On July 12, 2016, the Philippines won an arbitration case against China concerning certain issues in the South China Sea (SCS), including the nine-dash. The Arbitral Award declared that China’s Nine-Dash Line claim violates the UN Convention on the Law of the Sea (UNCLOS). It declared that the Philippines has an Exclusive Economic Zone (EEZ) and Continental Shelf (CS) in the areas of Panganiban (Mischief) Reef, Ayungin (Second Thomas) Shoal, and Recto (Reed) Bank and that Filipino fishermen have traditional fishing rights, in common with Chinese and Vietnamese fishermen, in the Territorial Sea (TS) of Bajo de Masinloc.
WHAT IS THE PROBLEM?
The Philippines has remained unable to translate its victory into actual exercise of exclusive sovereign rights overfishing and resource exploitation in its recognized EEZ and CS and traditional fishing rights in the TS of Bajo de Masinloc.
THE NEW BASELINES LAW
The proposed law will amend Republic Act No. 9522, the current Baselines Law, to specifically name and identify the maritime features in the West Philippine Sea (WPS) claimed or occupied by the country.
Retired Supreme Court Justice Francis H. Jardeleza proposed to President Rodrigo Duterte last June 5, 2021 the enactment of a new Baselines Law to enforce the 5-year old South China Sea Arbitral Award won by the Philippines in its maritime dispute with China.
“I sent a letter to the President [Rodrigo Duterte] expressing some concern that five (5) years have elapsed and yet the country remains divided in how best to enforce the Arbitral Award, even as the government has affirmed it as the State of the Nation Address and the Address to the United Nations General Assembly.” Jardeleza expressed during a press conference on June 7.
Jardeleza, who retired from the Supreme Court in 2019, was Solicitor General and agent of the Republic of the Philippines in the successful arbitral proceedings against China under the United Nations Convention of the Law of the Sea.
During an online press conference, Jardeleza explained the need of a new Baselines Law. First, under international law, legislation is an act of sovereignty that establishes territorial title. However, such legislation must pertain to the disputed territory rather than to a general territorial or maritime area. The proposed legislation names the individual features; thus, it constitutes an act of sovereignty in relation to each feature.
Second, the Arbitral Tribunal declared that no littoral state, including the Philippines, can claim the Spratly Islands as an archipelago. Thus, it is no longer enough to merely refer to the features as Kalayaan Island Group or Troung Sa, or Nansha Qundao. Rather, the features in the Spratly Islands must be treated as individual rocks with individual territorial seas (TS). The bill not only enforces the Award but also “ensures that the Philippines is the first claimant” to legislate the individual names and baselines of the claimed features.
Third, the Award recognized the EEZ and CS of the Philippines up to the limit of 200 nautical miles (nm)from the baselines but beyond the 12 nm TS of High Tide Elevations (HTE) or rocks. As some of these rocks and their TS are occupied by a foreign state, it is necessary to delineate where the contested TS ends and where our uncontested EEZ begins.
“This bill is the most inexpensive and yet most effective means of enforcing the Arbitral Award and strengthening our territorial and maritime rights in the WPS”. Jardeleza said.