Baselines Bill: The bigger picture.

Thursday, March 5, 2009

Much is being said about the Philippine Baselines Bill, especially now that it has been approved by a bicameral committee of Congress.  Some feel that the bill is a sell-out on the part of the Philippines. Some, on the other hand, fear that the bill might cause a “shooting war” with China.

But what is important is for us to really understand what the bill is about, especially now that the fears and the indignation has somehow blurred our thoughts and understanding of the issues surrounding it.

Our colleague Patricio Mangubat was among the first to raise alarm that with this bill, the Philippines has effectively given up its claim on Scarborough Shoal and the Kalayaan Islands Group (KIG). In an entry posted on this website, Patricio said that the bill has “effectively excluded the Kalayaan Islands and Scarborough isles from Philippine territory.”

This is inaccurate. Senate Bill 2699 does not exclude the two groups of isles from the national territory. What it does is exclude them from the main archipelago and identify them as a regime of islands.

The regime of islands doctrine is grossly misunderstood. Most fear that the label weakens our claim to several of the disputed territories. It doesn’t help that even those in the Cabinet seem to be equally confused about it. Palace spokesman Anthony Golez, for example, has said that a regime of islands  is “a group of islands whose ownership is being contested by the Philippines and other claimant countries.”

But actually, regime of islands is defined as a group of islands detached from the main territory of the state but over which that state enjoys full ownership and sovereignty. Just like, for instance, Hawaii, which is not part of the American mainland but is under the sovereignty of the United States.

In fact, the United Nations Convention on the Laws of the Seas (UNCLOS) treats regimes of islands in the same way as it does the main archipelago, granting it its own 12nm territorial sea, 24nm contiguous zone and 200nm Exclusive Economic Zone. These benefits are enjoyed, for example, by the Falkland Islands which the United Kingdom has classified under UNCLOS as a regime of islands.

Now why did Congress detach those two groups of isles from the main territory instead of including them as part of the main Philippine archipelago as enclosed in the baselines?

For the Kalayaan Islands Group, there are, to my understanding, two reasons.

One, UNCLOS states that “the length of such baselines shall not exceed 100 nautical miles except that up to 3 percent of the total number of baselines enclosing the archipelago may exceed that length, up to a maximum of 125 nautical miles.” Including the KIG in the main baselines violates this.

Two, the Philippines has in 2002 signed the Declaration on the Conduct of Parties in the South China Sea, which bars claimants from doing acts that could get in the way of peacefully resolving the sovereignty issues. I must admit that I have not read this Declaration, but it is said that including the KIG within the main baselines violates this agreement.

I have a problem, however, with labeling Scarborough Shoal as a regime of islands. This is because the Scarborough Shoal counts as one of the exceptions to the UNCLOS’ rule on regimes of islands. According to UNCLOS, “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

Senator Antonio Trillanes, a brilliant former Navy officer who knows more about maritime affairs than any other members of Congress, said: “The Scarborough Shoal [must be included in] the baselines primarily because its distance from Luzon is less than the 125nm limit. With this, our country stands to gain approximately 14,500sq nm of EEZ and continental shelf.”

He further said that “we would be depriving ourselves of the EEZ and continental shelf of Scarborough Shoal if it would be designated as a regime of islands.”

Now, I don’t know why the senator supported this bill.

But at any rate, labeling the Scarborough Shoal and the KIG as regime of islands, contrary to the alarmists’ assertion, will not jeopardize Philippine sovereignty over them. In fact, it further cements the country’s ownership of these islands.

This is why the Chinese have protested the passage of this bill in the Congressional Bicameral Committee.

Warning that the bill would have serious implications on Philippine-China ties, the state-run Xinhua news agency reiterated that the Scarborough Shoal and the KIG are part of the territory of China.

Veteran journalist Ding Gagelonia, in a recent post, warned the Arroyo government against signing this bill. He said it is very confrontational.

He cites his unnamed source, a former under-secretary of Foreign Affairs no less, who said that “what Congress has done here is an attempt to revise the Philippines’ territorial domain beyond the coverage of long-existing international treaty limits.

“Those are the very limits provided in the Treaty of Paris at the turn of the millenium (?) and cannot be undone unilaterally by any nation.”

