that it will violate the UNCLOS requirement that states: The baseline must not depart to any appreciable extension from the general configuration of the archipelago.
So what happens if the House-sponsored baseline bill is passed into law?
“You have a baseline that is not acceptable (to UNCLOS) and a baseline that you cannot defend,” Bensurto says. “Our law enforcement agencies will be confused at which point should they shoot a passing foreign ship.” — Jennifer Santillan-Santiago, Ellen Tordesillas, Yvonne Chua, Chit Estella, Booma Cruz, and Luz Rimban