Baselines Bill: the bigger picture.
February 19th, 2009 by JMuch 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.
—–
Graphics from Vera Files and Wikipedia.
February 19, 2009 at 10:30 pm
Your blog entry is well-researched, well-written, and you present your points of view in a level-headed manner.
I especially like where you identify disagreements over terminology (e.g. regime of islands) as a common source of dispute.
I am looking forward to more of your blog entries as they elevate the content of Filipino Voice independent of whether one agrees or disagrees with your conclusions. Good job!!!
February 19, 2009 at 10:34 pm
Thanks.
February 19, 2009 at 11:31 pm
Talking is better than shouting, and shooting…
February 19, 2009 at 11:34 pm
I agree with UP n, bravo on your blog post!
February 20, 2009 at 1:15 am
third the motion. indeed, very refreshing to read a post that reflects sober, erudite academic writing, minus the self-marketing.
February 20, 2009 at 2:28 am
J,
As I previously responded to you own missive in my earlier entry:
”
We are on the same page, you will realize . This is the reason attention is being drawn to the bill before it is signed into law.
Remember that blasted MoA-AD?
Public condemnation on the ground and in the blogospehere forced the government of the day to pull back from the edge one month after announcing the supposed “breakthrough.”
The last I will be is a warmonger. I’m raising my two lovely kids. :)”
Did you read me warnuing of shooting war? In the first place do you really think China would go to the extent of declaring war against us?
In these day and age with Beijing having joined the capitalist ‘road’?
In GMA’s case, her own time is coming to an end and history will deak with her soon enough. That deadline you cite is in truth and reality a non-deadline, illusory even…. and would really not straight jacket any of our archipelagic prerogatives.
February 20, 2009 at 2:44 am
Further J,
You say I said “very confrontational”???
Kindly don’t misquote my own entry.
February 20, 2009 at 3:01 am
i join the others in congratulating you, j, for an informative, non-partisan blog post that puts the matter in a clearer perspective.
since day one of philippine self-governance, we have renounced war as an instrument of national policy. we have taken this principle to heart that, except for a largely effete sabre rattling by a delusional marcos regime, we have taken our ability to defend ourselves, let alone wage war to preserve our national interest, for granted. we have contented ourselves with an armed forces composed mostly of ill-fed, ill equipped, ill-paid, ill-trained “jologs” whose bravery and patriotism may be unassailable but whose ability to defeat the enemy is definitely open to question.
we have contented ourselves with second-rate weaponry, aircraft, boats, and hand-me-downs from foreign “allies”, including spare parts and technical knowhow to maintain them. this is so in spite of the fact that we seem to be not lacking in capable scientists, researchers, technicians and experts, in addition to enormous amount of natural resources, to produce our own, or at least improve on what we have. i think we have never been able to develop the resourcefulness, pragmatism, self-reliance, and independent spirit required of a great people.
formosa, aka taiwan, is a tiny rock in the middle of the pacific, a relatively small fraction of the philippines in both territory, natural resources and population. taiwan could have been swallowed up and digested by gargantuan china, with or without western intervention, in a blink of an eye, if it were a “pushover”. but it was not a pushover because chiang-kai-shek and succeeding leaders have seen to it that they could defend themselves with men and weaponry that would make any aggressor think twice before starting a fight. same is true with israel vis a vis the arab world.
the point is, we may win all our legal claims but who’s gonna enforce them? the u.n. is nothing but a politicized debating society, strapped for cash. it seems each member-nation acts solely according to what it thinks is best for its own parochial interest. this is evident even within our regional alliances such as asean or seato. meanwhile, the international court of justice is an adjudicatory body that has virtually no effective enforcement mechanism for its verdicts.
in the final analysis, we have two choices. either make ourselves strong enough to fend for ourselves in the global arena so we can play with the big boys, or do nothing and remain in “third-world” status, just relying on the humanitarian kindness and generosity of the dominant nations of the world. btw, the latter is not always there unless such humanitarian considerations happen to coincide with their national interest.
February 20, 2009 at 3:30 am
Wait a minute. Some of the guys here are arguing both sides of the issue, in the process getting confused in their own arguments.
I’m not into the practice of debating with my alter ego, so would you please make your positions clear in your first post.
Before you yell at me, its not you I’m talking about, Bencard. :)
February 20, 2009 at 3:49 am
to ding: You did say these :
to J: thanks for this detail : …. 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.
I agree with your position for Pinas to take steps now. China shows displeasure; that is to be expected [something about the smell of oil and other minerals from that chunk of territory] and not a good enough reason to relinquish a claim on territory that belongs to Pinas.
Others disagree —- such is life. Pinas Congress has acted; we wait for GMA.
February 20, 2009 at 4:15 am
A legal claim is very important.
We all know that China could have overrun those islands years ago — we never had the military capability to stop then; not then, and not now. Filipino blood would get spilt but there is no stopping China from taking possession of those islands had there not been some deterrent.
