Understanding PH baselines law: Will amending it lead to enforcement of arbitral tribunal award?

Mike Navallo, ABS-CBN News

Posted at Jun 09 2021 01:14 AM

MANILA — A new proposal to break the five-year-old impasse that is the arbitral tribunal award in favor of the Philippines against China in the South China Sea intends to amend the current baselines law in the Philippines.

Retired Supreme Court associate justice and former Solicitor General Francis Jardeleza on Monday submitted a letter to President Rodrigo Duterte urging him to certify as urgent a bill that seeks to amend Republic Act No. 9522, the law which modified a series of legislation defining the archipelagic baseline of the Philippines. 

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

“We respectfully submit that the best, most efficient and practical option to enforce the Award is to enact an amendment to Republic Act No. 9522, and legislate a new Baselines Law, consistent with the Award,” he said in his letter, where he also sought certification for funding of the measure.

Jardeleza, who acted as agent for the Philippines in the arbitration case former President Benigno Aquino III filed against China, was joined by international law consultant Dr. Melissa Loja and professorial lecturer Romel Bagares.

Their 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.

Why the need to identify individual rocks and maritime features?

Jardeleza said that this was the consequence of the historic 2016 Hague ruling which junked China’s nine-dash line claim in the South China Sea and declared that there are no “islands” within the Spratlys and Scarborough Shoal, only “rocks.” 

Art. 121 of the United Nations Convention on the Law of the Sea (UNCLOS III)

Islands under Art. 121 of the United Nations Convention on the Law of the Sea (UNCLOS III) must be capable of sustaining human habitation or an economic life of their own. They could generate a 12-nautical-mile territorial sea and an exclusive economic zone of 200 nautical miles.

In contrast, rocks can only generate a 12-nautical-mile territorial sea.

This is crucial because islands could form archipelagos whose baselines are drawn from the outermost points of the outermost islands and drying reefs. 

Rocks, however, could not, and its baselines will have to be determined from each rock. 

RA 9522, enacted in March 2009 or 7 years before the arbitral award, incorporated the Kalayaan Island Group and the Scarborough Shoal in the law as areas where the Philippines exercise sovereignty and jurisdiction. 

“RA 9522 states that there ought to be the baselines that will refer to the Kalayaan Island Group as a regime of islands. The trouble with 9522 is that it does not name the features and it does not say which regime,” Dr. Loja explained in a press conference Monday, highlighting the need to name each individual maritime feature.

Speaking to ANC Rundown on Tuesday, Jardeleza said the 2016 arbitral award made it imperative to make some changes to the law.

“There are so many rocks in the West Philippine Sea, there is a need to mark out the particular metes and bounds kumbaga of the particular rocks,” he said, pointing out that some rocks may be occupied by other countries whose territorial seas might overlap with those of the rocks the Philippines claim.

While the arbitral award recognized the Philippines’ exclusive economic zone of 200 nautical miles from the baseline as well as the country’s continental shelf, Jardeleza said, these cannot go beyond the territorial sea of those individual rocks which might be occupied by other countries. 

“Ngayon ang part ng Kalayaan ay nasa 200 nautical miles ng tawag na EEZ natin. So what do you do kung nasa loob ng 200 nautical miles natin ay may rock na okupado natin o okupado ng ibang bansa…Ngayon it is important to determine ano yung territorial sea natin,” he added.

Naming these rocks, according to the group, would have the added benefit of being the first claimant to legislate individual names and baselines of claimed features.

“Legislating by name is an act of sovereignty. At the moment, actual occupation is not possible with respect to certain features because of the prohibition under the UN charter on the use of force to alter a territorial situation,” Dr. Loja explained.

China has been, through the decades, naming certain territories in the South China Sea as part of their own and creating provinces, sending people to occupy these areas.

But what will legislating the name of these islands do for people on the ground?

Jardeleza said it is a simple way of giving them something to rely on.

“Biro mo…people for the Armed Forces tumataya ng buhay nila, over territory. Now if these people face foreign vessel, I think we owe it to them na panindigan nila na may hawak sila, to my mind, a simple, it’s a simple, it is inexpensive. Hindi na natin kailangan pang dumulog pa sa UN, or ICC. Pagbubunuan na lang nating mga Pilipino, let’s do it quickly,” he said.

CRITICISMS

But this early, some West Philippine Sea advocates are questioning whether there is a need to pass a law at all.

Consul-general Henry Bensurto, Jr., credited as the “brains behind the Philippines’ policy in the South China Sea disputes,” said during the press conference that the determination of maritime features is a factual issue not subject to Congress’ discretion.

“It is not a matter of discretion which feature to make the baseline to make the claim. It is now a question which feature is a rock and which feature is a low-tide elevation,” he said.

For his part, retired Senior Associate Justice Antonio Carpio said in a statement Monday that what Jardeleza hopes to achieve may be done through a presidential proclamation.

“To determine whether a geologic feature is high tide or low tide will take time. Some features are low tide some months of the year, and high tide at other months. What is low tide now could be high tide in a few years, like Sandy Cay. It is not practical to state the description of these geologic features in a law. It is better to name, and to state the coordinates and description of these geologic features, in a presidential proclamation,” he said.

“The problem is that our NAMRIA [National Mapping and Resource Information Authority] cannot identify with certainty all the high-tide and low-tide features. Even the arbitral tribunal had difficulty deciding whether certain geologic features cited in the arbitration are high-tide or low-tide. The status of these geologic features are better stated in a presidential lroclamation for ease of changing their status in light of new facts,” he added.

Our waters facing the South China Sea were named West Phil Sea thru an administrative order.

Carpio, a former chief presidential legal counsel at the time of President Fidel Ramos, and who also actively lobbied for the arbitration proceedings against China, pointed out that the waters facing South China Sea, was renamed by President Aquino as West Philippine Sea through an administrative order.

He added, concerns regarding about the Spratlys or Kalayaan Island Group have already been addressed by the current law.

“RA 9522 already states that the KIG, as constituted under PD 1596, shall be treated as a Regime of Islands in accordance with Article 121 of UNCLOS. This is already fully compliant with UNCLOS. The Philippines submitted a copy of RA 9522 to the arbitral tribunal which did not find anything wrong with RA 9522 in relation to UNCLOS,” he explained.

Prior to RA 9522, the Kalayaan Island Group was treated as part of the continental margin of the Philippine archipelago under Presidential Decree 1596. 

Republic Act 3046, enacted in 1961, used as its bases in determining the baseline the 1898 Treaty of Paris as well as treaties between the US and Spain in 1900 and between the US and Great Britain in 1930 to justify a rectangular demarcation no longer recognized under UNCLOS.

It was amended by RA 5446 in 1968.

LOOK. An illustration from Magallona v. Ermita of how Philippine archipelagic baselines changed over the decades.

The Supreme Court in the 2011 case of Magallona vs. Ermita affirmed the constitutionality of RA 9522, saying it was intended to make the Philippines baselines law compliant with the UNCLOS, which the Philippines ratified in February 1984.