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With Due Respect

Who owns Benham Rise?

Benham Rise, also known as Benham Plateau, is an elevated portion of the ocean floor about 250 kilometers east of Northern Luzon. It is said to have a humongous area of 24 million hectares (dwarfing Luzon’s 10.5 million). Its sea depth varies from 50 to 5,000 meters.

Brief background. This geological feature is named after Adm. Andrew Benham who served in the US Navy during the American civil war.

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Though huge and rich in mineral and other resources, it was largely ignored until the United Nations Convention on the Law of the Sea (or Unclos) was signed on Dec. 10, 1982, in Jamaica, and “entered into force for the Philippines on 16 November 1994.”

To preserve our rights under this international agreement, our Congress enacted, and President Gloria Macapagal-Arroyo approved, Republic Act No. 9522 defining “the baselines of the territorial sea of the Philippines.” On Aug. 11, 2011, the Supreme Court upheld the law’s constitutionality in Magallona vs Ermita, penned by Justice Antonio T. Carpio.

This law and the decision upholding it are significant because they paved the way for the approval on April 12, 2012, of the Philippine application to be internationally recognized as an “archipelagic state” by the UN Commission on the Limits of Continental Shelfs (CLCS), inspiring a then Cabinet member to exclaim: “We own Benham Rise now!”

The exclamation was a little exaggerated and legally inaccurate (as I will later explain) but, indeed, the approval gave the Philippines the legal imprimatur to exploit and manage the natural resources of the littoral ocean.

Four exclusive rights. Specifically, the CLCS recognized the baselines established under RA 9522 from which arose our maritime rights to the:

1) “Territorial sea,” to be counted 12 nautical miles (NM) from these baselines, in which the sovereignty of the Philippines as an “archipelagic state” extends beyond its land territory to “the air space over [the territorial sea] as well as to its bed and subsoil.”

2) “Contiguous zone,” to be counted 24 NM from the baselines so our country “may … prevent infringement of its custom, fiscal, immigration or sanitary laws and regulations…”

3) “Exclusive economic zone,” to be counted 200 NM from the baselines, where our country has “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and subsoil … such as the production of energy from the water current and winds.”

4) “Continental shelf,” which “shall not exceed 350 NM from the baselines,” also for the purpose of “exploring and exploiting its natural resources…” exclusively “in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.”

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The approval by the CLCS of the baselines described under RA 9522 was not simple or easy because of the complicated curvature of the shoreline of Luzon and the various ways of computing the connecting points.

With this approval, the Philippine rights to Benham Rise have become incontestable, unlike our claims to the Spratlys and Scarborough Shoal, which—despite our arbitration victory—are fraught with conflicts with other states, notably China.

In contrast, China has publicly conceded our maritime rights over Benham Rise, even if it, like all other states, is granted “innocent passage.” And even here, the Philippines has the right 1) to “suspend temporarily” the right of innocent passage “if such suspension is essential for the protection of its security,” and 2) to “designate sea lanes and air routes … for the passage of foreign ships and aircraft.”

So, who owns Benham Rise? We own the territorial sea (12 NM) but nobody owns the huge balance, except that the Philippines enjoys exclusive maritime rights over it in a somewhat similar way that we may not own the sidewalk adjacent to our homes but we have rights over it to protect our security, health and wellbeing.

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TAGS: artemio v. panganiban, Benham Plateau, Benham Rise, Inquirer Opinion, With Due Respect
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