Maybe MDT is involved, but my personal undertanding is that China knows of too high a price to pay were China to use the military option against a small nation (us) who has a claim (still unresolved) over the territories.
Lose the claim now, and I can just hear a few voices chant — “Impeach!!!” for failure to uphold territorial integrity.
February 20, 2009 at 4:23 am
Note it works both ways : what protects a giant — USA — against a much smaller nation — Cuba — is a legal claim. Many people will agree that Fidel Castro would not have hesitated to pay the price — hundreds of thousands of dead Cubans — to take back Guantanamo Naval Base, except for a detail. Neither China nor Russia gave encouragement for the madness, much less promise support in the court of world opinion, and the reason is that the USA has a legal claim (for a few more years) onto Guantanamo.
February 20, 2009 at 5:24 am
I agree with the bill, sign it without delay. Te bill is our legal rights. It will act as a fench, either soft or hard thru this bill. Let’s become a participating member of UNCLOS. We have nothing to lose.
Great blog J. I do agree with you that Ding can be wrong. :)
February 20, 2009 at 5:59 am
upn, re guantanamo, is it coincidental that u.s.a. is, arguably, the most powerful nation with the biggest gun, to make it’s “legal claim” enforceable against any country, big or small? could you imagine if it was dominican republic who had a legal claim to guantanamo?
as an enlightened democracy, u.s has to convince its own people on the justness of its cause and, of course, a valid claim will go a long way towards getting the american people behind it. in contrast, totalitarian states have no need for that, i think.
February 20, 2009 at 6:30 am
J,
“threshold” — a warning given that China, a history records past actions. So that call is restraint right?
@ PhilManila, no worry sir, you can trust I won’t shout, hehehe. Arguing on bothb sides? I submit is different fom presenting the facets of an issue. The health the discussion the better. No intent to confuse.
Hey, we all want to learn and draw netter perspectives, sir. :)
BTW,if in the end one is proven wrong, that isn’t fatal. :)
And here I most certainly share upn grad’s point:
“…A legal claim is very important.”
February 20, 2009 at 6:33 am
Erratum: “…call is for restraint…”
February 20, 2009 at 10:43 am
Hello J, welcome, welcome. :-)
February 20, 2009 at 11:35 am
Thanks, caffeine_sparks.
The reason why I’ve been absent from FV and the blogosphere is because I had lost my Internet connection at home, I can only access the net in school. Which is why I wasn’t able to respond to many of the comments here.
Ding, I’m sorry if it appeared that I misquoted you. But it appeared to me that you viewed the bill in your previous post as confrontational. And you did warn Arroyo “against foolishly signing” the bill.
I think that filing our claim before the UN is very important. Although even if the UN CLCS upholds our claim it would, as all international law experts like Bencard and laymen like me know, not be enforceable; I think it can enhance our position in terms of, as I said, getting the US to honor the MDT.
Although China is not concerned about explaining its actions to its citizens, I think it is concerned about world opinion, which is why I think that should the UN CLCS approve our claim, they will, to some extent, be kept at bay.
But I agree with bencard and others. The most obvious step that we have to take after laying down the legal basis of our claims is to acquire the capability to enfrce and defend our sovereignty.
February 20, 2009 at 11:53 am
Very erudite, J. You said it right. I commend you.
Short of explaining myself, the reason why I wrote that way is to get everyone on their toes on this one. Initial reports say that the bill excluded the Kalayaan. Even Lauro Baja said that.
Kudos for a well-researched piece.
February 20, 2009 at 7:33 pm
Indeed I came across that Lauro Baja comment as well. But much as I respect the good mbassdor, I don’t know how he came up with the conclusions that the bill will let foreign vessels navigate through our internal waters.
February 21, 2009 at 2:01 am
J,
Nice post.
I think it would be inevitable that whatever baseline option we took that is UNCLOS compliant; designation of sealanes would be part of the requirement.
One reason why Sen. Miriam Defensor Santiago was against declaring the Philippines as an archipelagic state was supposedly because our internal waters would become archipelagic waters where foreign vessels would enjoy innocent passage, archipelagic passage, etc….
I think that’s covered by Article 46 to 54 of UNCLOS as well as other related articles.
But I think there’s a simple way of working around it. I think I saw a navigational map in MLQ3’s blog once. I’ll try to look for it. (Unfortunately, the plan is so simple that it might not apply)
All states laying claim over the Spratleys (except probably Taiwan) are signatories to UNCLOS.
If one reads the SPLOS meetings, one might notice the seeming silence of China over declaring if it will file for an extended shelf claim. I don’t think it signified any intention of doing so. (Unfortunately I didn’t read everything and I can’t even remember the headings of what I’ve already read)
Malaysia and Vietnam have signified an intention to file a claim on or before the deadline based on the 18th meeting of the States Parties.
Unfortunately for us regarding China; SPLOS has already admitted that any state that has not signified an intention to file may still do file a claim till the deadline.
