Scarborough issuesBy Fr. Joaquin G. Bernas S. J. |Philippine Daily Inquirer
Both the Philippines and China continue to assert sovereignty over the same area in the South China Sea. We therefore have an “international dispute,” an element necessary before one can go to an international court. We want to settle the dispute through the judicial resolution provision in the United Nations Convention on the Law of the Sea (Unclos); but China does not. That is the bind we are in.
Suppose, however, that China eventually agrees to go to court. Can the Unclos be the source of resolution? If we appeal to the convention, will we be contradicting ourselves, as some claim, by laying claim to an area which is outside the geographical limits of Philippine territory as delineated in the Treaty of Paris?
Indeed, the Treaty of Paris is a good starting point. But the treaty is an 1890 document drafted and entered into on the basis of the understanding of what maritime laws were at that time and their limitations. At that time the division of the law of waters was only between the territorial sea and the high seas. It said nothing beyond territorial waters. However, more jurisdictional divisions beyond territorial waters have developed since 1890.
The territorial sea, as originally conceived, was the body of water which a coastal state could defend with the current range of cannons, a rather short distance. This was later expanded to the present 12 nautical miles. Within the territorial sea a coastal state could exercise certain restricted rights. Beyond the territorial sea were the high seas which were open to use and exploration by all.
Things have changed radically since the early development of international law. The division into territorial sea and high seas is still there. But there have now come to be recognized certain zones of jurisdiction beyond the territorial waters. These developments are functional and resource-oriented and have come to threaten those who rely on traditional maritime rules. Thus, when you read of 22 Chinese vessels preventing Filipino vessels from entering the area around Scarborough Shoal, this is the problem we want the Unclos to resolve. The Unclos is not just a codification of customary international law but also goes beyond traditionally accepted rules.
What are the new developments? First of all, we have to think of baselines. The Unclos allows states to draw baselines along the low water mark surrounding a coastal state. The baselines can either follow the indentations of the coast or they can be straight lines drawn from point to point. Straight baselines are allowed in archipelagos like the Philippines. Following the Unclos, we drew our baselines through the adoption of Republic Act 9522 modifying an earlier law.
The baselines are important because the various zonal jurisdictions begin from there. Inward from the baselines are the internal waters over which a state exercises the same kind of jurisdiction it has over land. Outward from the baselines are 12 nautical miles of territorial sea. This is still traditional international law. But recently there have been recognized, beyond the territorial sea and within the high seas, new zones of limited jurisdiction. These new zones of limited jurisdiction are the contiguous zone (24 nautical miles), exclusive economic zone (200 nautical miles), and the continental shelf. These are covered by complicated rules that are under the Unclos. In some areas there has also been recognized an exclusive fish zone (200 nautical miles).
The new zones, especially the exclusive economic zones of neighboring states, can overlap. The rules for resolving overlapping jurisdictions are also found in the Unclos. The Philippines has been asking China to go to court to resolve issues that have arisen in the Scarborough area. We also have issues with other neighboring states. These too will eventually have to be resolved through the Unclos.
The problem we have with China is not just about waters but also about land area. A state’s claim to any portion of the sea begins from its terrestrial jurisdiction. We have conflicting terrestrial jurisdiction with China. We are claiming land areas that are outside the lines drawn by the Treaty of Paris. The challenge for us is to be able to justify our claims under the present state of international law. Merely citing the shape or date of old maps will not settle the issues. The Philippines will not abandon its claim simply on the basis of the lines of the 1890 Treaty of Paris. We should not surrender our claims simply on the basis of old maps. There is new international law jurisprudence on conflicting land claims which have to be studied to see how applicable it is to the current conflicting claims. This is a challenge to the Philippine government.
Is solidifying our claim to terrestrial area essential to winning our maritime claims? Under RA 9522 we reasserted our claim to a “regime of islands” outside the Philippine archipelago. Islands, according to the Unclos, also have their maritime jurisdiction. (I am not sure if Scarborough Shoal qualifies as an island under Unclos.) But the waters there are 120 nautical miles off the Zambales mainland, or within our exclusive economic zone. That is one basis of our claim, a good point to start from.
P.S. Incidentally, Dr. Benito Legarda Jr. corrected me when I said in a previous column that Bajo de Masinloc means Below Masinloc. He is right. I have found since then that “Bajo” is the old form of “bajio” which means shoal.
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