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Vera Files is put out by veteran journalists taking a
deeper look into current issues. Vera is Latin for “true.”
Neglect by
President Arroyo and squabbles over turf and money have
derailed government efforts to establish the country’s new
archipelagic baseline, and may jeopardize the
Philippines’
claim over resource-rich Spratlys that fall within its
extended continental shelf. With a year left before the
May 13, 2009, deadline for filing its claim for an
extended continental shelf under the United Nations
Convention on the Law of the Sea (Unclos), the Philippines
is nowhere near completing the studies, surveys and report
required to bolster the country’s claim over its extended
territory.
The Unclos,
which the
Philippines
ratified 14 years ago, requires coastal states to declare
their extended continental shelf, which is the underwater
extension of the land.
In
Congress, lawmakers are debating a redefined archipelagic
baseline bill. Although there is no deadline to the filing
of a country’s archipelagic baseline with the UN, it is,
however, going to be the basis for measuring all maritime
regimes or zones: territorial sea (12 nautical miles from
the baseline), contiguous zone (24 NM), economic exclusive
zone (200 NM), continental shelf (200 NM) and extended
continental shelf (350 NM).
The
drafting of the country’s claim under the Unclos is a tale
of infighting among agencies wanting to take the lead and
subsequently controlling the billions of pesos of funds
for that undertaking, including a $250,000 grant from the
Norwegian government.
It is also
a story of President Arroyo’s failure to give importance
to the complicated tasks involved (such as marine
hydrographic, gravity and magnetic surveys and studies) to
come up with data required in drafting territorial
baseline despite the urgency of a May 2009 deadline.
In 2001
President Arroyo abolished the Cabinet Committee on the
Treaty on the Law of the Sea, created under Ferdinand
Marcos and maintained by the three succeeding
presidents—Corazon Aquino, Fidel Ramos and Joseph Estrada.
President Arroyo replaced it with the midlevel Maritime
and Ocean Affairs Center (MOAC), which was just a unit in
the Department of Foreign Affairs (DFA), then headed by
Assistant Secretary Alberto Encomienda.
After six
years, some progress
It was
only in March 2007, after six years, that President Arroyo
restored the issue as a Cabinet-level concern when she
issued Executive Order 612, creating the Commission on
Maritime and Ocean Affairs (CMOA) under the Office of the
President. The CMOA is to be chaired by the executive
secretary, with the justice secretary and foreign affairs
secretary as vice chairmen.
The
initial members were the departments of National Defense,
Environment and Natural Resources, Budget and Management,
Transportation and Communications, Tourism, and Trade and
Industry; National Security Council (NSC), Bureau of
Fisheries and Aquatic Resources; National Mapping and
Resources Information Authority (Namria); and the Coast
Guard.
President
Arroyo designated the DFA as the lead agency and CMOA
secretariat. She also committed a major oversight: she
excluded from the EO creating CMOA the Department of
Energy (DOE), which had been involved in scientific
studies on the country’s continental shelf with other
agencies.
It took
nine months for President Arroyo to correct the lapse. On
December 17, 2007, she issued EO 612-A, including DOE in
the CMOA “in order [for it] to be able to fully contribute
its knowledge and expertise” in the preparation of the
country’s claim for extended continental shelf.
Outside
the Palace, however, there were other initiatives toward
complying with the UN requirement. In 2001 the University
of the Philippines, through its National Institute of
Geological Sciences and the UP Law Center’s Institute of
International Legal Studies, undertook a project,
“Delineation of the Outer Limits of the Philippine
Continental Shelf,” with the DOE, Namria and the Mines and
Geosciences Bureau.
UP law
professor Harry Roque, an international-law expert,
recalled the confusion on who was to take the lead in this
project. Foreign-affairs officials wanted the DFA to lead,
because it was in charge of submitting the claim to the
UN. The DENR said it should take the lead because the
project involves natural resources, and Namria is its line
agency. The NSC also got into the picture, citing security
considerations.
