UP CLOSE:

PHILIPPINE ARCHIPELAGIC BASELINES

A Policy and Legal Question
by Atty. HENRY S. BENSURTO, JR. Department of Foreign Affairs

PRESENTATION OUTLINE
ARCHIPELAGIC PHILIPPINES: AS POLICY AND LEGAL QUESTION INTRODUCTION: REGIONAL CONTEXTUAL ENVIRONMENT SITUATIONER ON THE WEST PHILIPPINE SEA PART I: POLICY IMPERATIVES FOR ARCHIPELAGIC PHILIPPINES PART II: LEGAL IMPERATIVES AND ISSUES ON ARCHIPELAGIC BASELINES UNCLOS THE TREATY OF PARIS QUESTION THE QUESTION OF INTERNAL WATER

INTRODUCTION: SITUATIONER ON THE WEST PHILIPPINE SEA (WPS)

BAJO DE MASINLOC (SCARBOROUGH SHOAL)

What appears to be a fishing incident, is really from the beginning, an occupation issue Bajo de Masinloc is part of Chinas creeping assertion in the WPS

BAJO DE MASINLOC (SCARBOROUGH SHOAL)

from China PH 200M EEZ AND CONTINENTAL SHELF

Scarborough Shoal

PH BASELINES (RA 9522)

Spratlys Group Of Islands

FOR ILLUSTRATION PURPOSES ONLY

CAUSE OF TENSION : CHINAS CREEPING ASSERTION

China Military expenditure in constant 2010 US$B. 1994-[2012]

20.31

www.sipri.org

Amy Douglas Bank

Reed Bank

PH BSL

CHIGUA REEF LEN DAO REEF

Wood Bank Southern Bank

Prior to 1995, China was in CHIGUA & LEN DAO REEF, which is about 185M from Palawan
FOR ILLUSTRATION PURPOSES ONLY PH200M

CAUSE OF TENSION : CHINAS CREEPING ASSERTION

China Military expenditure in constant 2010 US$B. 1994-[2012]

China Occupies Panganiban/ Mischief Reef 1995

20.88

www.sipri.org

Amy Douglas Bank

Reed Bank

PH BSL

Wood Bank Southern Bank

PANGANIBAN REEF

By 1995-98, China was in PANGANIBAN REEF, about 130M from Palawan

FOR ILLUSTRATION PURPOSES ONLY PH200M

CAUSE OF TENSION : CHINAS CREEPING ASSERTION

China Military expenditure in constant 2010 US$B. 1994-[2012]

87.73

www.sipri.org

Amy Douglas Bank

REED BANK
Wood Bank Southern Bank

PH BSL

By 2006, China was asserting sovereignty over RECTO BANK, about 85M from Palawan
FOR ILLUSTRATION PURPOSES ONLY

PH200M

CAUSE OF TENSION :CHINAS CREEPING ASSERTION

China Military expenditure in constant 2010 US$B. 1994-[2012]

129.27

A3 www.sipri.org

Amy Douglas Bank

Reed Bank

A4

PH BSL

Wood Bank Southern Bank

By 2011, China was on AREAS 3 & 4, about 30 & 60M, respectively, from Palawan
FOR ILLUSTRATION PURPOSES ONLY PH200M

China urges Philippines to cancel plan to bid out Area3 & Area 4 04 Jul 2011

CAUSE OF TENSION : CHINAS CREEPING ASSERTION

China Military expenditure in constant 2010 US$B. 1994-[2012]

~143

www.sipri.org

Amy Douglas Bank

Reed Bank

PH BSL

Philippines-China Stand-off in Bajo de Masinloc April 2012

Wood Bank Southern Bank

By 2012, China is in SCARBOROUGH SHOAL, 124M from Zambales

FOR ILLUSTRATION PURPOSES ONLY PH200M

CAUSE OF TENSION : CHINAS CREEPING ASSERTION

China Military expenditure in constant 2010 US$B. 1994-[2012]