While I probably know nothing about International Relations compared with Ding’s source, I think he conveniently forgot that we have, in fact, unilaterally undone some provisions of the Treaty of Paris, which was signed between Spain and the United States on December 10, 1898. President Ferdinand E. Marcos, in June 1978, had issued Presidential Decree 1599 formally annexing the KIG as a municipality of Palawan and placing it under custody of the Department of National Defense.  This decree, as far as I know, is still in effect.

I disagree with Ding. I don’t think this bill, if signed into law, will result to a shooting war. What China said in its statement is what one expects from a claimant state to the two territories in question. I don’t think it qualifies as a serious threat. This is because China’s interest in the Philippines, as well as in other countries of the ASEAN, has become deeper in recent years. I don’t think China’s diplomats view South China Sea in the context of 19th Century gunboat diplomacy.

And I have long maintained that China’s control of the South China Sea will not be desirable for the region since the advanced economies of South Korea and Japan, which matters a lot for the American economy, rely on its sea lanes for their oil exports. It is, therefore, in the interest of those Northeast Asian countries, and of the United States, to keep China at bay.

But more than China’s diatribes, what we should appreciate are the positive implications of this bill, which would in the long run contribute a lot to us economically and could in fact enhance our position in the South China Sea.

Under the UNCLOS, archipelagic states are entitled to an Exclusive Economic Zone (EEZ) where they have the privilege explore and exploit all natural resources, including marine life and energy (oil and natural gas). The EEZ covers 200nm as measured from the baselines.

But if the states’ continental shelf- or the natural prolongation of land under water- exceeds 200nm, the state can claim an EEZ beyond beyond 200nm and up to the end of the continental shelf provided that it falls within 350nm from the main baselines. This is called the extended continental shelf.

States are required to file their claims, backed up by scientific data, for extended continental shelf before the UN Commission on the Limits of the Continental Shelf (CLCS). The said Commission will then analyze these claims and approve them if they are deemed as scientifically valid.

However, if we file a claim that is inconsistent with UNCLOS (like if we, as what Patricio and others want, include KIG within the baseline even though UNCLOS says baselines must be limited to 125nm), the CLCS would not uphold our claim. Which is why we must be careful as well in “asserting” our claims on these islands.

Areas where the Philippines could claim to be the limit of its extended continental shelf, according to geological experts, are the Benham Rise, an extinct volcanic ridge east of Bicol, the Scarborough Shoal, which sits on a mid-oceanic ridge and, yes, the Kalayaan Group of Islands.

In a report by Vera Files, the University of the Philippines Institute of International Legal Studies said that there are “huge amounts of oil, natural gas, minerals and polymetals, such as gold, silver, iron and nickel, off the seas of the KIG [that] could ‘greatly contribute to the growth of the economy and uplift the socio-economic condition of the Philippines.’”

But more than this economic benefit is an added leverage on the part of the Philippines in the context of its South China Sea claims.

In the 1990s, the Philippines seemed helpless in the naval skirmishes against China in Scarborough and the build-up of Chinese facilities in Mischief Reef off Palawan. Then President Fidel V. Ramos initially asked the United States to pledge support for the Philippines in case of shooting war in the South China Sea in line with the Mutual Defense Treaty (MDT).

But unlike those of the NATO, the provisions of the MDT do not require instant retaliation from the United States in case of attacks against the Philippines. My fear then is that if an attack occurs in the disputed waters, the Americans can easily bail out and say that, since the issue of sovereignty in the area where the attack occurred is not yet resolved, the attack could not be considered as against Philippine territory. But if the CLCS upholds the Philippine claim, the Americans will have a hard time invoking this excuse.

And this kind of leverage can be used in many other undertaking, not just in the context of the MDT, as well.

It is therefore vital for the Philippines to file a claim on the extent of the limits of its continental shelf to the UNCLCS.

The problem, however, is that there is a deadline for submission of the claims. It is on May 12, 2009, roughly two and a half months from now. If we miss the deadline, we would lose our claim forever.

And before we can file a claim, we must first determine our baselines from which we would measure the limits of our continental shelf.

Therefore, we must not waste a single time on the passage of this bill into law.

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Graphics from Vera Files and Wikipedia.

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Originally posted February 19, 2009 on Filipino Voices.

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