In the
end, the project proposed an executive order creating an
interagency national committee with the president or vice
president as chairman and the DFA and the DENR as vice
chairmen. When the UP-led project ended months later,
President Arroyo had not created any such committee.
In the
case of MOAC, interagency coordination was saddled by its
not being Cabinet level; thus, no policy decisions could
be made. To be fair, Encomienda presented updates on the
project before the Cabinet cluster on security attended by
President Arroyo.
There were
also personality differences among MOAC members. Some did
not regard highly the entry of a retired police general,
Dionisio Ventura, as head of Namria, while others resented
what they said was Encomienda’s “soliloquy” during
meetings. Worse, some agencies refused to share data with
MOAC.
Wrangling
in FVR’s time
Bureaucratic wrangling also marred baseline-related
activities of past administrations. During the presidency
of Fidel V. Ramos, interagency power play derailed a
project that would have strengthened the Philippine
position to include a portion of the disputed Kalayaan
Island Group (KIG) within the Philippine archipelagic
baseline. The KIG is part of Spratlys.
Documents
obtained by Vera Files showed that as early as 1994, Ramos
ordered various agencies to work together on projects to
redefine the country’s archipelagic baseline.
In
mid-1994, then Namria administrator Jose Solis (now
congressman of Sorsogon) sought financial assistance from
then-Energy Secretary Delfin Lazaro for the building of
lighthouses on three islets in the KIG: Nares Reef, Recto
Bank or Marie Louise Reef, and Sea Horse Bank.
This was
about the time that the Chinese were starting to occupy
Mischief Reef in the KIG, which is only 135 NM away from
the Philippine baseline. Lazaro supported the lighthouses
project and sought Ramos’s approval to draw funds from the
DOE’s Special Account.
In a memo
to Ramos, Lazaro cited possible international
complications and risks of the lighthouse project: “While
this project will be beneficial to the Philippines in
terms of expanding available area not only for petroleum
exploration but for other natural resources as well and
that the lighthouses will also be important navigational
aids, we wish to point out that actual construction of the
lighthouse could provoke international protests from other
countries [such as China and Vietnam], including possible
physical stoppage of the work by their navies.”
Lazaro’s
request for a go-signal got stalled in Malacañang. His
successor, Francisco Viray, pursued the lighthouse
project. In a memo to Ramos dated December 12, 1994, Viray
said: “Once established, these lighthouses will serve as
legal basis in determining the new baseline. Other
countries are doing the same things to fortify their
territorial claims.”
Viray said
the presence of lighthouses would reinforce the country’s
claim over the Reed Bank. A lighthouse would have
qualified Reed Bank, which is within the 200-mile
exclusive economic zone, to be part of the archipelagic
baseline. This would increase Philippine archipelagic
waters within the baseline by 11,042 sq NM, or 7,750,000
hectares.
Documents
obtained by Vera Files showed that on February 15, 1995,
Ramos finally approved the release of P178 million for the
mapping, survey and construction of lighthouses in the KIG.
He instructed the DOE to supply the funds, and the Namria
to supervise the design and construction of the
lighthouse, as well as the coordinates of the benchmarks
identifying the territorial limits based on the 200-NM EEZ.
Formal public bidding was waived “in view of the urgency
and confidentiality of the project.”
Namria
authority revoked
But soon
after the funding was approved, Ramos himself revoked
Namria’s authority to oversee the project and transferred
it to the Philippine Navy as suggested by then-defense
secretary Renato de Villa.
Solis
complained: “The Namria has been religiously working for
the immediate implementation of the KIG project. I would
like to inform the executive secretary that when there
were still no available funds for the project, it was the
Namria which did all the work to convince the funding
agency to support the project. However, when the funding
was approved and the authority was given to the Namria,
the Cabinet made a decision to transfer the project to the
Philippine Navy.”