~143

www.sipri.org

Amy Douglas Bank

Reed Bank

PH BSL

China vessel in Hasa-Hasa Shoal July 2012

Wood Bank Southern Bank

Also in 2012, China is in HASA-HASA SHOAL, 50M from Palawan

FOR ILLUSTRATION PURPOSES ONLY PH200M

CAUSE OF TENSION : CHINAS CREEPING ASSERTION

China Military expenditure in constant 2010 US$B. 1994-[2012]

~143

www.sipri.org

Potential target: AMY DOUGLAS BANK

Amy Douglas Bank

Reed Bank

PH BSL

Wood Bank Southern Bank

FOR ILLUSTRATION PURPOSES ONLY

PH200M

CAUSE OF TENSION : CHINAS CREEPING ASSERTION

China Military expenditure in constant 2010 US$B. 1994-[2012]

~143

www.sipri.org

Potential target: AYUNGIN & SABINA SHOAL

Amy Douglas Bank

Reed Bank

PH BSL

Sabina Shoal Ayungin Shoal

Wood Bank Southern Bank

FOR ILLUSTRATION PURPOSES ONLY

PH200M

FOR ILLUSTRATION PURPOSES ONLY

Near SW of Shantou, Guangdong (China)

Lat 23-09-42.60 Long 117-31-37.40

Near S of Hengchun (Taiwan) Lat 21-54-15.00 Long 120-50-43.00

Scarborough Shoal

CNOOC OPEN BLOCKS

PACIFIC OCEAN

WEST PHILIPPINE SEA

Spratlys Group of Islands

Reed Bank

EXPANDED CHINA FISHING BAN? (Q1 & Q2) + (Q3 & Q4)?

FOR ILLUSTRATION PURPOSES ONLY

113E Long Line

Scarborough Shoal

PACIFIC OCEAN

12N Lat Line

WEST PHILIPPINE SEA

Spratlys Group of Islands

Reed Bank

2011 CHINA FISHING BAN (QUADRANT 1)

FOR ILLUSTRATION PURPOSES ONLY

Near SW of Shantou, Guangdong (China)

Lat 23-09-42.60 Long 117-31-37.40

Near S of Hengchun (Taiwan) Lat 21-54-15.00 Long 120-50-43.00

Scarborough Shoal

PACIFIC OCEAN

12N Lat Line

WEST PHILIPPINE SEA

Spratlys Group of Islands

Reed Bank

2012 CHINA FISHING BAN (QUADRANT 1 + QUADRANT 2)

FOR ILLUSTRATION PURPOSES ONLY

Near SW of Shantou, Guangdong (China)

Lat 23-09-42.60 Long 117-31-37.40

Near S of Hengchun (Taiwan) Lat 21-54-15.00 Long 120-50-43.00

Scarborough Shoal

PACIFIC OCEAN

12N Lat Line

WEST PHILIPPINE SEA

Spratlys Group of Islands

Reed Bank

EXPANDED CHINA FISHING BAN? (Q1 & Q2) + (Q3 & Q4)?

FOR ILLUSTRATION PURPOSES ONLY

Near SW of Shantou, Guangdong (China)

Lat 23-09-42.60 Long 117-31-37.40

Near S of Hengchun (Taiwan) Lat 21-54-15.00 Long 120-50-43.00

Scarborough Shoal

PACIFIC OCEAN

WEST PHILIPPINE SEA

Spratlys Group of Islands

Reed Bank

PASSAGE THROUGH PHILIPPINE WATERS?

