No need to amend baselines law to enforce arbitral award - expert

ABS-CBN News

Posted at Jun 09 2021 10:29 AM | Updated as of Jun 09 2021 03:38 PM

This photo taken on April 21, 2017 shows an aerial shot of a reef in the disputed Spratly islands. Ted Aljibe, AFP

MANILA - There is no need to amend the country's baselines law in order to enforce the 2016 arbitral ruling that junked Beijing's claim to the entirety of South China Sea, a maritime law expert said Wednesday.

Republic Act 9522, the law which modified a series of legislation defining the archipelagic baseline of the Philippines, is already "adequate," said Professor Jay Batongbacal, director of the University of the Philippines Institute for Maritime Affairs and Law of the Sea.

Section 2 of the law states that Bajo de Masinloc or Scarborough Shoal and Kalayaan Island Group or Spratly Islands are determined as "Regime of Islands" under the Philippines, he told ANC.

"Now, that's already sufficient authority for the Philippine government to go ahead and identify the maritime zones around these islands as well as the baselines, which are really just normal baselines," he said.

"In normal baselines, you do not need to legislate. All you need to do is measure all the maritime zones around it."

Batongbacal was reacting to a proposal from Retired Supreme Court Associate Justice and former Solicitor General Francis Jardeleza that aims to break the 5-year impasse that is the landmark ruling, which China continues to ignore.

Jardeleza has submitted a letter to President Rodrigo Duterte urging him to certify as urgent a bill that seeks to amend the existing baselines law.

A baseline refers to that line along the coast of a State from where its maritime jurisdiction may be measured.

The 13-page proposed bill identified some 128 maritime features in the West Philippine Sea over which the Philippines either has sovereignty or sovereign rights and jurisdiction, with provisions for at least 35 rocks or high tide features. These areas include those within the Kalayaan Island Group or Spratly Islands and the Bajo de Masinloc or Scarborough Shoal.

For Batongbacal, a presidential proclamation as suggested by retired Senior Associate Justice Antonio Carpio is a "better exercise of sovereignty" instead of amending the law.

"A proclamation means that we are merely implementing the law and that means it's also an exercise of sovereignty," he said. 

"In fact, it's even a better exercise of sovereignty in a way because we're only implementing what's already there. Unlike legislating baselines, it's as if they weren't there before. That should not be the case."

"As I said, it only seems to imply we're not even sure of what these areas are and where they are," he added.

Batongbacal also said even if the Philippine government passed a new baselines law, it would not affect China's stance in the disputed waters.

"The problem in the disputed areas is not the naming [and] not the zones. It's really the position of the countries and the way they're asserting their claims," he said.

"So, this will not affect China's behavior and activities. If at all, it will only give China another reason to say that it needs to react or that it was provoked."

"It might just come up with its own baselines as well around these islands, which will further complicate the situation," he added.

In 2016, the Permanent Court of Arbitration in The Hague ruled in favor of Manila and junked Beijing's claim to about 90 percent of the South China Sea.

However, Beijing has been accused of militarizing also the marine resources- and energy-rich waters, a major international trade route.

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