For some
reason, the KIG lighthouses never got built—and the
Philippines has lost its chance to build them. In 2002 the
Arroyo government signed the Asean-China Code of Conduct
in the South China Sea that bans construction of new
structures on uninhabited islands in the disputed areas.
Brunei, China, Malaysia, Taiwan, Vietnam and the
Philippines are claiming wholly or partially about 160
islands in the
South China Sea.
A number
of baseline and continental shelf legislations have been
filed in both chambers of Congress. In the Senate,
then-senator Leticia Shahani filed such a bill in 1993. A
proposed baseline law authored by detained senator Antonio
Trillanes IV is pending in the 14th Congress. The bill
seeks to amend the existing baseline to include
Scarborough Shoal and treats the KIG as a regime of
islands to conform to the criteria set by Unclos.
In the
House of Representatives, Cebu Rep. Antonio Cuenco’s bill
has been returned to the committee level after reaching
second reading last December. There were earlier
initiatives in the House by then representative and now
senator Francis Escudero and Rep. Gerry Salapuddin. “The
project was stalled due to lack of available funds,”
Salapuddin said back then.
Indeed,
the government’s failure to provide the money has slowed
down projects needed to revise the baseline law and
identify the extended continental shelf. After receiving
an initial P50-million funding last year, CMOA is getting
only P10 million in the 2008 budget.
It also
took Malacañang five years to include the budget needed
for the extended continental shelf project. A source privy
to the project said Namria had initially estimated that
P10 billion would be needed for the scientific and
technical surveys. Deputy Executive Secretary for
Legislative Liaison Jake Lagonera balked, saying,
“Masyado yatang malaki ’yan [That’s too much].”
Indonesia
had spent about $100 million for its project. But MOAC had
said about P500 million would be enough for the extended
continental shelf project.
The source
said the Palace also found Namria’s second proposal,
totaling P2.9 billion, on the high side. It finally
approved a P1.7-billion funding to be released over
several years.
The Arroyo
administration’s last-minute effort to meet the May 2009
deadline is reflected in Namria’s P 1.2-billion budget for
this year. For the first time, it is getting a
P380-million allotment for the extended continental shelf
delimitation project on top of the P547 million for its
regular mapping and remote-sensing
activities.
Last-minute scramble
A month
before the May 13, 2009, deadline, the Philippine
government intends to submit a claim before the United
Nations over its extended continental shelf, which
scientists and legal experts say include the resource-rich
KIG and other disputed territories.
If the UN
upholds this claim, the Philippines would have the
exclusive right to exploit the KIG’s vast natural
resources, including an estimated 200 billion barrels of
oil. The KIG is part of the disputed Spratly Islands in
the South China Sea also being claimed wholly or in part
by
China,
Taiwan, Vietnam, Malaysia and Brunei.
The huge
amounts of oil, natural gas, minerals and polymetals, such
as gold, silver, iron and nickel, off the seas of the KIG
could “greatly contribute to the growth of the economy and
uplift the socioeconomic condition of the Philippines,”
said the University of the Philippines-Institute of
International Legal Studies (UP-IILS).
But the
prize that is the KIG will not come easy. Laying claim to
the extended continental shelf requires a complex and
concerted series of scientific, diplomatic and legislative
efforts. Scientists and academics estimate the process
could take from three to 10 years and eat up billions of
pesos. If the Philippines misses the deadline, it will
lose its claim forever.
Stressing
the importance of the claim for an extended continental
shelf, UP’s Roque says, “The majority of oil we derive
today is no longer from land territory but from the
continental shelf.”
The Unclos
defines continental shelf as “the seabed and subsoil of
the submarine areas that extend beyond its territorial
sea.” It is the natural underwater extension of the land
up to the point where it either gradually descends or
drops off into the ocean floor. Under Unclos, a
continental shelf of up to 200 NM from the archipelagic
baseline automatically belongs to a state and no proof of
claim is required.