CHINAS 1ST LEGAL THEORY: 9-DASH LINE

TAIWAN CHINA
HISTORICAL CLAIM ON THE 9-DASH LINE

JAPAN

Scarborough Shoal

VIETNAM
Spratlys Group of Islands

Reed Bank

PHILIPPINES

PALAU BRUNEI MALAYSIA INDONESIA FOR ILLUSTRATION PURPOSES ONLY INDONESIA

CHINAS 2ND LEGAL THEORY: SPRATLYS AS COLLECTIVE WHOLE

GULF OF TONKIN
PARACELS

LUZON STRAIT

REED BANK

MINDORO STRAIT

GULF OF THAILAND

SPRATLYS BALABAC STRAIT

SULU SEA

SELAT KARTIMATA

CHINAS 3RD LEGAL THEORY: FULL 200M EEZ IN WPS FEATURES JAPAN
TAIWAN CHINA

Scarborough Shoal

VIETNAM
Spratlys Group of Islands

Reed Bank

PHILIPPINES
200M PROJECTED FROM SPRATLYS WITH REED BANK AS PART OF THE ADJACENT WATERS OF NANSHA ISLANDS

PALAU

BRUNEI MALAYSIA INDONESIA FOR ILLUSTRATION PURPOSES ONLY INDONESIA

PART I: POLICY IMPERATIVES FOR ARCHIPELAGIC PHILIPPINES

POLICY IMPERATIVES
FIRST, the Philippines is an archipelagic state and an archipelago. 7,100 islands 31,800 km. coastline 62 of 71 provinces are coastal

POLICY IMPERATIVES
SECOND, RP is geo-strategically located at the heart of Southeast Asia. Lying between 21 5N and 4 23N, and 116 and 127 E E Surrounded by three prominent waters: the Pacific Ocean on the East, the South China Sea on the West and North, and Celebes Sea on the South
PACIFIC OCEAN

SOUTH CHINA SEA

CELEBES SEA

POLICY IMPERATIVES
THIRD, the Philippines is at the crossroad of major international navigational routes. More than half of the worlds tankers estimated to contain 353.42 thousand barrels of oil pass every year through the Straits of Malacca and Singapore and Sunda and Lombok Straits, with majority continuing on to the South China Sea

POLICY IMPERATIVES
FOURTH, the waters Southwest of the Philippines is a hotbed of geological resources and activity. There is a high potential for the area to yield oil and gas.

POLICY IMPERATIVES
CHINA

VIETNAM

SOUTH CHINA SEA

FIFTH, the Philippines is the TAIWAN center of center ofSource: TNC-SEACMPA marine biodiversity, having the PACIFIC OCEAN highest in the world. RPstraits used for hosts a greater part of the international navigation Coral Triangle, which is an ocean space as having the highest degree of biological diversity
CELEBES SEA

MALAYSIA

INDONESIA PAPUA NEW GUINEA

BACKGROUND: PHILIPPINE PUSH FOR RECOGNITION AS ARCHIPELAGIC STATE

Historical fact prior to the Archipelagic State Principle

Archipelagic state did not exist in international law

RP coined & pioneered the development of archipelagic doctrine

INTERNATIONAL RECOGNITION OF THE ARCHIPELAGIC DOCTRINE

Minister of State Arturo M. Tolentino Head of the Philippine Delegation 3RD UNCLOS 82 (Montego Bay, Jamaica) )

The Philippines advanced the archipelago principle as early as 1956 and we have established it in our national legislation. We are therefore happy that the archipelago principle has finally been recognized and accepted as part of public international law.

INTERNATIONAL RECOGNITION OF THE ARCHIPELAGIC DOCTRINE

THE PHILIPPINES IS A SIGNATORY AND PARTY TO THE 1982 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS); SIGNED 10 DECEMBER 1982 AND RATIFIED 27 FEBRUARY 1984

Former SolicitorGeneral Estelito Mendoza

UNCLOS MARITIME JURISDICTIONS 2D PROFILE

NOT TO SCALE

National Airspace
Archipelagic Waters / Internal Waters

International Airspace

Archipelagic Baseline EEZ 200M High Seas

Territorial Sea (12M) Contiguous Zone (24M) Juridical CS (200M) Extended CS (150M) The Area

PHILIPPINES PROJECTED MARITIME REGIMES

Baselines Archipelagic Waters Territorial Sea (12 M) Contiguous Zone (24 M)
1982 UNCLOS

EEZ (200 M) Juridical Continental Shelf (200 M) Extended Continental Shelf (Theoretical at 350 M)
Basemap c/o NAMRIA

BASELINES LAW
Republic Act No. 3046 (Jun 1961) amended by Republic Act No. 5446 (Sep 1968)
Baselines

HARMONIZE RP BASELINES SYSTEM W/ UNCLOS

Baselines Law (RA 5446)

Article 47 (2), Part IV, UNCLOS Archipelagic Baselines The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to MORO GULF a maximum length of 125 nautical miles.
140 M.