And before they file for an extended shelf claim, they have to determine their baselines first. I think it was in 1982 when China defined their baseline and somehow they included Spratleys in it.
Though some people might not yet realize that claiming the KIG and Scarborough Shoal whether as regime of Islands or incorporated within the baselines is not just for claiming those islands and the area around them but it is also to preserve whatever EEZ we are supposed to enjoy already.
Supposing that we don’t lay any claim over Scarborough and the Chinese have it. It would eat into the EEZ extending from the Zambales area.
Though it won’t generate its own EEZ, a foreign state owning Scarborough would have Scarborough’s territorial and contiguous sea slice through our EEZ in our area there.
More problematic if the Spratleys are concerned.
Because the Spratleys based on their characteristics are supposed to generate their own EEZ.
Article 74 of UNCLOS would probably apply at which (supposing it was China that owned KIG), we are supposed to have agreements with China over the extent of the division between the EEZ from the KIG and the EEZ extending from Palawan.
Essentially we would lose a large part of the EEZ from Palawan.
Some people also would definitely cringe at the thought of another state agreement with China.
But as a signatory to UNCLOS, China is bound to resolve any disputes there through peaceful means. And we are not the only claimants to Spratleys so a shooting war of China against the Philippines is far from the horizon.
But at any rate, claiming KIG and Scarborough is definitely imperative for us.
February 21, 2009 at 7:23 am
justice league,
If I’m not mistaken, according to UNCLOS, if there are overlapping contiguous and EEZs, the states would have to resolve the issue. This is problematic in the case of overlapping contiguous and EEZs in Scarborough and Spratlys, as you have said.
Did China include Spratlys in its baselines? As far as I know that’s a violation of UNCLOS.
I don’t think China would be able to prove that the Spratlys is part of its extended shelf.
February 21, 2009 at 7:26 am
And re, “shooting war” with China.
I’m not sure China has the capability of transporting enough troops to thousands of kilometers away from the mainland. Unless they have an aircraft carrier, which as far as I know they don’t have (it is said that they plan to purchase one in 2010, but it is now doubtful given the economic difficulties).
Although we don’t have military parity with the Chinese, I think our close proximity to the islands is a tactical advantage.
February 21, 2009 at 7:38 am
May I be indulged some levity?
There’s that old joke that for China to go to war against, they all jst have to pee aimultabeiously for us to drown in… :)
February 21, 2009 at 7:43 am
Hahaha indeed.
Or they could all jump simultaneously and there would be an earthquake.:D
February 21, 2009 at 7:45 am
And since China likes to claim everything because they named it and the names appeared in their imperial records, maybe one day they would claim Binondo too.
Or maybe they would claim even my pancit and lumpiang shanghai.
February 21, 2009 at 7:46 am
They just might. LOL :)
February 21, 2009 at 9:34 am
J,
My bad. I was relying on memory. It was 1992 instead of 1982.
Yeah, like I said; I don’t know how they did it but I got that from here-
http://www.newsbreak.com.ph/index.php?option=com_content&task=view&id=4298&Itemid=88889066
February 21, 2009 at 4:08 pm
Nice piece J.
Regarding the sea lanes. The archipelagic state has the right to designate the sea-lane wherein there are no restrictions for international vessels. Indonesia, for example, designated the sea-lanes that could be used by international vessels though US and its allies are pushing its government to open more sea-lanes for their warships. In the case of the Philippines, the sea lanes that we could designate is the Babuyan Channel in the North for the East-west-east route and the Palawan passage, east of Palawan for the north-south-north route.
In the KIG, the Philippines had some advantages since we are occupying the second largest island in the area (Unfortunately, Taiwan controls the largest island in the KIG) However, the Vietnamese are occupying the most number of islands/islets in the area and some these islets are nearer to Palawan than some of our occupied Islands and islets.
February 22, 2009 at 2:02 am
J,
I found the map in MLQ3’s blog- http://www.quezon.ph/1955/greater-malaysia/
The plan is this; we have not relinquished our claim to Sabah even with the new baseline bill. So the sea between Sabah and Palawan is still our waters as far as we are concerned.
So this is essentially the same route we give. Basically between Palawan and Sabah and the Luzon strait which is mostly similar to what Ishmael Ahab says anyway.
Ishmael Ahab,
I looked at a map and I think Palawan passage is to the west of Palawan which I think is what you wanted anyway.
February 23, 2009 at 8:09 pm
Thanks for the additional information, Ishmael Ahab and justice league.
February 24, 2009 at 4:23 pm
justice league,
Oh my mistake. Yep Palawan Passage is to the west of Palawan Island.
Looking at the case of Indonesia, it is possible that the superpowers will demand more international sea-lanes. They may demand the San Bernardino Strait (Between Bicol and Samar Island) to Mindoro Strait. ‘yun nga lang patibayan na lang ng pinuno yan.
J,
You are welcome. :-)