A
continental shelf that goes beyond 200 NM is called the
outer limits or the extended continental shelf. States may
claim an extended continental shelf of up to 350 NM from
the baseline. To prove that the continental shelf extends
beyond 200 NM, a state would have to conduct hydrographic
and geoscientific studies and submit the data to the UN
Commission on the Limits of the Continental Shelf (CLCS).
Some parts of the KIG are about 230 NM from Palawan.
Atty.
Henry Bensurto, head of CMOA Secretariat, says the
government plans to submit to the CLCS on
April 13, 2009,
the technical data proving that the KIG and Scarborough
Shoal are part of the country’s extended continental
shelf. But Prof. Teodoro Santos, formerly of the
UP-National Institute of Geological Sciences (UP-NIGS) had
urged the government to submit the claim by 2007, “since
the CLCS has to review the submissions and make relevant
suggestions, for the state to respond to.”
Santos,
in a paper presented to the UP-IILS in 2002, identified
three areas where the Philippines could claim an extended
continental shelf: the KIG west of
Palawan; Scarborough Shoal (Isla Bajo de Masinloc) west of Zambales;
and Benham Rise, off the Bicol Region in the
Pacific
Ocean.
Of these,
he said the KIG is the “most promising with respect to
petroleum and natural gas.” In terms of the equivalent in
billion barrels of oil within the area of the KIG, he said
the Chinese have the highest estimate at 100 billion to
200 billion barrels, with Russian sources estimating a low
of 7 billion barrels.
“The
Scarborough shoal is made up of mid-oceanic ridges formed
during the extension of the South China crust, which are
presently adding to the growth of Western Luzon by
accretion. Similarly, the Benham Rise is an extinct
volcanic ridge added into the eastern margin of
Luzon,” said Prof. Mario Aurelio of the UP-NIGS. He added, “The
strongest pieces of evidence the
Philippines
can present for its claim over these areas are geological,
geophysical and tectonic data.”
The extent
of the continental shelf is measured from the country’s
baseline, the line connecting the basepoints that define,
in longitude and latitude, the archipelagic boundaries.
But the bill amending and redefining the archipelagic
baseline remains pending in Congress.
The
existing baseline law, passed and amended in the 1960s,
used the Treaty of Paris to define Philippine boundaries.
The Treaty of Paris is the 1898 agreement in which
Spain
ceded the Philippines to the United States. The baseline
law needs to be amended and harmonized with Unclos
provisions, in particular the doctrine of archipelagic
states which draws a straight archipelagic baseline
“joining the outermost points of the outermost islands and
drying reefs of the archipelago.”
All
Congress needs to do is adjust the country’s baseline
using Unclos’s Article 47, which says that basepoints must
be part of the main archipelago, and must not be more than
100 NM long.
House bill
stalled
But the
bill amending the baseline, House Bill 3216, authored by
Cebu Rep. Antonio Cuenco, got caught up in the controversy
that recently surrounded the Spratly Islands and the Joint
Maritime and Seismic Undertaking (JMSU) between the
Philippines and China. As a result of the various
amendments to it, the Cuenco bill now includes within the
baseline both Scarborough Shoal and the KIG, which are not
part of the main archipelago.
“Instead
of merely correcting the technical and clinical aspects of
the baseline, somehow it has broadened to include
territorial issues, and when you include territorial
issues it gets complicated,” Bensurto said.
Approved
on second reading, the Cuenco bill drew protests from
China. “If the Philippine side forcefully puts
Scarborough Shoal and some other Nansha reefs and islands
inside the baseline of Philippine territorial sea, it
will… disturb China-Philippine cooperation in the area,
exerting negative impact on the healthy development of our
bilateral relations,” said the Chinese démarche, or
official position, dated December 2007, a copy of which
was sent to Cuenco by the Philippine Embassy in China.