PRE- R.A. 9522

Illustrated 3M from coast

Pockets of high seas

Pockets of high seas

REPUBLIC ACT NO. 9522

Enclosing Main Archipelago only; Scarborough Shoal & KIG as Regime of Islands
Baselines EEZ (200 M) Regime of Islands

PART II: LEGAL IMPERATIVES AND ISSUES ON ARCHIPELAGIC BASELINES

REPUBLIC ACT NO. 9522: A LEGAL QUESTION

On 10 March 2009 Archipelagic Baselines Bill was signed into law as RA 9522 In April 2009, a Petition was filed before the Supreme Court to declare RA 9522 unconstitutional. A Prayer for Temporary Restraining Order (TRO) on the deposit of a copy of RA 9522 to the UN.

ON THE BASIC ARGUMENT OF THE PETITION

RA 9522 changes the maritime territorial boundary of the Philippines under the Treaty of Paris (TOP) Premise is that the TOP defines the maritime territorial boundary of the Philippines -- that the polygon/rectangular lines under the TOP are allegedly the extent of the Philippine territorial sea. Accordingly, since the TOP is enshrined in the 1935, 1973, and 1985 Constitution, it could not be amended via a mere statute. To do so, would make the said law unconstitutional, as alleged in the present case..

NATIONAL TERRITORY
Territorial Sea

RA 9522 ALLEGEDLY
Territorial Sea (12M belt)

Scarborough Shoal

Scarborough Shoal

Kalayaan Islands Group

Internal Waters

Kalayaan Islands Group

Archipelagic

Waters

ON THE CONSTITUTIONALITY OF RA 9522

FIRST, RA 9522 does not change the character of the water provided for under the old baselines law. It is a mere clinical and technical adjustment of the basepoints under RA 3046 as amended by RA 5446.

RA 3046 contains two (2) Sections:

Section 1 identifies the 80 basepoints; and, Section 2 defines the character of water inside baselines as internal water and the waters outside of baselines up to the TOP lines as territorial water.

RA 9522 merely amends Section 1 of the said law relating to the technical basepoints to align them with UNCLOS. Section 2 remains standing.

NATIONAL TERRITORY
Territorial Sea

RA 9522
Territorial Sea

Scarborough Shoal

Scarborough Shoal

Kalayaan Islands Group

Internal Waters

Kalayaan Islands Group

Internal Waters

ON THE CONSTITUTIONALITY OF RA 9522

SECOND, if one is to assume that RA 9522 changes the character of the water under RA 3046, it would still not be violating the Constitution, specifically the TOP.

A closer view of the TOP would indicate that it does not necessarily define the territorial water of the Philippines, and that its lines do not necessarily constitute the outer limits of the territorial sea of the Philippines Text of the TOP State practice

TREATY OF PARIS: TEXTUAL ANALYSIS

Treaty of Peace Between the United States of America and the Kingdom of Spain Spain cedes to the United States the archipelago known as the Philippine Islands and comprehending the islands lying within the following lines:
Treaty of Paris (1898)

TREATY OF PARIS: TEXTUAL ANALYSIS

by Florentino P. Feliciano, Philippine Intl. Law Journal, Vol. 1, No. 1, pp 160-161

The natural import of these words is, it is submitted, that what was intended to be ceded was the land area found within the said imaginary lines. The regular geometric nature of the line suggests that its purpose was not so much to mark a political boundary but rather to make certain that all the islands comprising the archipelago were included in the transfer.

TREATY OF PARIS: TEXTUAL ANALYSIS

by David P. Aiers, Philippine Intl. Law Journal, Vol. 1, No. 1, p 170

You will see that the reference is to the lands contained within certain lines of allocation. This is not an unusual way of attempting to delineate territory and there are other examples of territories being determined in treaties by the use of lines of definition. You will see that the reference in the three treaties [Treaty of Paris, Washington Treaty, US-UK Treaty] is to the actual islands and that the lines referred to are lines of allocation and not boundaries with a function of their own. In fact, none of the three treaties makes any reference to territorial waters.

STATE PRACTICE: SPAIN

The Spanish Law of Waters of 1866 indicates that Spain observed the maritime delimitation prescribed under international law, which at that time is only three nautical miles from the coastline, to wit:

SPANISH LAW OF WATERS of 3 AUGUST 1866 ARTICLE 1 includes as part of the national domain the coast of the sea, that is, the maritime zone encircling the coast, to the full width recognized by international law.

STATE PRACTICE: UNITED STATES

The US is adamant in denying that the TOP includes the maritime area. In response to a Philippine declaration that its territorial water extends to the limits of the TOP, the US stated:

The Government of the United States does not share its view concerning the proper interpretation of the provision of those treaties as they relate to the rights of the Philippines in the waters surrounding the Philippine islands. The Government of the United States continues to be of the opinion that neither those treaties, nor subsequent practice, has conferred upon the United States, nor upon the Republic of the Philippines as successor to the United States, greater rights in the waters surrounding the Philippine islands than are otherwise recognized in customary international law.

ON THE CONSTITUTIONALITY OF RA 9522

THIRD, what actually classified the water up to the limits of the TOP as Territorial Sea is not the TOP, but rather a municipal law, specifically RA 3046.

If the characterization of the water around the archipelago is defined merely under a municipal law, then the same could be amended merely via another legislative act. While the TOP is part of or included in Article I of the Constitution, RA 3046 & RA 5446 are mere legislative acts. While the TOP could only be amended or abrogated through an amendment of the Constitution, municipal laws such as RA 3046 and/or RA 5446 could be amended by subsequent legislations.

ISSUES - ON THE INTERNAL WATERS

RA 9522 DOES NOT VIOLATE ART. 1 OF THE CONSTITUTION

As earlier stated, RA 9522 is limited primarily with the clinical and technical adjustments of the baselines per se that were already earlier established under RA 3046 as amended by RA 5446, in order to make it conform to the technical requirements of Article 47 of UNCLOS on the drawing of archipelagic baselines. The law does not touch on the definition or re-definition of the character of the water. But be that as it may, even if one is to assume in argumentis that RA 9522 changes the name of the water inside the baseline from internal water to archipelagic water, the law would still not be violating Article I of the Constitution.

ISSUES - ON THE INTERNAL WATERS

The term internal water under Article I of the Constitution could actually also mean archipelagic water especially within the historical context of the Philippine advocacy for international recognition of the archipelagic doctrine.

Article I of the Constitution simply uses the term internal waters to describe the body of water inside the baselines, to wit:
The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (Article I, National Territory, Philippine Constitution)

ISSUES - ON THE INTERNAL WATERS

Nonetheless, the provision does not specify what the term internal waters actually mean in terms of rights and obligations of the Philippines vis--vis other countries, and vice versa. The closest concept where reference could be adverted to is the same term internal water found in Article 5(1) of the Geneva Convention on the Territorial Sea and the Contiguous Zone of 1958, which defined it as waters on the landward side of the baseline of the territorial sea.

But the concept of internal water under the 1958 Geneva Convention does not apply to the landward sea of the straight baselines of a mid-ocean archipelago, as the doctrine of archipelago did not yet exist as a legal concept at the time.