The bill
had to be thrown back to the Committee on Foreign Affairs
for further debates and possible revisions following
China’s protest. Hearings are scheduled to resume on April
4. At the Senate, Trillanes filed a counterpart bill,
which has not been acted upon.
Congress
does not need to pass the baseline law before May 2009,
but the UN will still need a revised baseline as a
reference point when deciding on the Philippine claim.
“For as long as you’re not clear with your baseline, then
there’s difficulty moving forward,” Bensurto pointed out.
“The baseline is the first step in putting your
archipelagic house in order.”
A clear
baseline helps draw the line separating national and
international waters and defines the limits of Philippine
responsibility. All maritime regimes or zones are reckoned
from the baseline. The 12-mile territorial sea is the area
where the state enforces its laws and exploits its
resources. The 24-mile contiguous zone, beyond the 12-mile
territorial sea, is where the state has the right to
pursue smugglers, illegal fishers, illegal immigrants, and
customs and tax evaders. The 200-mile exclusive economic
zone is where the state has the right to exploit and
develop the resources in the sea. The 200-NM continental
shelf is where the state can exploit the resources all the
way down to the seabed. According to Bensurto, these
various maritime zones represent an additional 93 million
hectares of water that are the responsibility of the
Philippine government.
“When your
territory is confused and your baseline is confused, it is
also confusing to your law-enforcement agencies. In a
contiguous zone, it’s a quarantine and immigration area,
if you don’t know where that line is, you don’t know when
to shoot a ship and when not to shoot a ship,” Bensurto
explained. “The whole point is to harmonize the
[baselines] law with the Unclos.”
Consensus
on baseline
Last
December CMOA’s member-agencies agreed to adopt the
position that the country’s baseline would be the lines
enclosing the main archipelago (see CMOA illustration).
The KIG, as well as Scarborough Shoal, would be treated as
“regimes of islands” that are part of Philippine territory
but outside the baseline. Besides, even if the KIG and
Scarborough Shoal are not within Philippine baselines,
they will still form part of the country’s extended
continental shelf. The KIG is considered part of Palawan
province and are part of Philippine territory by virtue of
Presidential Decree 1596.
Whatever
moves the government makes on the KIG and Scarborough
Shoal, however, it would have to take into account
neighboring countries, which also consider the islands
part of their own territories or continental shelves.
Hence, alongside the scientific and legislative efforts
must come diplomatic negotiation.
Bensurto
pointed out that the filing of a claim with the CLCS will
not settle territorial disputes. In fact, the UN body will
not rule on a claim if it involves disputed territory.
Suzette Suarez, formerly with UP-IILS and now with the
CLCS, agreed with Bensurto: “The CLCS will not examine and
qualify a submission by any state in cases where a land or
maritime dispute exists unless there is prior consent
given by all states that are parties to the dispute.”
Suarez
added: “If the Philippines claims at least 200 NM of
continental shelf, it will already stand to have overlaps
in some areas of the continental shelf with Palau,
Indonesia, Malaysia, Brunei, Vietnam, China [and/or
Taiwan] and Japan.”
In the KIG,
the issue is not one of overlapping continental shelves
between adjacent or opposite states, but a territorial
dispute among the claimant states. The same is true for
Isla Bajo de Masinloc (Scarborough Shoal, which is
disputed by the Philippines, China and Taiwan). Since
Benham Rise is on the Pacific side of the Philippines,
which is without any opposite state within 400 NM, it will
stand to have no issue of overlap.
“The
government must settle conflicts of interest with other
states,” said the late legal luminary and UP law professor
Haydee Yorac in a roundtable discussion on the
Philippines’ maritime jurisdictions in 1991. “As good
fences make good neighbors, treaties and conventions which
establish clear boundaries of power and operation will
minimize interstate disputes.”
By Luz Rimban, Booma Cruz, Yvonne Chua, Ellen Tordesillas,
Chit Estella and Jennifer Santiago |