ISSUES - ON THE INTERNAL WATERS

At the time, the Philippines was still negotiating within the context the UN Conference on the Law of the Sea for the international recognition of the archipelagic doctrine. At any rate, the basic idea behind the classification by the Philippines of the body of water inside the archipelagic baseline as well as the campaign for its international recognition is the countrys desire to exercise sovereignty and jurisdiction over this water, which would otherwise be considered as high seas. As Senator Arturo Tolentino, Head of the Philippine Delegation to the UN Conference on the Law of the Sea, expounded before its Second Committee in Caracas, Venezuela, on 12 August 1974

ISSUES - ON THE INTERNAL WATERS

On behalf of my Delegation.we are ready and willing to negotiate, compromise, and accommodate with the end in view of reaching satisfactory agreement, as long as the essence of the archipelagic concept is maintained. In our view, that essence is the dominion and sovereignty of the archipelagic state within its baselines, which are so drawn as to keep the territorial integrity of the archipelago by the inseparable unity of the land and water domain. The preservation of this essence of the archipelagic concept is vital to us.. (The Philippine and the Law of the Sea, Series One Monograph No. 5, Published by the Secretariat to the Cabinet Committee on the Law of the Sea Treaty by the Development Academy of the Philippine Press, Dec. 1982, p. 21)

The nomenclature therefore was not as important as the substance. Moreover, the final shape and form of archipelagic water or internal water was to a large extent going to be subject to the outcome of negotiations within the framework of the UN Conference on the Law of the Sea.

ISSUES - ON THE INTERNAL WATERS

Accordingly, the Philippines interchangeably used internal water with archipelagic water. In his statement during the 1973 Spring Session of the Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction in New York City on 15 March 1973, Sen. Tolentino, explained It is because of this basic desire for unity that there should be international recognition of the right of archipelagic states to draw straight baselines connecting the outermost points of the outermost islands and drying reefs of the archipelago from which the extent of the territorial sea of the archipelagic state is or may be determined; and within which baselines, the waters, which are the archipelagic waters, regardless of their depth or distance from the coast..belong to or are subject to the sovereignty and exclusive jurisdiction of the archipelagic state.

ISSUES - ON THE INTERNAL WATERS

Further, the draft Articles on Archipelagos (Document No. 48), which the Philippines co-sponsored with Fiji, Indonesia, and Mauritius, before the same Sub-Committee, contained the following:

Article III, par. 1: The waters inclosed by the baselines, which waters are referred to in these articles as archipelagic waters, regardless of their depth or distance from the coast, belongs to and are subject to the sovereignty of the archipelagic state to which they appertain.

ISSUES - ON THE INTERNAL WATERS

After a series of negotiations, the exercise of Philippine sovereignty over the body of water inside the archipelagic baseline was to be recognized under Article 49 of UNCLOS:
Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil 1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with Article 47, described as archipelagic waters, regardless of their depth or distance from the coast; 2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein; 3. This sovereignty is exercised subject to this Part. 4. The regime of archipelagic sea lanes passage established in this Part shall not in any other respects affect the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein.

ISSUES - ON THE INTERNAL WATERS

Since Philippine sovereignty over the waters inside the baseline, which was really the essence of the Philippine concept of archipelago, has been internationally recognized, the Legal Committee which was constituted by then President Marcos to review the Law of the Sea Convention for purposes of determining whether or not to ratify the said Convention opined the following:
The Legal Committee maintained that, as against the opinion of some study teams, the provision of the Convention do not conflict with the Philippine Constitution. In particular, it noted the contention that the archipelagic waters and internal waters provisions of the LOS Convention run counter to the definition of internal waters in the Constitution is not necessarily a valid argument. Internal waters in the Constitution may be construed to also mean archipelagic waters as defined in the LOSC and the breaking up of waters into archipelagic and internal waters does not threaten Philippine sovereignty. (Highlights of Proceedings, Second Conference on the Review of the Law of the Sea Convention, 13-15 December 1982, Philippine Plaza, Prepared by the Secretariat to the Cabinet Committee on the Law of the Sea Convention, p. 17)

ISSUES - ON THE INTERNAL WATERS

THE CONSTITUTION CATEGORICALLY AND EXPLICITLY RECOGNIZES ARCHIPELAGIC WATERS:

Article XII, National Economy and Patrimony, Section 2, Paragraph 2, provides

The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

THANK YOU